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Lawyers for Sappington blamed the four-day killing
spree on a history of schizophrenia and daily use of the hallucinogenic
drug PCP. Sappington himself claimed that voices in his head which told
him to eat flesh and blood or he would die.
Sappington was convicted on June 23, 2004 of
murdering Terry T. Green, 25, Michael Weaver Jr., 22, and Alton "Fred"
Brown Jr., 16 in April 2001. Sappington was convicted on December 10,
2004 of an attempted aggravated robbery and murder of David Mashak at
his auto dealership in March 2001. Sappington's conviction was affirmed
by the Kansas Supreme Court on November 2, 2007.
In an April 2001 videotape, Sappington had confessed
to stabbing Weaver to death, leaving Green's body in a car, and shooting
Brown, before dismembering his body and eating a small piece of his leg.
Sappington is currently serving four consecutive life sentences.
Marc Sappington, 25,
was convicted of murdering three aquantinces on June 23, 2004. Lawyers
for Sappington blamed the four-day killing spree in April of 2001 on a
history of schizophrenia and use of the hallucinogenic drug PCP.
Sappington himself, claims that he was instructed to kill by voices in
his head which instructed him to eat flesh and blood or die. His victims
included Terry Green, 25, Michael Weaver Jr., 22, and Alton "Fred" Brown
Jr., 16.
In an April 2001 videotape, Sappington had confessed
to stabbing Weaver to death, leaving Green's body in a car, and shooting
Brown, before dismembering his body and eating a small piece of his leg.
As of June 2004, prosecutors were seeking three
consecutive terms of 50 years without the possibility of parole.
by Seamus McGraw
Muttering Retreats
No one paid much
attention to Marc Sappington in March 2001 as he ambled along the side
streets of Kansas City, Kansas. As he walked, Sappington weighed his
options. “What about him?” he asked. “What about her?”
The questions were part
of an attempt to quell the voices Sappington was hearing in his head.
These voices – auditory hallucinations – were commanding him to harvest
human blood and flesh. And what if he didn’t comply? The voices had an
answer. They would kill the 21-year-old churchgoer.
“He feared for his own
safety,” said one cop who questioned Sappington.
Eventually, Sappington
submitted to the imaginary demands. He killed four people, two of them
in a single day. The murders were grisly. Sappington tried to suck the
blood of two his victims, both of whom were also his friends. This
effort in phlebotomy earned him the sobriquet, “Kansas City Vampire.” In
another instance, he hacked a 16-year-old’s body into bite-size morsels
that he consumed in his mother’s basement.
But what truly shocks
about Sappington is not the savagery of his crimes. It is his very
ordinariness. Cops who have spoken to him say he is bright and
articulate, even funny. Yet, the pathology is never too far away. In one
interview with a Kansas City homicide detective, Sappington asked
facetiously if he could chomp on the cop’s leg.
But Sappington remains
somewhat of a mystery to veteran investigators, defying almost every
known profile of a serial killer or a cannibal.
Serial killers tend to
be older, usually in their thirties; it takes them a while to build up a
pattern. Sappington is young and so were his victims. Moreover, his
alleged serial spree was unusually sudden.
Serial killers also tend
to sexualize their crimes and never more so than when cannibalism is
involved, law enforcement experts say. Jeffrey Dahmer is a case in
point. He described his cannibalism as the ultimate act of sexual
control. But Sappington, the cops say, showed no sign of sexual
deviance.
And, of course, serial
killers - with the noted exception of the Atlanta child killer Wayne
Williams a generation ago - are almost always white. Sappington is
African-American, as were all of his alleged victims.
So how did this charming
young man, with a quick smile and a quicker wit, become a conniving
cannibal?
A
World of Church Bells and Sirens
Sappington grew up on
the north side of Kansas City, a world punctuated by church bells and
police sirens. It’s a place where Sunday morning preachers paint vivid
word pictures of Hell, and congregants don’t have to look very far to
find it.
Abject poverty is as
common as welfare. The African-American infants there – like their
counterparts in the rest of the country – have a mortality rate twice
that of white babies. While politicians thump their chests about
declining crime rates, somehow the crime reductions never seem to happen
in places like Kansas City’s north side.
But it’s also a
neighborhood where thousands of decent people try to scrape by, a place
where single mothers do what they can to keep their kids from falling
into the traps of crime and violence.
Sappington’s mother was
one of them. A hard-working single mom who relied on her religion for
solace, she had struggled to raise her son, Marc, alone. The boy’s
father vanished before Marc was born. In fact, Marc never even met the
man. That meant that his mother had to be particularly strong, and one
of the ways she tried to instill a set of values in her son was to drag
him to church every Sunday.
For the most part, her
efforts appeared to succeed. Sappington developed into something of a
choirboy, a rarity in a neighborhood where gangsta wannabes ruled the
streets.
Although never a
particularly good student, Sappington’s intelligence was revealed in a
quiet charm. His engaging personality drew people to him – teachers,
parents and other kids. Among the kids was Freddie, a skinny little
16-year-old whose real name was Alton Brown. Freddie genuinely admired
Sappington. He saw him as something of a big brother, authorities would
later say.
By that point though,
Sappington was hardly the perfect role model – despite his mother’s best
efforts. As he reached adolescence, Sappington acquired a taste for PCP,
a drug which some say can make users paranoid, even psychotic.
Sappington loved his “danks,”
the street slang for cigarettes soaked in embalming fluid, dried and
then smoked. Typically, his drug use resulted in a few minor and routine
encounters with the police.
“There were never any
crimes against people,” says Jerry Gorman, the assistant Wyandotte
County prosecutor who is handling Sappington’s case.
At least not until March
16, 2001.
The
Uncovering
They had been in the
interrogation room for hours, but no matter what Lt. Vince Davenport and
his two detectives asked, the reply was always silence. They tried to
sweet-talk Sappington, cajole him, frighten him, and nothing worked.
“There’s gotta be a
way,” Davenport thought. Experience had taught him that there’s often
one question using just the right words in just the right tone that can
break down all resistance, and make a killer open up. This time, though,
Davenport was having a hard time finding the right words.
Davenport knew better
than to press his luck. Besides, it was getting late. As he fumbled to
put on his coat, he promised himself that he’d do better the next day.
He’d find the magic words.
Without looking up,
Sappington began to speak. At first, Davenport wasn’t sure that
Sappington had said anything at all. But the young man repeated the
words.
Murder was one thing.
But this was a different thing altogether.
“Vampirism.
Cannibalism.” Davenport repeated.
The violence had begun a
few months earlier. While trolling the streets of his north Kansas City
neighborhood, Sappington struck up a casual friendship with a young man
named Armando Gaitan.
The younger Gaitan was
the exemplar of everything that Sappington’s mother had tried to
prevent. Gaitan, was a gangsta wannabe, the cops say, a budding young
tough guy who believed that he could and should live by the code of the
street.
Then, in early March,
Gaitan and Sappington got their hands on an assault rifle. It was a
beautiful gun, the kind of weapon that lends status to a young street
tough. But the only way to make themselves – and the rifle -- truly
important was to use it.
So they hatched a plot
to pull off an armed robbery. They didn’t have any particular target in
mind, Lt. Davenport said later. They were just searching for a random
target. The one they found was David Marshak.
What Gaitan had in mind
was straightforward.. They’d walk up to Marshak, show him the gun,
demand cash and jewelry, and that would be the end of it. Gaitan would
do the talking; all Sappington had to do was brandish the rifle’s
polished steel.
Like most people in
these circumstances, Marshak did not resist. But Marshak’s cooperation
did nothing to help him. For reasons that not even Sappington can
provide, authorities say, Sappington opened fire and killed Marshak.
Suddenly, Sappington had entered the world of homicide.
After the murder, Gaitan
fled to Texas, while Sappington stayed in Kansas City. Although Gaitan
was arrested a short time later, he refused to tell police the shooter’s
identity.
Shame and Fear
Back in the Kansas City
interrogation room, Sappington had begun to talk – and talk and talk. He
offered a detailed and emotional recounting of his crimes. He spoke of
how he had drank blood and eaten flesh.
As Sappington’s story
unfolded, another question arose. What had prevented Sappington from
talking in the first place? The answer his inquisitor, Lt. Davenport,
believed stemmed from his religious upbringing.
Simply put, “It was
shame,” Davenport said.
Curiously though,
Sappington’s god-fearing instruction had no effect on the nature of the
voices he heard or how he responded to them. Typically, those suffering
from the sorts of delusions Sappington endured attach to them some
supernatural significance. They are commands from God or Satan, or both.
Yet Sappington never
offered a rationalization – aside from fear of punishment the voices
vowed were in store if he didn’t act on their commands -- as to why
he followed their instructions. If anything, it is that logical gap in
Sappington’s madness which makes his case so unusual.
As controlling as the
voices were, telling Sappington when to kill and what to do afterwards,
they never selected the victims. That was left to Sappington. And
Sappington’s methodology was chance.
“The really scary thing
is that the victims could have been anybody,” Davenport said. “He talked
to me about going out on the street...and looking at people, asking the
voices in his head ‘What about him? What about her?’ These people never
knew that it could have been them, they could have been killed and
eaten.”
On
the Hunt
Sappington searched for
three weeks before finding his first victim. Despite Sappington’s
perambulations in search of a stranger, the person he alighted upon was
a neighborhood friend.
Terry T. Green, 25, was
a longtime friend of Sappington’s. They would often spend time at each
other’s homes. So there was nothing atypical when Green showed up
unannounced at Sappington’s door on April 7, 2001. It was, Davenport
later said, just an extreme case of “being in the wrong place at the
wrong time.”
Soon, according to
Sappington, the voices took over. They told him to lure Green to the
basement of his mother’s home. They also told Sappington to attack Green
with a hunting knife that he had hidden in one of the basement’s
corners.
The slaying happened
with such fury and ferocity that the walls of the basement were
splattered with blood, crime scene investigators noted. With Green
lifeless on the floor, the voices allegedly told Sappington that they
had one more command for him.
Obeying the voices,
Sappington later said, he knelt down over the body of his friend, and
began to lap up his blood. But Sappington left the task unfinished. He
heard a noise and the voices told Sappington to dispose of the body
immediately.
Sappington could not
have picked a more obvious place to dump Green’s remains. Using his
mother’s car, Sappington crossed the river and entered Kansas City,
Missouri. Sappington then drove to the edge of a parking lot at a
nightclub he and Green frequented. He dumped the covered body into a
car’s backseat.
Of course it didn’t take
long for the Missouri police to find the body. The Missouri police saw
the homicide as a Missouri crime. Although Kansas City, Kansas,
authorities heard about the discovery, they were simply relieved that
they did not have another murder on their hands.
“We heard about it,”
said Gorman, the Kansas prosecutor. “But we figured it was their murder
and we have enough murders of our own.”
It took police three
days to link Sappington to Green’s murder. But now that his killing
spree was finally underway, Sappington managed to kill two more people
before his capture.
Serial Killer
Twenty-two year-old
Michael Weaver -- another friend of Sappington’s -- was next.
It was April 10, just
three days after Green’s death. The voices told Sappington to go hunting
again, and despite the arduous selection process he used for the second
time, Sappington wound up with a victim much like Green.
Sappington spotted
Weaver sitting on the steps of his house. The pair struck up a
conversation with Sappington suggesting they go for a drive in Weaver’s
car. In a shadowy alley only three blocks from Sappington’s home, he
fatally stabbed Weaver.
Then Sappington went
through the Terry Green routine. The voices told him to drink Weaver’s
blood, but he soon abandoned the task out of fear of discovery.
Sappington fled, leaving the body behind.
Sappington had killed
three people -- Marshak, Green and Weaver. With a trio of homicides
behind him, Sappington was officially now a serial killer.
That murder tally did
not last long, however. On his way home from the Weaver murder,
Sappington spotted “Freddie,” the teenager who adored Sappington. The
voices liked the new target, and Sappington invited Freddie back to his
house.
This time Sappington
used a shotgun to kill. Finally, Sappington was free of distractions and
could quaff blood. But there was one more ingredient.
Sappington crudely
butchered Freddie’s body, and then proceeded to feast upon raw flesh.
His repast complete, he stuffed what was left of Freddie into a trash
bag, leaving his leftovers on the basement floor. Then Sappington left
the house, beginning what could be considered a postprandial stroll.
Endgame
Sappington’s mother
discovered the crimson-drenched scene a few hours later. Although she
rarely ventured down to the basement – which was considered her son’s
territory – she could hardly ignore a trail of blood drops near and
along the cellar stairs.
After she had a
panoramic view, Sappington’s mom called police.
It didn’t take long for
the cops to find Sappington on the street. But Sappington decided to
flee, commandeering a passing car. He forced the female driver into the
passenger seat and led police on a brief chase.
Back at the youth
detention center, Armando Gaitan, the co-conspirator in the robbery that
led to Sappington’s first murder, was still refusing to name his
accomplice. Based on a sketchy description from a witness to the
hold-up, police began to suspect that Sappington was the killer.
So Gaitan’s
interrogators deployed perhaps the most effective tool in police work:
the truth. They told Gaitan about Sappington’s other horrific murders.
Realizing that he was no longer protecting another neighborhood street
thug, but rather, a homicidal psychopath, Gaitan named Sappington.
The
People vs Marc Sappington
It’s been nearly a year
since Sappington’s arrest, and he has remained in custody in the
Wyandotte County Jail on $2 million bail.
He has undergone a
battery of psychological and psychiatric tests. Although some
prosecutors say privately that they doubt Sappington’s story about the
“voices,” even the most cynical observer must conclude that this
defendant suffers from severe mental illness. As a result, prosecutors
have chosen not to seek the death penalty.
Instead, they expect --
and hope -- that the court proceedings that began in January 2002 will
end up with Sappington committed for the rest of his life in a state
mental hospital.
Bibliography
This article was based
primarily on interviews with WyandotteDistrict Attorney Jerry Gorman and Kansas City Police Lt. Vince
Davenport, with additional materials from KNBC TV
”Friends: Sappington Was
'Heavy' Smoker. Cigarettes Dipped In Embalming Fluid May Have Played
Role In His Mindset”
KANSAS CITY, Kan., April 16, 2001
CrimeLibrary.com
IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,415
STATE of KANSAS, Appellee,
v. MARC VINCENT SAPPINGTON, Appellant.
SYLLABUS BY THE COURT
1. Instructions are clearly erroneous if the
appellate court finds there is a real possibility the jury would have
rendered a different verdict if the trial error had not occurred.
2. It is the duty of the trial court to properly
instruct the jury upon a party's theory of the case.
3. It is fundamental to a fair trial that the accused
be afforded the opportunity to present his or her theory of defense.
Under the facts of this case, imposing a defense upon a defendant which
is arguably inconsistent with the one upon which he completely relies–
by providing the jury a defense instruction that neither party requests–would
be akin to denying the defendant the meaningful opportunity to present
his chosen theory of defense. A sua sponte instruction on
voluntary intoxication would run the considerable risk of improperly
interfering with defendant's chosen mental disease or defect defense and
resultant trial strategy.
4. A district court's refusal to appoint new trial
counsel is reviewed under an abuse of discretion standard, which asks
whether any reasonable person would take the view adopted by the
district court. The burden is on the party alleging the abuse.
5. To warrant the appointment of new trial counsel, a
defendant must show "justifiable dissatisfaction" with appointed counsel.
Justifiable dissatisfaction may be demonstrated by showing a conflict of
interest, an irreconcilable conflict, or a complete breakdown in
communications between counsel and the defendant. But ultimately, as
long as the trial court has a reasonable basis for believing the
attorney-client relationship has not deteriorated to a point where
appointed counsel can no longer give effective aid in the fair
presentation of a defense, the court is justified in refusing to appoint
new counsel.
6. Whether otherwise relevant evidence is cumulative
is a matter of discretion for the trial court.
7. As a general rule, a motion for a mistrial is
reviewed under an abuse of discretion standard, and the party alleging
the abuse bears the burden of proving that his or her substantial rights
to a fair trial were prejudiced.
8. It is necessary when justice so requires to
declare a mistrial where there is some fundamental failure of the
proceeding. When an event of prejudicial misconduct, the damaging effect
of which cannot be removed by admonition and instruction, is presented
to the jury, the trial judge must declare a mistrial.
9. An appellate court employs a two-part test to
evaluate alleged violations of a motion in limine: (1) Was there a
violation of the order in limine and (2) if so, did the violation
substantially prejudice the defendant? The burden to show substantial
prejudice is on the defendant.
Appeal from Wyandotte district court, J. DEXTER
BURDETTE, judge. Affirmed. Opinion filed November 2, 2007.
Sarah Ellen Johnson, of Kansas Appellate
Defender Office, argued the cause and was on the brief for appellant.
Jerome A. Gorman, district attorney, argued
the cause, and Paul J. Morrison, attorney general, was with him
on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: Marc Vincent Sappington directly appeals
his convictions of three counts of first-degree murder, one count of
kidnapping, and one count of aggravated burglary against four different
victims. Our jurisdiction is under K.S.A. 22-3601(b)(1), conviction of
an off-grid crime.
Approximately 2 months after these convictions,
Sappington was also convicted of first-degree felony murder and
attempted aggravated robbery for a different episode. His appeal from
those convictions is the subject of State v. Sappington, (No.
94,416, this day decided).
The issues on appeal, and this court's accompanying
holdings, are as follows:
1. Did the district court err in failing to instruct
the jury on the defense of voluntary intoxication? No.
2. Did the district court err in refusing to grant
Sappington's request for new counsel? No.
3. Did the district court err in refusing to allow
the defense to put on certain evidence about Sappington's mother's
schizophrenia? No.
4. Did the district court err in refusing to declare
a mistrial after the State began to play the videotape of the wrong
confession in open court? No.
Accordingly, we affirm the district court and
convictions.
FACTS
Between April 7 and April 10, 2001, three young men
in a Kansas City, Kansas, neighborhood were murdered and a woman was
kidnapped. Marc Sappington confessed to the crimes, and many of the
following facts are contained in his confession.
Terry Green
Early in the morning of April 7, 2001, Sappington
killed Terry Green by stabbing him at least four times in Sappington's
back yard. Sappington was afraid that someone had seen what he did, so
he covered the body with a blue tarp and placed it in the back of
Green's car. He then parked the car in an antiques mall parking lot in
Kansas City, Missouri. The car and Green's body were discovered in the
afternoon of April 10, 2001.
Michael Weaver
On the morning of April 10, 2001, Michael Weaver's
body was found slumped in the front seat of a car parked in an alley
near his house.
Weaver and Eric Fennix, Sappington's best friend,
were step-brothers. Alice Wilson, Fennix's mother, testified that she
lived in a house with Fennix, Fennix's fiancé, Myah, and Weaver. Wilson
was awakened early in the morning of April 10 when Sappington knocked on
the front door, saying he needed a screwdriver. She told him to look in
the kitchen. He watched television with Wilson for awhile then went
upstairs to get a jacket. About 10 minutes later he ran down the stairs
and out the back door.
After Sappington left Fennix's house, he stayed in
the back yard for several minutes as voices in his head told him to eat
flesh. Weaver arrived in the yard a few minutes later. Using a knife
Sappington had grabbed while in Fennix's kitchen, he stabbed Weaver. The
wound went from Weaver's back completely through his chest. Weaver tried
to get in his car and drive away, but crashed into a light pole. A
neighbor was awakened by the crash and called the police. Within moments,
Sappington heard sirens, so he attempted to move the car away from the
accident scene. He abandoned it in a nearby alley before the police
arrived.
Fred Alton Brown
Sappington claims that he had not satisfied the
commanding voices in his head, so he killed Fred Alton Brown on April 10
as well. Just hours after killing Weaver, Sappington invited Brown to
come to his house and smoke some "wet." The two went to Sappington's
basement, where Sappington shot him in the back with a shotgun.
Sappington cut off a piece of Brown's leg and tried to eat it. It made
him sick, so he went upstairs and fried it. He ate the cooked flesh and
drank some of Brown's blood. Sappington then used a maul and knife to
dismember the body.
Anita Washington
Around 9:30 p.m. on April 10, Anita Washington, who
lived in the same neighborhood, returned home from the grocery store.
While she was parked in her driveway, Sappington knocked on her car
window and pointed a gun at her. He got in the back seat and told her to
drive to Kansas City, Missouri. Sappington kept saying that he was a "dead
man." At some point, he told Washington to pull over so he could drive.
After doing so, she exited the car and ran to the nearest house, where
she called the police.
Sappington was apprehended on April 12, 2001. He was
taken to the police station where he was Mirandized and then
confessed to all three homicides as well as the kidnapping. The
confession was videotaped. After confessing, Sappington took detectives
to where he had dumped a piece of Weaver's t-shirt, the keys to Weaver's
car, and to another location where he had dumped the keys to Green's
car. He was later charged with three counts of first-degree murder and
with one count each of kidnapping and aggravated burglary.
Sappington suffers from schizophrenia and admitted
using PCP (phencyclidine) during April 2001. In addition to hearing
voices telling him to "eat flesh and drink blood" or he would die, he
also claims that during that time he suffered from other aural and
visual hallucinations. He relied upon the "not guilty by reason of
mental disease or defect" defense, claiming that his schizophrenia
rendered him incapable of possessing the required criminal intent to
commit the charged offenses.
The case was continued several times over 3 years
because of alternating periods of Sappington's competency/incompetency.
Sappington was evaluated primarily by Dr. William S. Logan, a
psychiatrist, who met with Sappington 13 times over that entire period.
Sappington was ultimately deemed competent to stand trial in July 2004
and went to trial later that month.
Through Dr. Logan's evaluations, he determined that
Sappington suffered from schizophrenia at the time of trial, but he was
not able to definitively state that Sappington suffered from
schizophrenia in April 2001. Dr. Logan also testified that the effects
of PCP use and the symptoms of schizophrenia are virtually the same.
In July 2004, a jury found Sappington guilty of all
charges. He received consecutive sentences of three life terms for the
first-degree murders, 79 months for the kidnapping, and 32 months for
the aggravated burglary.
More facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: The district court did not err in
failing to instruct the jury on the defense of voluntary intoxication.
Sappington admits that he relied solely upon the
defense of mental disease or defect under K.S.A. 22-3220. Nevertheless,
he contends that the district court erred in failing to independently
instruct the jury on the voluntary intoxication defense because there
was evidence indicating that he was suffering from a PCP-induced
psychosis at the time he committed these crimes. The State responds that
Sappington did not request this instruction and accordingly the failure
to provide it was not clearly erroneous.
We agree that Sappington did not request or object at
trial to the omission of a voluntary intoxication instruction; therefore,
a clearly erroneous standard would typically apply. K.S.A. 2006 Supp.
22-3414(3); State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d
125 (2006). Instructions are clearly erroneous if the appellate court
finds "'"there is a real possibility the jury would have rendered a
different verdict if the trial error had not occurred. [Citation omitted.]"'"
Cooperwood, 282 Kan. at 581.
As evidentiary support for the instruction,
Sappington argues that when first interviewed in late April 2001, he
told Dr. Logan that he attributed the command voices in his head to his
PCP use. He also told the police that he was using PCP regularly
throughout April 2001, and he claimed that the command voices coincided
with heavy PCP use. In his confession, Sappington told the detectives he
had been "smoking wet" prior to the crimes. Additionally, during the
State's cross-examination of Dr. Logan, the prosecutor asked, "As a
matter of fact, he told you . . . that later in that day, he used and
when he's talking about the Weaver homicide, he used more wet and began
to think he needed to drink blood again. And obviously there he
associated the–the usage of the drug with having to drink blood, correct?"
Sappington reinforces his evidentiary support by
showing that during the State's closing argument, the prosecutor himself
appeared to claim that Sappington's behavior was not due to the mental
disease of schizophrenia but due to his voluntary use of PCP. The
prosecutor then further appeared to argue that voluntary intoxication
was no defense, telling the jury:
"So what Mr. Sappington was trying to tell you is,
well, I took some drugs and I voluntarily took these drugs and when I
killed somebody because I took drugs, you ought to just find me not
guilty. You ought to just say that I'm not guilty because of mental
disease or defect because I went out and chose to use drugs voluntarily.
"Ladies and gentlemen, that's not a defense.
That's not a defense at all.
. . . .
"Even if you think these voices that you heard
because you took the drugs wants you to drink his blood and eat his
flesh, not an excuse at all. The only way it would be an excuse is if he
had this legitimate mental disease or defect. . . . It was the drugs
that caused him to hear the voices.
. . . .
"[W]e have evidence through his own statement that he
was using drugs and it was the drugs that caused it . . . ." (Emphasis
added.)
Apparently the prosecutor was attempting to make the
point that under Sappington's sole theory of defense in this particular
case, voluntary PCP use was not a defense; only a "natural" defect like
schizophrenia would qualify as his purported mental disease or defect.
The prosecutor explained he was arguing that Sappington had conveniently
changed his story from PCP-induced psychosis to schizophrenia only after
his counsel had filed the notice of reliance on the defense of mental
disease or defect under K.S.A. 22-3219. Consequently, he points out that
throughout the later trial, Sappington attempted to establish that he
had schizophrenia in April 2001 and that his behavior was a result of
that condition, not PCP use. Sappington seems to primarily characterize
the prosecutor's comments as an admission that sufficient evidence of
PCP use was present to require an instruction on voluntary intoxication.
The prosecutor's argument could be viewed as an
assertion that voluntary intoxication is never a legal defense, which is
incorrect. While voluntary intoxication is not a complete defense, it is
a defense to specific intent crimes. See K.S.A. 21-3208(2). Murder in
the first degree–three of the charges in the instant case–is a specific
intent crime. K.S.A. 21-3401. Nevertheless, we hold that Sappington's
failure to request the voluntary intoxication instruction is fatal to
his argument.
Sappington did not rely on the defense of voluntary
intoxication. While there is evidence of voluntary intoxication through
PCP use, Sappington elected to proceed strictly under a mental disease
or defect defense. "'"'It is the duty of the trial court to properly
instruct the jury upon a party's theory of the case.'"'" In re Care
& Treatment of Foster, 280 Kan. 845, 864, 127 P.3d 277 (2006). As a
result, after Sappington requested instructions only on the mental
disease or defect defense, the district court instructed on only that
theory.
We acknowledge the general rule in criminal cases is
that even inconsistent defenses are generally permissible. State v.
Hunter, 241 Kan. 629, 643, 740 P.2d 559 (1987). We specifically
acknowledge that "a defendant in a criminal case may rely upon voluntary
intoxication to show a lack of specific intent even though he also
relies upon other defenses which may be inconsistent therewith."
State v. Shehan, 242 Kan. 127, 131, 744 P.2d 824 (1987). But we
further acknowledge that "it is fundamental to a fair trial that the
accused be afforded the opportunity to present his or her theory of
defense," State v. Humphrey, 252 Kan. 6, 14, 845 P.2d 592
(1992), and believe that imposing a defense upon a defendant which is
arguably inconsistent with the one upon which he completely relies–by
providing the jury a defense instruction that neither party requests–is
akin to denying the defendant the meaningful opportunity to present his
chosen theory of defense. A sua sponte instruction on voluntary
intoxication runs the considerable risk of improperly interfering with
Sappington's chosen defense and resultant trial strategy, which were
presumably selected after consideration, and rejection, of other
alternatives.
We note, for example, that K.S.A. 21-3107(3) formerly
provided: "It is the duty of the trial court to instruct the jury,
not only as to the crime charged but as to all lesser crimes of which
the accused might be found guilty . . . upon the evidence adduced." (Emphasis
added.) And our cases interpreted that language to essentially impose a
sua sponte obligation to instruct on the trial court. See,
e.g., State v. Boyd, 216 Kan. 373, 376, 532 P.2d 1064
(1975) (duty to so instruct even though such instructions have not been
requested or have been objected to). That provision–which concerns types
of inconsistent defenses, e.g., the difference between the
elements of the crime charged and its lesser included offenses–was
eliminated by the legislature in 1998. Accordingly, at present we can
see no valid reason to require district courts to instruct juries on
every possible theory of defense for which some evidence has been
presented when the defendant has not relied upon that defense. In short,
in the instant case the district court did not err in failing to
instruct on voluntary intoxication.
Issue 2: The district court did not err in
refusing to grant Sappington's request for new counsel.
Sappington next contends the court erred in denying
his multiple requests for new counsel.
The State basically responds that his counsel did a
commendable job under difficult circumstances. We independently observe
that over a 3-year span, from his April 2001 arrest through his July
2004 trial, Sappington was found mentally competent, then incompetent,
then competent, then incompetent, and then competent. Each of
Sappington's motions to change counsel was filed during periods of
competency, with the trial being conducted within the same month of his
latest competency determination.
A district court's refusal to appoint new counsel is
reviewed under an abuse of discretion standard, which asks whether any
reasonable person would take the view adopted by the district court.
State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). The burden
is on the party alleging the abuse. State v. White, 280 Kan.
333, 342, 161 P.3d 208 (2007).
Furthermore, to warrant substitute counsel, a
defendant must show "justifiable dissatisfaction" with appointed counsel.
Justifiable dissatisfaction includes a showing of a conflict of interest,
an irreconcilable conflict, or a complete breakdown in communications
between counsel and the defendant. McGee, 280 Kan. at 894. But
ultimately, "'[a]s long as the trial court has a reasonable basis for
believing the attorney-client relation has not deteriorated to a point
where appointed counsel can no longer give effective aid in the fair
presentation of a defense, the court is justified in refusing to appoint
new counsel. [Citation omitted.]'" State v. Ferguson, 254 Kan.
62, 70, 864 P.2d 693 (1993) (quoting State v. Banks, 216 Kan.
390, 394, 532 P.2d 1058 [1975].)
After being found competent to stand trial,
Sappington filed his first pro se "Motion for Relief of Court Appointed
Counsel" on March 25, 2002. He alleged that irreconcilable conflicts of
interest existed, specifically that he lacked confidence in attorney
Patricia Kalb's representation and that she was not providing "faithful
representation." Sappington later withdrew the motion with the hope that
he and Kalb "could work through the problems."
In January 2003 Sappington was found incompetent to
stand trial because, among other things, his attorney stated that voices
were telling him not to talk to her, and Dr. Logan determined that he
was unable to "consult with his attorney in preparing his defense." The
January trial was postponed. In April 2003, he was again found competent,
and trial was rescheduled for the following August.
On June 17 Sappington stopped taking his medications
and his counsel filed for a trial continuance. On July 9 he filed
another motion for relief of counsel. It was nearly identical in content
to the March motion except that it also alleged a "complete breakdown in
communication with his counsel."
On July 28, 2003, the court held a hearing on
Sappington's July 9 motion. There, Sappington told the court that Kalb
failed to comply with his "reasonable requests" or failed to do so in a
timely manner. Sappington provided the court with his letters to Kalb
requesting copies of statements of witnesses and the preliminary hearing
transcript. He also stated that Kalb failed to speak with him enough
regarding possible plea agreements and different aspects of his case.
Kalb testified that she had met with Sappington the
previous day to discuss their problems. She did not feel that their
problems were "that serious." Kalb stated that Sappington's mental
health problems had been the cause of many of the delays in this matter.
She admitted that it had taken some time to get the witness statements
from the State and that it had taken a while to get the transcript, but
that the "more important" issue was that she and Sappington were having
a "hard time" communicating regarding his theory of defense. Kalb seemed
to imply that this difficulty was largely due to Sappington's mental
status and stated that she had tried to convey to him her thoughts on a
defense.
The court denied Sappington's motion. It informed him
that the defendant always has the final say in his defense, that his had
been one of the more serious and complex cases in the county's recent
history, and that his mental status had caused some delay. It found no
legal sufficiency in Sappington's argument and stated that it would not
change counsel with a trial date set for 1 week from the day of the
hearing. The court concluded that Kalb had zealously guarded
Sappington's constitutional rights and that it could find no fault in
her representation.
Within the week, the August 2003 trial was postponed
because Sappington again stopped taking his medication, and he was again
found incompetent. Trial was eventually rescheduled for February 2004.
That trial was later postponed because of Sappington's continued
incompetence and Dr. Logan's characterization of his "partial
malingering."
In July 2004 Sappington was once again found
competent, and trial began on the 19th of that month. That morning
Sappington made an oral motion to dismiss counsel. He claimed there was
a conflict of interest, that Kalb lied to him on many occasions, and
that he did not trust her representation. When asked for more details,
Sappington said she lied that she would come see him and that she did
not bring him documents. He could not identify any specific documents or
occasions. Kalb denied ever lying to him and stated she had brought him
even more than he had ever requested, e.g., all witness
statements and the transcript.
The court again denied Sappington's motion, observing
that Sappington brought the motion the morning of trial. It also found
that there was no legal or factual basis for granting the motion and
referred to Kalb's representation as "first rate," adding it felt no
stone had been left unturned in Sappington's defense by his counsel. It
noted "[w]e have been anticipating coming to trial . . . since 2001" and
"every avenue in your defense has been explored taking considerable time
from this Court and all of the parties involved."
Sappington renewed his motion at the close of
evidence. He requested a mistrial because Kalb did not ask all of the
questions that he requested. Kalb responded that at least two of the
questions were irrelevant and the answers would not have been in
Sappington's best interest. Sappington claimed that throughout trial,
Kalb would not cooperate with his requests and that he did not believe
Kalb did everything she could have to defend him. After receiving this
information the court overruled the motion.
On August 27, 2004, Kalb argued a motion for new
trial, including at Sappington's request a claim that new counsel should
have been appointed. The court denied the motion, finding, among other
things, that no one could say that counsel had not performed competently
and nothing had ever led the court to believe that defendant and his
counsel were anything other than prepared to go to trial.
To begin our analysis, we note that in order to
determine whether to appoint new counsel, the district court must
conduct some sort of investigation. Here, the court satisfied this
requirement by fully hearing Sappington's complaints, both at the motion
hearing and certainly the trial, and fully hearing his counsel's
responses. The court further satisfied this requirement by its own
observations of counsel's performance over the course of 3 years. See
State v. Collier, 259 Kan. 346, 359, 913 P.2d 597 (1996).
Sappington had the same attorney, Kalb, throughout the instant case. Her
performance observed by the court included multiple actions to protect
Sappington's rights regarding his competency to stand trial and other
pretrial matters. The court concluded that Kalb had performed at a high
level of advocacy on Sappington's behalf.
The district court was also well aware of the unique
circumstances of this case. Throughout this lengthy process, an
overarching consideration was seeing if Sappington was capable of being
found competent to stand trial. As a result, the court was quite
cognizant of the substantial challenges any counsel would have faced
representing Sappington. In an analogous context, the court in State
v. Ferguson observed that a lack of communication between a
defendant and counsel does not automatically constitute a violation of
the Sixth Amendment right to counsel. 254 Kan. at 71. There, the court
agreed with the State that "'lack of communication between a defendant
and defense counsel due to a defendant's refusal to cooperate
is not of itself basis for reversal on grounds of ineffective assistance
of counsel.'" (Emphasis added.) 254 Kan. at 73-74. The Ferguson
court held that under the circumstances of that case, substitution of
counsel would have been futile.
In Sappington's case, there were multiple competency
and incompetency determinations. The district court was forced to
continue trial several times after finding that Sappington was not
competent to stand trial or able to assist in his own defense. Based on
the competency evaluations and Kalb's statement at the July 2003 hearing
on Sappington's motion, it is doubtful the appointment of substitute
counsel would have solved the communication problems. Concerning
Sappington's oral motion made on the first day of trial, he clearly
failed to establish a "complete breakdown of communication" between him
and counsel.
Another consideration is the timeliness of
Sappington's motion. This court has held that a request for substitute
counsel made on the first day of trial is not timely. State v.
Collier, 259 Kan. at 358-59. Although, as Sappington points out,
his oral trial motion was not his first request for new counsel, he has
provided no explanation for his delay in filing an additional request.
Finally, the record reveals that Kalb protected
Sappington throughout the case. She was diligent in monitoring
Sappington's mental health, frequently requesting a continuance or a
finding that Sappington was incompetent to stand trial at that time.
Kalb filed several motions throughout the case and was otherwise
diligent in presenting the best case possible. As the State points out,
several times throughout trial, Kalb requested a short break to meet
with her client. She also approached the bench on more than one occasion,
explaining to the judge that she would be asking questions that
Sappington requested that she ask. The State points out that defense
counsel "asked the court numerous times throughout the trial for a
moment to confer with her client." Sappington does not allege that he
disagreed with Kalb's trial strategy.
In light of the foregoing, the court had a reasonable
basis for believing that the attorney-client relationship had not
deteriorated to a point where Kalb could no longer effectively aid
Sappington in the fair presentation of his defense. Sappington failed to
show "justifiable dissatisfaction" with his counsel, e.g., a
complete breakdown in communications. Accordingly, the district court
did not abuse its discretion in denying Sappington's motions.
Issue 3: The district court did not err in
refusing to allow the defense to put on certain evidence about
Sappington's mother's schizophrenia.
Sappington argues that his right to a fair trial was
violated because the district court excluded certain evidence that was
an integral part of his theory of defense. See State v. White,
279 Kan. 326, 331, 109 P.3d 1199 (2005). The State responds that a
defendant's right to present his or her defense is subject to statutory
rules and case-law interpretation of rules of evidence and procedure.
See 279 Kan. at 331.
Our decision in State v. Gunby, 282 Kan. 39,
47, 144 P.3d 647 (2006), provides a road map for our analysis of this
evidentiary issue. When a party challenges the admission or exclusion of
evidence on appeal, the first inquiry is relevance. Unless otherwise
prohibited, all relevant evidence is admissible. K.S.A. 60-407(f). "Relevant
evidence" is "evidence having any tendency in reason to prove any
material fact." K.S.A. 60-401(b). A material or logical connection
between the asserted facts and the inference or result they are intended
to establish are necessary to establish relevance. 282 Kan. at 47 (citing
State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 [1999]).
Gunby further explained our possible
standards of review:
"Once relevance is established, evidentiary rules
governing admission and exclusion may be applied either as a matter of
law or in the exercise of the district judge's discretion, depending on
the contours of the rule in question. [Citation omitted.] When the
adequacy of the legal basis of a district judge's decision on admission
or exclusion of evidence is questioned, we review the decision de novo."
282 Kan. at 47-48.
Because the adequacy of the district court's legal
basis for excluding evidence is not being questioned, our review is for
abuse of discretion.
As mentioned in Issue 1, Sappington's defense was not
guilty by reason of mental disease or defect. Throughout trial,
Sappington attempted to prove that he suffered from schizophrenia in
early April 2001, and that his criminal behavior was its result. As part
of this endeavor, Sappington sought to establish a link between the
schizophrenia of his mother, Mary White, and his own behavior. The
district court excluded two pieces of Sappington's evidence on this
issue: medications Mary was taking, which would have established that
she suffered from schizophrenia; and her behavioral symptoms that were
allegedly similar to his own, which would purportedly establish that he
also suffered from schizophrenia at the time of the crimes.
Dr. Logan testified that schizophrenia has a genetic
component; therefore, the mental health of Sappington's family is
relevant.
As for the medication evidence, during Dr. Logan's
direct examination defense counsel attempted to put into evidence three
of Mary's prescriptions. One of the prescriptions was for a psychotropic
drug, which counsel contended would demonstrate that Mary was
schizophrenic. The State objected to their admission, claiming that Dr.
Logan did not know for whom or what they had been prescribed. The court
sustained the objection, agreeing with the State's foundation objection
and noting that Sappington had already established that Mary was
schizophrenic.
While this testimony may have a tendency to prove a
material fact–that Mary suffered from schizophrenia–it still may be
properly excluded. We agree the court did not abuse its discretion in
refusing to allow Dr. Logan to comment regarding medications he did not
prescribe and which were prescribed to a patient he had not evaluated.
Additionally, we agree that the testimony was cumulative as Sappington
had already established that Mary was schizophrenic through the
testimony of her brother, Rufus White. See State v. Torres, 280
Kan. 309, 333, 121 P.3d 429 (2005) ("[W]hether otherwise relevant
evidence is cumulative is a matter of discretion for the trial court.").
As for the evidence of Mary's behavior attempted to
be introduced through White, we observe that Sappington did not
establish that her behavior was the exclusive result of schizophrenia.
Both White and Dr. Logan testified that Mary also suffered from a
bipolar disorder. Because Dr. Logan testified about considerable overlap
in the symptoms for bipolar disorder and schizophrenia, Mary's symptoms
could have been the result of either disease. Similarly, we observe that
Sappington used PCP, and Dr. Logan repeatedly testified that the
symptoms of PCP use and schizophrenia are identical. Accordingly, he
could not tell whether Sappington's behavior was the result of PCP use
or schizophrenia. Finally, we observe that even if both Mary and
Sappington clearly suffered only from schizophrenia, Sappington failed
to present any testimony that family members with schizophrenia usually
exhibit the same symptoms, i.e., Sappington's behavior would
expectedly parallel Mary's. Consequently, the trial court did not abuse
its discretion in limiting testimony of Mary's symptoms.
Issue 4: The district court did not err in
refusing to declare a mistrial after the State began to play the
videotape of the wrong confession in open court.
Finally, Sappington claims that the trial court erred
in refusing to declare a mistrial after the State began to play the
videotape of the wrong confession in open court. The State responds that
the mistake did not make it impossible to proceed without injustice to
Sappington.
K.S.A. 22-3423(1) states:
"The trial court may terminate the trial and
order a mistrial at any time that he finds termination is necessary
because . . . (c) [p]rejudicial conduct, in or outside the courtroom,
makes it impossible to proceed with the trial without injustice to
either the defendant or the prosecution." (Emphasis added.)
As a general rule, a motion for a mistrial is
reviewed under an abuse of discretion standard, and the party alleging
the abuse bears the burden of proving that "his or her substantial
rights to a fair trial were prejudiced." State v. White, 284
Kan. at 343. This court also examined a court's duty to declare a
mistrial in White:
"It is necessary when justice so requires to declare
a mistrial where there is some fundamental failure of the proceeding.
When an event of prejudicial misconduct, the damaging effect which
cannot be removed by admonition and instruction, is presented to the
jury, the trial judge must declare a mistrial." 284 Kan. at 343.
In March 2001, approximately 1 month before the
events in this case occurred, Sappington was also involved in a shooting
in which David Mashak was killed. Sappington's resultant trial on first-degree
felony murder and attempted aggravated robbery charges occurred in late
September 2004, approximately 2 months after the trial in the instant
case. See State v. Sappington, (No. 94,416, this day decided).
At the beginning of Sappington's trial for the triple murder, he
requested an order in limine to prohibit any mention of the allegations
in the Mashak case during this trial. The State made no objection, and
the trial judge granted the order.
During the State's case-in-chief, Detective Greg
Lawson testified about the details of Sappington's confession. The State
asked Detective Lawson to play the videotaped confession for the jury.
As the tape began to play, the prosecutor asked the detective to shut
the tape off and approached the bench for a conference out of hearing of
the jury.
During that conference, the prosecutor told the court
that it looked like the wrong videotaped confession was starting to
play. He explained that he picked up the wrong tape from counsel table
and believed the tape that had been playing was from the Mashak homicide.
The record reveals that the tape played for a short period of time. The
jury only heard a detective begin to Mirandize Sappington–no
questions were asked and no information about the instant case was
revealed.
Sappington then moved for a mistrial. Defense counsel
Kalb explained that the Mashak tape showed Sappington wearing an orange
jail suit, while in the correct confession tape, he was wearing street
clothes. She argued that the jury would "know something was up" and it
would be "obvious it's a different time about a different matter." The
judge offered to give a curative instruction, but she declined, saying "any
explanation would make it worse."
We hold that Sappington has not met his burden of
showing his substantial rights to a fair trial were prejudiced.
Similarly, although the playing of the wrong tape violated the court's
order in limine, Sappington has not shown that the facts elicited in
violation of the order substantially prejudiced him. See State v.
Gleason, 277 Kan. 624, 640, 88 P.3d 218 (2004). He assumes that the
jury would infer from the jail suit that he was being questioned about a
separate incident. This is not the only logical conclusion, however. The
jury could reasonably have concluded that Sappington was questioned by
police multiple times in this case, as he was charged with five separate
crimes against four different victims. Additionally, the jury was never
told that the tape was from another case, nor did it hear any facts
suggesting that the tape was from a separate incident. Sappington
refused a curative instruction, and no additional attention was drawn to
the mistake.
We conclude the district court did not abuse its
discretion in refusing to declare a mistrial.
Affirmed.
DAVIS, J., not participating.
GREENE, J., assigned.1
1REPORTER'S NOTE: Judge
Richard D. Greene, of the Kansas Court of Appeals, was appointed to hear
case No. 94,415 vice Justice Davis pursuant to the authority vested in
the Supreme Court by K.S.A. 20-3002(c).
IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,416
STATE of KANSAS, Appellee,
v. MARC VINCENT SAPPINGTON, Appellant.
SYLLABUS BY THE COURT
1. Allegations of prosecutorial misconduct require a
two-step analysis. First, the appellate court must determine whether the
comments were outside the wide latitude allowed in discussing the
evidence. Second, the court must decide whether those comments
constitute plain error; that is, whether the statements prejudiced the
jury against the defendant and denied the defendant a fair trial,
thereby requiring reversal. The analysis can apply to prosecutorial
action in contexts beyond mere comment on the evidence.
2. In the second step of the two-step analysis of
allegations of prosecutorial misconduct, the appellate court considers
three factors to determine whether a new trial should be granted: (1)
whether the misconduct is gross and flagrant; (2) whether the misconduct
shows ill will on the prosecutor's part; and (3) whether the evidence
against the defendant is of such a direct and overwhelming nature that
the misconduct would likely have little weight in the minds of the
jurors. None of these three factors is individually controlling. Before
the third factor can ever override the first two factors, an appellate
court must be able to say that the harmlessness tests of both K.S.A.
60-261 (inconsistent with substantial justice) and Chapman v.
California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclusion
beyond reasonable doubt that the error had little, if any, likelihood of
having changed the results of the trial), have been met.
3. Under the facts of this case, the prosecutor did
not commit reversible misconduct during closing argument.
4. When a district court refuses to recuse itself
from a trial upon the defendant's request, appellate courts apply a two-part
test to determine whether the defendant received a fair trial or whether
the defendant's due process rights were violated: (1) Did the trial
judge have a duty to recuse himself or herself from this case because
the judge was biased, prejudicial, or partial? (2) If the judge did have
a duty to recuse and failed to do so, is there a showing of actual bias
or prejudice to warrant setting aside the judgment of the trial court?
5. Under the facts of this case, the district court
did not err in denying defendant's motion for change of judge.
6. The standard of review for the admission of
certain autopsy photographs requires an appellate court to first
determine whether they are relevant.
7. Appellate courts use an abuse of discretion
standard to review claims that certain autopsy photographs are overly
repetitious, gruesome, and introduced only to inflame the jury.
8. Under the facts of this case, the district court
did not err in admitting certain autopsy photographs into evidence.
9. A district court's refusal to appoint new trial
counsel is reviewed under an abuse of discretion standard, which asks
whether any reasonable person would take the view adopted by the
district court. The burden is on the party alleging the abuse.
10. To warrant the appointment of new trial counsel,
a defendant must show "justifiable dissatisfaction" with appointed
counsel. Justifiable dissatisfaction may be demonstrated by showing a
conflict of interest, an irreconcilable conflict, or a complete
breakdown in communications between counsel and the defendant. But
ultimately, as long as the trial court has a reasonable basis for
believing the attorney-client relation has not deteriorated to a point
where appointed counsel can no longer give effective aid in the fair
presentation of a defense, the court is justified in refusing to appoint
new counsel.
11. Under the facts of this case, the district court
did not err in denying defendant's requests for new counsel.
Appeal from Wyandotte district court, J. DEXTER
BURDETTE, judge. Affirmed. Opinion filed November 2, 2007.
Sarah Ellen Johnson, of Kansas Appellate
Defender Office, argued the cause and was on the brief for appellant.
Jerome A. Gorman, district attorney, argued
the cause, and Paul J. Morrison, attorney general, was with him
on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: Marc Vincent Sappington directly appeals
his convictions of first-degree felony murder and attempted aggravated
robbery. Our jurisdiction is under K.S.A. 22-3601(b)(1), conviction of
an off-grid crime.
Approximately 2 months before these convictions,
Sappington was also convicted of crimes arising out of a different
episode: three counts of first-degree murder, one count of kidnapping,
and one count of aggravated burglary against four different victims. His
appeal from those convictions is the subject of State v. Sappington,
(No. 94,415, this day decided).
The issues on appeal, and this court's accompanying
holdings, are as follows:
1. Did the prosecutor commit reversible misconduct
during closing argument? No.
2. Did the district court err in denying Sappington's
motion for change of judge? No.
3. Did the district court err in admitting certain
autopsy photographs into evidence? No.
4. Did the district court err in denying Sappington's
requests for new counsel? No.
Accordingly, we affirm the district court and
convictions.
FACTS
David Mashak owned and operated Phase One Auto Sales,
a detail and auto sales shop located in Kansas City, Kansas. On March 5,
2001, Mashak sold a 1984 Chevy Impala to A.G. for $750. Mashak's wife,
Valerie Mashak, testified that in early March she accompanied Mashak to
the shop when Mashak showed A.G. the car. Valerie testified that when
Mashak sold the car to A.G., Mashak told A.G. to park the car because
the "tags weren't right." Two days after the sale Police Officer Jason
Allen stopped the Impala being driven by A.G. because the 30-day tag was
altered. Due to the altered tag, Allen had the car towed to the impound
lot. According to Valerie, on approximately March 10 A.G. called Mashak
at home, complaining about his car being towed and asking Mashak to get
it out of the impound lot.
On March 16, 2001, Mashak and Johnny Sublett,
Mashak's employee and best friend, were eating lunch in the business'
office around 2 p.m. when an African-American male entered the business.
Mashak and Sublett were the only individuals in the shop at the time.
Sublett did not know this individual; he was later identified as A.G.
According to Sublett, A.G. was angry and spoke to Mashak about getting
the vehicle that Mashak had sold to A.G. out of the impound lot. Mashak
did not pay attention to A.G.; he continued eating his lunch. A.G. then
walked out of the shop.
As soon as A.G. walked out, a different man wearing a
black mask and a black Carhart or Dickie coat with a hood entered the
shop. Sublett did not recognize this individual either. The man, later
identified as Sappington, was carrying what Sublett described as a black
AK assault rifle. As soon as Sappington entered, he started shooting.
When Sublett saw the gun, he ran into the garage portion of the business
and dived under a vehicle. From there, he could hear Mashak getting shot
in the office and fleeing to the garage. After approximately 10 minutes,
Sublett crawled out and called an ambulance. Mashak was lying on the
garage floor, conscious, but dying.
Richard Turner, a customer at Loud and Clear Car
Audio across the street, heard the gunshots and then saw one African-American
male running out of Mashak's shop and another African-American male
shooting into it. Turner and Donald Martin, the owner of Loud and Clear
Car Audio, then saw two men speed away in a brown vehicle. According to
Martin, a "hooded person" was driving the vehicle.
Police found Mashak and eight shell casings inside
the shop. Officer Kim J. Crockett testified that AK-47 assault rifles
and SKS assault rifles fire the caliber of ammunition found in the
building. Seven of the shell casings were found in the office and one on
the garage floor. The officers also found several bullet holes in the
interior walls of the shop and in some of the vehicles parked in the
garage.
Dr. Donald Pojman, the forensic pathologist who
performed the autopsy, testified that Mashak suffered five gunshot
wounds–two to the left shoulder, one to the right elbow, and two to the
right side of the chest. Dr. Pojman opined that Mashak died from
multiple gunshot wounds, most importantly the gunshot wound to the chest,
with loss of blood the ultimate cause of death.
The next month an anonymous tip led officers to
investigate Sappington as a participant in the shooting. He eventually
confessed to his participation in the crime. Sappington stated that A.G.
approached him about helping recover money from Phase One Auto Sales
because the guys there had sold A.G. a car that had been towed because
the "tags weren't right." He characterized himself and A.G. as "associates"
prior to this incident. According to Sappington, A.G. said he would go
into the shop first and talk to the owner and then Sappington was
supposed to enter 6 seconds later as an "enforcer."
Sappington stated that his role was to hold a gun on
the individuals to make sure they cooperated; there was no plan to shoot
them. With a black scarf covering his face, he entered the shop and
pointed the SKS rifle at the two men sitting behind the counter. Because
they "quickly moved" and Sappington thought they were reaching for a gun,
he shot them. He then ran out of the shop, and he and A.G. fled in a
brown vehicle.
A pager registered to A.G.'s father was found at the
scene which had independently led officers to investigate A.G. as a
suspect. From a photo lineup, Sublett identified A.G. as the person who
entered the shop on the day of the shooting, and Valerie Mashak
identified him as the person who bought the car from her husband and who
had called about getting it out of the impound lot. A.G. eventually
confessed to his participation in the crime and implicated Sappington as
the shooter.
The case against Sappington was continued a number of
times over 3 years because of periods in which he alternated between
competency and incompetency. Sappington was evaluated primarily by Dr.
William S. Logan, a psychiatrist, who met with Sappington 13 times over
that entire period. Sappington was ultimately deemed competent to stand
trial in July 2004. He was tried and convicted later that month for the
triple murders and other crimes committed in April 2001 (State v.
Sappington, No. 94,415, this day decided). He was tried in
September 2004 for the crimes in the instant case committed in March
2001.
At trial, both Sappington and A.G. recanted their
confessions. Sappington testified that he had nothing to do with the
shooting, that he was never at the shop and that he did not know A.G. or
Mashak. He claimed that he agreed to confess to the murder because
Detective Greg Lawson, who took his confession, promised that he would
help Sappington avoid the death penalty in a different homicide case if
he confessed to shooting Mashak. Sappington testified that he based his
confession strictly upon information that Lawson gave him.
Although A.G.'s preliminary hearing testimony was
consistent with his prior taped confession, when called by the State to
testify at trial he stated, "I can't do this. I can't lie like this, man.
This ain't right." He then testified that he did not know Sappington in
March 2001 and did not know who did the shooting. As a defense witness,
A.G. admitted that he had previously implicated Sappington as the
shooter. However, he testified that he had gone to the shop only to talk
to Mashak about getting his car out of the tow lot. While A.G. was
talking to Mashak, a masked man entered the body shop and just started
shooting. A.G. testified that he then ran out "scared for his life."
After the shooting, his father picked him up; A.G. testified that his
father would testify that the father did not pick up anyone other than
A.G. at that time.
A.G. testified that he implicated Sappington only
because Detective Lawson said that would mean that A.G. would remain in
juvenile court for his own charges. He further testified that when
Lawson walked him from the juvenile center to the police station, Lawson
told him details on what to confess.
The jury convicted Sappington of one count of first-degree
felony murder and one count of attempted aggravated robbery. The court
sentenced him to life imprisonment without parole eligibility for 20
years plus a consecutive term of 130 months' imprisonment, with the
sentences to run consecutive to the sentences imposed in the triple
murder case: consecutive sentences of three life terms for the first-degree
murders, 79 months for kidnapping, and 32 months for aggravated burglary.
More facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: The prosecutor did not commit reversible
misconduct during closing argument.
Sappington first contends that reversal and remand
for new trial is required because the prosecutor improperly diluted the
"beyond a reasonable doubt" burden of proof during closing argument. The
State basically responds that no misconduct occurred.
Our standard of review was recently reiterated in
State v. White, 284 Kan. 333, 337-38, 161 P.3d 208 (2007):
"Allegations of prosecutorial misconduct require a
two-step analysis. First, the appellate court must determine whether the
comments were outside the wide latitude allowed in discussing the
evidence. Second, the appellate court must decide whether those comments
constitute plain error; that is, whether the statements prejudiced the
jury against the defendant and denied the defendant a fair trial,
thereby requiring reversal. State v. Elnicki, 279 Kan. 47, 58,
105 P.3d 1222 (2005) (quoting State v. Tosh, 278 Kan. 83, 85,
91 P.3d 1204 [2004]). We have applied the test to prosecutorial action
in contexts beyond mere comment on the evidence. See State v.
Swinney, 280 Kan. 768, 779, 127 P.32 261 (2006) (citing cases)."
In the second step of the two-step analysis, the
appellate court considers three factors to determine whether a new trial
should be granted:
"'(1) whether the misconduct is gross and flagrant;
(2) whether the misconduct shows ill will on the prosecutor's part; and
(3) whether the evidence against the defendant is of such a direct and
overwhelming nature that the misconduct would likely have little weight
in the minds of the jurors. None of these three factors is individually
controlling. Before the third factor can ever override the first two
factors, an appellate court must be able to say that the harmlessness
tests of both K.S.A. 60-261 (inconsistent with substantial justice) and
Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct.
824 (1967) [conclusion beyond reasonable doubt that the error had little,
if any, likelihood of having changed the results of the trial], have
been met.'" State v. White, 284 Kan. at 338.
Sappington specifically challenges the following
comments made by the prosecutor during his rebuttal closing argument:
"You know, one of the things we talked about in voir
dire, if you will remember, we talked about this beyond a reasonable
doubt concept and there's not a single one of you here can say–can go
into that jury room and say, I know beyond all doubt that Marc
Sappington is the one who did this. There's not a single one of the 12
of you that can go back there and say, I know beyond any doubt that Marc
Sappington is the one that did this. It's not what the law is asking you
to do, though. Remember our test is beyond a reasonable doubt. And
is it reasonable given that evidence that we have that Marc Sappington
is the one that did this? And I suggest to you the answer is, yes, it is.
"And, with that, I ask you to go back and consider
all those things I asked you to do a little bit earlier and return those
verdicts of guilty for both premeditated first degree murder and
attempted aggravated robbery. Thank you." (Emphasis added.)
Sappington argues that the italicized statement
suggested to the jury that it could convict him if they merely found it
was "reasonable" to conclude he was the culprit, an incorrect statement
of law that lessened the State's "reasonable doubt" burden of proof. As
he correctly notes, a jury may convict a defendant only if it has "no
reasonable doubt as to the truth of each of the claims required to be
proved by the State." PIK Crim. 3d 52.02.
The parties have cited a number of cases for our
guidance, several of which support both sides. In chronological sequence
they are as follows:
In State v. Banks, 260 Kan. 918, 926, 927
P.2d 456 (1996), the defendant moved for a mistrial because the
prosecutor argued in closing:
"'My burden is the burden that you must consider this
case beyond a reasonable doubt. It is not beyond any doubt, it is not
beyond the shadow of a doubt, it is beyond a reasonable doubt.
"'Reasonable doubt means if you are going to say
these men are not guilty of something, you have to give a reason for it.'"
(Emphasis added.)
The court found the italicized language improper.
However, it held that the trial court did not abuse its discretion in
refusing to declare a mistrial due to this one statement. 260 Kan. at
926-28. The court concluded that when the prosecutor's argument was
considered in its entirety, particularly the preceding nonitalicized
language correctly stating the burden, the statements ultimately
recognized that the burden of proof falls on and remains with the State.
260 Kan. at 927.
As an apparent factor in its calculus, the Banks
court also observed that the district court had correctly
instructed the jury: in effect, PIK Crim. 3d 52.02.
"'The State has the burden to prove the defendant is
guilty. The defendant is not required to prove he is not guilty. You
must presume that he is not guilty until you are convinced from the
evidence that he is guilty.
"'The test you must use in determining whether the
defendant is guilty or not guilty is this: If you have a reasonable
doubt as to the truth of any of the claims made by the state, you must
find the defendant not guilty. If you have no reasonable doubt as to the
truth of any of the claims made by the State, you should find the
defendant guilty.'" (Emphasis added). 260 Kan. at 927.
In affirming the conviction despite the prosecutor's
improper statement, this court emphasized the "other substantial and
compelling evidence going directly to [defendant's] guilt." 260 Kan. at
928.
In State v. Mitchell, 269 Kan. 349, 7 P.3d
1135 (2000), the court held that the following remark during the
prosecutor's closing argument was an erroneous and misleading statement
of law: "'the State's burden of proof in this type of criminal case and
in any criminal case is a common sense burden.'" 269 Kan. at 360-61. It
reasoned that the comment impermissibly suggested to the jury that it
could convict the defendant "by using a burden of proof less than 'reasonable
doubt.'" 269 Kan. at 361.
As in Banks, however, in Mitchell
the court ultimately ruled that the improper remarks did not deny the
defendant a fair trial essentially because of the weight of the evidence
against him. Echoing part of the federal standard from Chapman v.
California, this court held that the remarks had little, if any,
likelihood of changing the result of the trial. 269 Kan. at 361.
The next year in State v. Diggs, 272 Kan.
349, 34 P.3d 63 (2001), the defendant likewise argued that the
prosecutor misstated the State's burden of proof and erroneously shifted
the burden to the defense. The opinion does not quote the prosecutor's
closing argument, but states:
"Diggs contends that the prosecutor erred by equating
the 'reasonable doubt' standard with 'common sense' or 'reasonable
explanation.' She argues that the burden was shifted to Diggs when the
prosecutor repeatedly asked the jury to consider whether Diggs' actions
were 'reasonable.
"Here, unlike State v. Mitchell, 269 Kan.
349, 357-61, 7 P.3d 1135 (2000), the prosecutor did not define
reasonable doubt as 'common sense,' nor did he define it as a 'reasonable
explanation.' He told the jurors that they could apply common sense to
the facts in their deliberations, including the determination of whether
rigor mortis had already started setting in when the EMT's arrived at
the scene of the murder. It appears that the prosecutor questioned
whether certain facts were 'reasonable' in order to argue to the jury
that the facts did not create a reasonable doubt." 272 Kan. at 363.
The Diggs court concluded that the
prosecutor's comments were within the bounds afforded counsel for
argument.
The next year in State v. Finley, 273 Kan.
237, 42 P.3d 723 (2002), the defendant argued that the prosecutor
improperly defined the State's burden of proof with the following
statement during closing argument:
"'I would submit to you that a reasonable doubt is
really nothing more than a fair doubt that's based on reason and common
sense and arises from the status of the evidence. It's impossible for me
to prove everything to you by an absolute certainty. At the same time, a
defendant should not be convicted just on speculation and conjecture,
but you have much more than that in this case. You don't just have
speculation or conjecture that [defendant] is guilty.'" 273 Kan. at 248.
The Finley court noted the risk "that the
definition gave the jury the impression that something slightly more
than suspicion or conjecture 1s sufficient to reach reasonable doubt."
273 Kan. At 249. Nevertheless, it also noted that this conclusion would
ignore the first part of the prosecutor's argument. Although seemingly
deciding that the prosecutor's statement was error, and therefore
qualifying as misconduct, the Finley court ultimately concluded
that "[i]t cannot be said the prosecutor's argument regarding the burden
of proof denied [defendant] a fair trial," because the court had earlier
determined that the evidence of guilt was overwhelming. 273 Kan. at 249.
More recently, in State v. Wilson, 281 Kan.
277, 286, 130 P.3d 48 (2006), the court observed that the prosecutor's
closing argument was far less egregious than the prosecutor's statement
in Finley: "'I want you to look at the evidence, remember all
the testimony that you heard, and go back to that definition of
reasonable doubt that, unfortunately, no one can say in precise words
what it is. You just have to intuitively know when you see it.'" This
court held that the prosecutor properly stated the law regarding
reasonable doubt. 281 Kan. at 287.
In the instant case, the prosecutor did not expressly
define the term "reasonable doubt" in improper language as did the
Banks and Mitchell prosecutors. However, his inaccuracy is
more serious than the prosecutors' statements made in Finley
and Wilson, and probably Diggs, on the issue of burden
of proof. To convict a defendant of a crime, the jury must find that it
has no reasonable doubt as to the truth of each claim the State must
prove. PIK Crim. 3d 52.02. Yet, as Sappington argues, his prosecutor's
statement suggests that a jury may convict if the jury believes that it
is merely "reasonable" that he committed the crime. We conclude that
this misstatement dilutes the State's burden because a jury could
convict due to its reasonable belief that a defendant committed a crime
while still having a reasonable doubt as to guilt. Accordingly, the
comment is outside the wide latitude afforded a prosecutor.
The prosecutor's misstatement of the law, however,
does not necessarily amount to reversible error. Reversal is not
required unless the prosecutor's actions deprived Sappington of a fair
trial. State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004). The
first factor to consider in the harmlessness inquiry is whether the
misconduct is gross and flagrant, i.e., did it prejudice the
jury against Sappington? See State v. Elnicki, 279 Kan. 47, 65,
105 P.3d 1222 (2005). We hold it did not.
As did the prosecutor in Banks, the
prosecutor here did properly state the burden of proof in the sentence
immediately preceding his misstatement, saying: "Remember, our test is
beyond a reasonable doubt." Also, as in Banks, the overall
closing argument made several clarifications on the burden of proof:
that reasonable doubt is not "beyond all doubt" or "beyond any doubt."
See also Finley, 273 Kan. 237 (court must read the prosecutor's
erroneous statement together with his or her correct statements on the
burden of proof).
Likewise, as in Banks, here the district
court properly instructed the jury on the burden of proof, providing PIK
Crim. 3d 52.02 on the burden of proof and reasonable doubt. Additionally,
the court provided the jury with Instruction No. 8, which explained the
alternate theories of murder in the first degree and reiterated that the
burden of proof is beyond a reasonable doubt. A jury is presumed to have
followed the instructions. State v. Horn, 278 Kan. 24, 43, 91
P.3d 517 (2004). In short, the prosecutor's conduct was not gross and
flagrant.
Next, no real prosecutorial ill will has been shown.
There is no indication that the prosecutor deliberately misstated the
burden of proof with this isolated statement: "And is it reasonable
given that evidence that we have that Marc Sappington is the one that
did this? And I suggest to you the answer is yes, it is." Citing
Diggs, the State argues that when placed in the context of his
entire rebuttal argument, the statement was intended only to mean that
it was reasonable, based upon the evidence presented at trial, to
believe Sappington's confession instead of his trial testimony. In other
words, the State claims that the prosecutor merely questioned whether
certain facts were reasonable in order to argue that the facts did not
create reasonable doubt.
The prosecutor's language is more direct and more
troubling than that suggested in Diggs, making ill will a
closer question. But the fact that it is merely close, and not clear,
and when coupled with the language's one-time appearance during a
lengthy closing argument, weighs against our finding ill will.
Lastly, the evidence against Sappington was of such a
direct and overwhelming nature that the misstatement likely had little
weight in the minds of the jurors. In response to Sappington's and A.G.'s
trial recantation of their confessions, Detective Lawson testified that
he did not tell them what to say prior to taking their statements.
Although he had a good idea of the physical evidence prior to taking
Sappington's confession, he did not know the "play by play" as detailed
in their confessions. Moreover, he testified that he was very careful
not to tell A.G. anything about Sappington's confession because he
wanted to judge both suspects' credibility based upon how their
statements coincided.
Lawson further denied ever promising Sappington that
he would not receive a death sentence if he confessed to Mashak's
killing. He also testified that after he walked A.G. the short distance
from the detention center to his adjoining office building, A.G.'s
attorney was present for a large portion of the interview that occurred
prior to the taped confession.
Both Sappington's and A.G.'s taped confessions were
played for the jury. A review of the tapes reveals that the two
confessions closely paralleled each other in their detail and seem
spontaneous and unrehearsed. Both men were forthcoming with little need
for exploratory questions by Lawson. During their taped confessions,
both Sappington and A.G. stated that they were not coerced or promised
anything in exchange for their statements. When questioned by Lawson at
the end of his confession, Sappington specifically stated that the
officers never told him what to say and that he volunteered all of the
information.
Additionally, there was considerable circumstantial
evidence supporting both confessions. Both Turner and Martin testified
that after hearing shots at the body shop, they saw two men leaving
together in a brown vehicle. Both Sappington and A.G. volunteered in
their confessions that they fled in a brown vehicle. Eight assault rifle
shell casings were found at the scene; shop occupant Sublett testified
that the shooter not only fired an assault rifle but also wore a black
mask. Sappington confessed to shooting an assault rifle and wearing a
black scarf over his face.
Sublett testified that one man entered first, argued
with Mashak, and as soon as he walked out an armed man entered and began
shooting. He also testified that he could tell that the two men–A.G. and
the shooter–were together and were executing a plan. Sappington
confessed that they had a plan: A.G. was to enter the shop first, and he
was to enter seconds later as the enforcer to hold a gun on the
occupants. Additionally, an anonymous source called the police and
identified Sappington as A.G.'s accomplice. Both Sappington and A.G.
volunteered in their confessions that Sappington was the shooter.
Supportive of a plan, or at least of A.G.'s
involvement, was an officer's testimony that the pager found at the
scene contained messages from A.G.'s family on the day of the shooting,
stating, "don't ruin your future," "please turn around before it's too
late," "don't choose lockup over Grandma, Marie, yourself, your future,"
and "go to [church] before it's too late." Similarly, A.G. was
identified by the victim's wife as the man with whom her husband had had
recent difficulty about a blue car and identified by shop occupant
Sublett as the man who had entered to angrily argue about the car
shortly before the shooting.
Furthermore, A.G.'s father directly contradicted A.G.'s
trial testimony that his father only picked up A.G. after the incident.
In the process the father corroborated many of the details of the
recanted confessions–October 30, 2007which Sappington and A.G. claimed
were based upon information fed to him by Detective Lawson.
The father testified that on March 16, 2001, A.G.
called him sometime in the afternoon to come pick him up at an apartment
building. The father further testified that he picked up both A.G. and
A.G.'s friend, whom he did not know. When he got to the building, he
opened his trunk from the inside of his car, and A.G. and the friend put
their shoes in the trunk. The friend then sat in the back seat and A.G.
sat in the front. The father dropped the friend off somewhere on a side
street "off of 7th Street." He and A.G. then picked up A.G.'s mother
from work, ran some errands, and took A.G. to the bus station for a
planned trip to visit his sister in Texas.
Similarly, in their recanted confessions, both
Sappington and A.G. independently stated that following the shooting
they disposed of their vehicle and then went to an acquaintance's
apartment where A.G.'s father picked them up. According to both these
confessions, A.G.'s father popped the car's trunk from inside the
vehicle, and then they put their shoes and the firearm in the trunk. A.G.
confessed that Sappington sat in the back. According to both their
confessions, A.G.'s father dropped Sappington off at 8th and Parallel
streets. In A.G.'s confession, he stated that after dropping Sappington
off, A.G. and his dad picked his mom up from work, went to Walmart, and
then to the bus station where he left to visit his sister in Texas.
Given the jury's conviction, it obviously rejected
the recantations. A.G.'s and Sappington's taped confessions were well
corroborated by other testimony and evidence, and the confessions were
made more telling by Sappington's and A.G.'s unusual trial stories.
In conclusion, although prosecutorial misstatement
occurred in this case, reversal is not required because the prosecutor
did not prejudice the jury against Sappington and deny him a fair trial.
We hold that the harmlessness standards are satisfied from both K.S.A.
60-261 (not inconsistent with substantial justice) and Chapman v.
California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclude
beyond a reasonable doubt that the error had little, if any, likelihood
of having changed the results of the trial).
Issue 2: The district court did not err in
denying Sappington's motion for change of judge.
Sappington next contends the trial judge erred by
refusing to recuse himself from the instant case after making biased
remarks at the sentencing hearing for the triple murder case. The State
responds that the remarks were nothing more than fair characterizations
of the facts of a grisly case.
Our standard of review is well known:
"'When a district court refuses to recuse itself from
a trial upon the defendant's request, this court has promulgated a two-part
test to determine whether the defendant received a fair trial or whether
the defendant's due process rights were violated: (1) Did the trial
judge have a duty to recuse himself or herself from this case because
the judge was biased, prejudicial, or partial? (2) If the judge did have
a duty to recuse and failed to do so, is there a showing of actual bias
or prejudice to warrant setting aside the judgment of the trial court?'"
State v. Walker, 283 Kan. 587, 605, 153 P.3d 1257 (2007) (quoting
State v. Alderson, 260 Kan. 445, Syl. ¶ 2, 922 P.2d 435
[1996]).
K.S.A. 2006 Supp. 20-311d provides the procedure for
a party's request for a change of judge. First, the party must file a
motion for change of judge without stating in the motion the grounds for
belief that the judge cannot afford the party a fair trial. The assigned
judge shall then hold an informal hearing on the motion. Next, if the
judge refuses to recuse, the party seeking a change of judge may then
file an affidavit alleging the grounds for change of judge. K.S.A. 2006
Supp. 20-311d(a). If an affidavit is filed, the chief judge of the
district shall at once determine the legal sufficiency of the affidavit.
If the affidavit is found to be legally sufficient, the case shall be
assigned to another judge. K.S.A. 2006 Supp. 20-311d(b).
K.S.A. 2006 Supp. 20-311d(c)(5) articulates the
affidavit grounds upon which Sappington relies: "that on account of the
personal bias, prejudice or interest of the judge such party cannot
obtain a fair and impartial trial or fair and impartial enforcement of
post-judgment remedies."
On the first day of the jury trial, Sappington fax
filed a motion asking Judge Burdette to recuse himself. Judge Burdette
had also presided over the July 2004 triple murder trial and subsequent
sentencing. Although neither the faxed motion or the sentencing
transcript is contained in the record on appeal, Sappington appears to
argue in the Mashak trial transcript that the judge had described
Sappington as a "homicidal time bomb" when imposing the sentences
approximately 3 weeks earlier on September 2. According to defense
counsel's statement in the Mashak trial transcript, at sentencing Judge
Burdette had also stated that "if [Sappington] was going to ever get out
again, I had no doubt he would do this again." Due to these statements,
Sappington's motion alleged that the judge was prejudiced against
Sappington and that this prejudice would "contaminate the jury."
Judge Burdette held an informal hearing on the matter
outside the presence of the jury and denied Sappington's motion The
judge stated that his statements solely addressed the sentencing of
Sappington in the prior case and had "absolutely nothing to do with his
guilt or innocence in this case." He further stated that he had no
trouble being fair and impartial in this case. He also noted that
pursuant to statute, the defense could file a more detailed motion with
the chief judge of the district court if it chose to further pursue the
matter.
Sappington did not file a motion with the chief judge,
and did not reestablish his request for a change of judge until his
motion for new trial. In denying Sappington's motion on that ground,
Judge Burdette stated that Sappington failed to raise any issues
necessitating the court's recusal of itself and noted that he failed to
take further proceedings beyond the informal hearing.
Sappington argues to this court that the judge's
reference to Sappington as a "homicidal time bomb"–or as stated in his
brief as a "ticking time bomb"–evidenced the judge's hostile feeling
against him and suggested that the judge "had already reached an
unalterable conclusion about Mr. Sappington's character." He argues that
based upon these statements, a reasonable person would have doubt about
Judge Burdette's impartiality toward Sappington.
The State counters that Judge Burdette's statement in
the triple murder case was made concerning the facts of that case and
was given as a reason for the court's imposition of maximum, consecutive
sentences. It characterizes the comment as "nothing more than a fair
characterization of the facts of a grisly triple murder case where one
person was dismembered, another left dead in a car in a public parking
lot and the third left dead with a broken knife blade embedded in his
back." Consequently, the State argues that the comment does not
establish that the court was biased, prejudicial, or partial.
The first step in our analysis is to determine
whether the judge had a duty to recuse from this single murder case
based on his statement made during sentencing in the triple murder case.
We initially observe that Sappington has failed to sufficiently
designate a record to support his claim, e.g., a copy of his
fax-filed motion to recuse, much less the sentencing hearing transcript.
We have only the transcript of the limited discussion regarding the
motion on the first day of trial. As such, this court is prevented from
considering the context in which the judge made the challenged statement.
A defendant possesses the burden to designate a record that
affirmatively shows prejudicial error. Without such a record, an
appellate court presumes the action of the trial court was proper.
State v. Holmes, 278 Kan. 603, 612, 102 P.3d 406 (2004).
Moreover, Judge Burdette did not have a duty to
recuse himself from this case based on his characterization of
Sappington in the prior case. We acknowledge that a judge should
disqualify himself or herself if the circumstances of the case "create
reasonable doubt concerning the judge's impartiality, not in
the mind of the judge himself, or even, necessarily, in the mind of the
litigant filing the motion, but rather in the mind of a reasonable
person with knowledge of all the circumstances." State v. Logan,
236 Kan. 79, 86, 689 P.2d 778 (1984). We further acknowledge that the
Kansas Code of Judicial Conduct states that a judge has a duty to recuse
himself or herself from a case when "the judge's impartiality might
reasonably be questioned." This includes instances where "the judge has
a personal bias or prejudice concerning a party." Rule 601A, Cannon
3E(1)(a) (2006 Kan. Ct. R. Annot. 576-77).
Given that this isolated statement occurred in a
completely separate case and that this court is prevented from placing
it in the context in which it was made, we cannot say that a reasonable
person would have reasonable doubt regarding Judge Burdette's
impartiality. The statement is analogous to the judge's reference to the
defendant as a "mean mother" in State v. Griffen, 241 Kan. 68,
71, 734 P.2d 1089 (1987). That particular reference was made prior to
sentencing during the judge's attempt to summarize the findings of the
presentence investigation report to substitute defense counsel. 241 Kan.
at 71. This court concluded that the judge's remarks, while "ill-advised,"
did not demonstrate partiality, prejudice, or bias on his part. 241 Kan.
at 71-73. Similarly, Judge Burdette's reference to Sappington as a "homicidal
time bomb" in the triple murder case does not demonstrate that he was
biased or prejudiced against Sappington in the instant case.
Second, even if we were to assume that Judge Burdette
had a duty to recuse himself from this case, Sappington still needs to
demonstrate actual bias or prejudice by the judge. This court has often
rejected claims of error in denials of motions for change of judge due
to a lack of demonstrated prejudice. See, e.g., Walker,
283 Kan. at 609; State v. Reed, 282 Kan. 272, 279, 144 P.3d 677
(2006); Griffen, 241 Kan. at 73. Sappington has not pointed to
anything in the record, nor can we find anything there, showing that
Judge Burdette exhibited bias or prejudice at trial or sentencing in the
instant case. Therefore, the court did not err in denying Sappington's
motion for change of judge.
Issue 3: The district court did not err in
admitting certain autopsy photographs into evidence.
Sappington next contends the district court erred in
admitting certain autopsy photographs into evidence because they were "overly
repetitious, gruesome and only went to inflame the jury." At trial, he
objected to only four of these photographs: Exhibits # 21, # 24, # 26
and # 27. The State counters that the photographs were not cumulative or
overly gruesome and were used by Dr. Pojman to illustrate his testimony
regarding the manner of death.
The standard of review for the admission of these
photographs requires us to first determine whether they are relevant,
i.e., probative. State v. Gunby, 282 Kan. 39, 47, 144
P.3d 647 (2006). See State v. Kirby, 272 Kan. 1170, 1186-88, 39
P.3d 1 (2002); State v. Ruebke, 240 Kan. 493, 517, 731 P.2d 842
(1987) (Photographs and videotape of homicide victims "had a reasonable
tendency to prove or disprove a material fact in issue, or shed light
upon a material fact.").
State's Exhibit # 21 is a "body shot" of the victim
at the time of autopsy. Exhibit # 24 shows two lesions located on the
top of the victim's left shoulder. Exhibit # 26 shows two large wounds
on the left side of the torso and a large sutured incision made by
medical personnel at the hospital. Exhibit # 27 is a closer view of the
two injuries depicted in Exhibit # 26. In overruling Sappington's
objections, the district court held that the State was allowed to show
that the victim died and that Dr. Pojman, who performed the autopsy,
could use these photographs to aid the jury's understanding of how
Mashak died.
Dr. Pojman testified that the photographs would be
useful in his testimony to help him explain to the jury the nature and
location of the injuries. After describing the injuries depicted in each
photograph, Dr. Pojman referred to them to explain how the injuries
caused Mashak's death. Specifically, he used the photographs to explain
the gunshot wounds and why he surmised that the shots went from back to
front. He also used them to explain that the wounds were irregular,
particularly using the photograph of the closer view of the chest wounds
to better explain their irregularity to the jury. He concluded that
Mashak died of multiple gunshot wounds depicted in the photographs, most
important a wound to the chest, which resulted in a loss of blood.
Clearly the photographs were used to prove the manner
of death and to explain medical testimony. They are relevant and
admissible. See State v. Bell, 273 Kan. 49, 52-53, 41 P.3d 783
(2002) (Photographs used to prove the manner of death and the violent
nature of the crime are relevant and admissible.); State v. Deal,
271 Kan. 483, 493, 23 P.3d 840 (2001) (Photographs which are relevant
and material in assisting the jury's understanding of medical testimony
are admissible, including photographs which aid a pathologist in
explaining the cause of death.). Even though at trial Sappington did not
challenge Mashak's cause of death, we have held that 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. See State v. Gholston, 272 Kan. 601, 613, 35 P.3d
868 (2001), cert. denied 536 U.S. 963 (2002).
Sappington argues that the photographs are overly
repetitious, gruesome, and introduced only to inflame the jury,
i.e., prejudicial. Our standard of review of these claims is abuse
of discretion. State v. Parker, 277 Kan. 838, 847, 89 P.3d 622
(2004) (An abuse of discretion has occurred when the admitted
photographs were unduly repetitious and cumulative or their introduction
was solely for the purpose of prejudice.). The facts that two of the
photographs, Exhibits # 26 and # 27, depict the same injuries does not
render such photographs unduly repetitive when, as here, they depict
different aspects of those injuries. State v. Hernandez, 284
Kan. 74, 101, 159 P.3d at 950 (2007) (citing State v. Bradford,
272 Kan. 523, 534-35, 34 P.3d 434 [2001]). We observe that the admission
of photographs in a murder case has rarely been held to be an abuse of
discretion. State v. Torres, 280 Kan. 309, 327, 121 P.3d 429
(2005) (citing State v. Deal, 271 Kan. at 493, 23 P.3d 840.)
We have reviewed the four photographs and find no
abuse of discretion in their admission into evidence.
As to the other photograph about which Sappington
complains, Exhibit # 22, no objection was made at trial to its admission.
As such, the issue of its admission was not preserved on appeal. K.S.A.
60-404; State v. Torres, 280 Kan. at 328.
Issue 4: The district court did not err in
refusing to grant Sappington's request for new counsel.
Finally, Sappington contends the court erred in
denying his multiple requests for new counsel which deprived him of the
opportunity to participate in his own defense. The State basically
responds that his counsel did a commendable job under difficult
circumstances, i.e., those created by Sappington's repeated
mental problems. We independently observe that over a 3-year span, from
his April 2001 arrest through his September 2004 trial, Sappington was
found mentally competent, then incompetent, then competent, then
incompetent, and then competent. Each of Sappington's motions to change
counsel was filed during periods of competency, with the trial for
Mashak's murder being conducted 2 months after his latest competency
determination and trial for triple murder.
A district court's refusal to appoint new counsel is
reviewed under an abuse of discretion standard, which asks whether any
reasonable person would take the view adopted by the district court.
State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). The burden
is on the party alleging the abuse. State v. White, 284 Kan.
233, Syl. ¶ 3, 161 P.3d 208 (2007).
Furthermore, to warrant substitute counsel, a
defendant must show "justifiable dissatisfaction" with appointed counsel.
Justifiable dissatisfaction includes a showing of a conflict of interest,
an irreconcilable conflict, or a complete breakdown in communications
between counsel and the defendant. McGee, 280 Kan. at 894. But
ultimately, "'[a]s long as the trial court has a reasonable basis for
believing the attorney-client relation has not deteriorated to a point
where appointed counsel can no longer give effective aid in the fair
presentation of a defense, the court is justified in refusing to appoint
new counsel. [Citation omitted.]'" State v. Ferguson, 254 Kan.
62, 70, 864 P.2d 693 (1993) (quoting State v. Banks, 216 Kan.
390, 394, 532 P.2d 1058 [1975]).
The facts concerning Sappington's motions for change
of counsel in the instant case are identical to many of those in the
triple murder because certain proceedings were consolidated until
shortly before the triple murder trial began in late July 2004.
After being found competent to stand trial in
December 2001, Sappington filed his first pro se "Motion for Relief of
Court Appointed Counsel" on March 25, 2002. He alleged that
irreconcilable conflicts of interest existed, specifically that he
lacked confidence in attorney Patricia Kalb's representation and that
she was not providing "faithful representation." Sappington later
withdrew the motion with the hope that he and Kalb "could work through
the problems."
In January 2003 Sappington was found incompetent to
stand trial because, among other things, his attorney stated that voices
were telling him not to talk to her, and Dr. Logan determined that he
was unable to "consult with his attorney in preparing his defense." The
January trial was postponed. In April 2003, he was again found competent,
and trial was rescheduled for the following August.
On June 17 Sappington stopped taking his medications
and his counsel filed for a trial continuance. On July 9 he filed
another motion for relief of counsel. It was nearly identical in content
to the March motion except that it also alleged a "complete breakdown in
communication with his counsel."
On July 28, 2003, the court held a hearing on
Sappington's July 9 motion. There, Sappington told the court that Kalb
failed to comply with his "reasonable requests" or failed to do so in a
timely manner. Sappington provided the court with his letters to Kalb
requesting copies of statements of witnesses and the preliminary hearing
transcript. He also stated that Kalb failed to speak with him enough
regarding possible plea agreements and different aspects of his case.
Kalb testified that she had met with Sappington the
previous day to discuss their problems. She did not feel that their
problems were "that serious."Kalb stated that Sappington's mental health
problems had been the cause of many of the delays in this matter. She
admitted that it had taken some time to get the witness statements from
the State and that it had taken a while to get the transcript, but that
the "more important" issue was that she and Sappington were having a "hard
time" communicating regarding his theory of defense. Kalb seemed to
imply that this difficulty was largely due to Sappington's mental status
and stated that she had tried to convey to him her thoughts on a defense.
The court denied Sappington's motion. It informed him
that the defendant always has the final say in his defense, that his had
been one of the more serious and complex cases in the county's recent
history, and that his mental status had caused some delay. It found no
legal sufficiency in Sappington's argument and stated that it would not
change counsel with a trial date set for 1 week from the day of the
hearing. The court concluded that Kalb had zealously guarded
Sappington's constitutional rights and that it could find no fault in
her representation.
Within the week, the August 2003 trial was postponed
because Sappington again stopped taking his medication, and he was again
found incompetent. Trial was eventually rescheduled. That trial was
later postponed because of Sappington's continued incompetence and Dr.
Logan's characterization of his "partial malingering."
In July 2004 Sappington was once again found
competent, and his trial for the triple murder began on the 19th of that
month. The morning of trial, he made an oral motion to dismiss counsel,
claiming that she lied when she said she would come see him and again
claiming that she did not bring him documents. After counsel denied the
allegations, the court denied the motion, finding counsel's
representation "first rate" and adding that it felt no stone had been
left unturned in his defense. Sappington renewed his motion at the close
of evidence, requesting a mistrial because Kalb did not ask all of the
questions that he requested. After counsel responded, the court denied
the motion, and he was convicted of all charges. He renewed his position
in his motion for new trial, which the court denied, stating that no one
could say that counsel had not performed competently.
Sappington's trial for the Mashak charges began on
September 27, 2004. As he had done the first day of trial in the triple
murder case, that morning Sappington made an oral motion to dismiss
counsel. He again did not believe Kalb had been adequate in her
preparation, particularly in corresponding and otherwise dealing with
him to build his case or decide on a defense. For other reasons, he
referred to "the last motion to relieve counsel."
In response to the court's inquiry, Kalb stated that
she was prepared to proceed to trial in this case. The court denied
Sappington's motion, stating that Sappington's general statements did
not rise to the legal threshold for the court to consider removal of
counsel, especially in light of the timing of the motion. The court
further stated that Sappington had failed to present arguments different
from those raised in the triple murder case and in his previous motions.
The court found that based upon all of its observations, Sappington was
receiving the benefit of an experienced criminal defense attorney, and
that it could "see nothing whatsoever that would support his contention
that counsel should be removed."
When Kalb argued Sappington's motion for new trial on
December 10, 2004, she asserted that he was unable to meaningfully
communicate with counsel, reminding the court that he had requested new
counsel before the trial in the instant case as well as in the triple
murder case. The court denied Sappington's motion, observing that "we've
had this issue several times" and "have discussed it at length." It held
that there was "no evidence whatsoever" that Sappington was unable to
communicate with his attorney at trial.
To begin our analysis, we note that in order to
determine whether to appoint new counsel, the district court must
conduct some sort of investigation. Here, the court satisfied this
requirement by fully hearing Sappington's complaints and fully hearing
his counsel's responses, both at the July 2003 motion hearing and the
September 2004 trial. The court further satisfied this requirement by
its own observations of counsel's performance over the course of 3 years.
See State v. Collier, 259 Kan. 346, 359, 913 P.2d 597 (1996).
Sappington had the same attorney, Kalb, throughout both cases. According
to the record on appeal, her performance observed by the court included
multiple actions to protect Sappington's rights regarding his competency
to stand trial and other pretrial matters. She was especially diligent
in monitoring Sappington's mental health, frequently requesting a
continuance or a finding that Sappington was incompetent to stand trial
at that time. Overall, the court concluded that Kalb had performed at a
high level of advocacy on Sappington's behalf.
The district court was well aware of the unique
circumstances of this case. Throughout this lengthy process, an
overarching consideration was seeing if Sappington was capable of being
found competent to stand trial. As a result, the court was quite
cognizant of the substantial challenges any counsel would have faced
representing Sappington. In an analogous context, the court in State
v. Ferguson observed that a lack of communication between a
defendant and counsel does not automatically constitute a violation of
the Sixth Amendment right to counsel. 254 Kan. at 71. There, the court
agreed with the State that "'lack of communication between a defendant
and defense counsel due to a defendant's refusal to cooperate
is not of itself basis for reversal on grounds of ineffective assistance
of counsel.'" (Emphasis added.) 254 Kan. at 73-74. The Ferguson
court held that under the circumstances of that case, substitution of
counsel would have been futile.
The instant case admittedly is distinguishable from
Ferguson because there is no evidence that any communication
problems between Sappington and Kalb were deliberate on his part. In
Sappington's case, however, there were multiple competency and
incompetency determinations, and the district court was forced to
continue trial several times after finding that Sappington was not
competent to stand trial or able to assist in his own defense. Based
upon these determinations and Kalb's statements at the July 2003 hearing
on Sappington's motion, it is doubtful the appointment of substitute
counsel would have solved the communication problems.
Another consideration is the timeliness of
Sappington's motion. This court has held that a request for substitute
counsel made on the first day of trial is not timely. State v.
Collier, 259 Kan. at 358-59. Although, as Sappington points out,
his oral trial motion was not his first request for new counsel, he has
provided no explanation for his delay in making an additional request.
Furthermore, Kalb's July 2003 statements, which Sappington primarily
relies as evidence of a communication problem, were made over a year
before his trial in this case.
Finally, Sappington has failed to point to any facts
that demonstrate a "complete breakdown of communication" between him and
counsel at trial. Despite his assertion to the contrary, Sappington
actively participated in his defense. Unlike at the triple murder trial,
he testified and, through counsel's direct examination, completely
presented his theory of defense: he had absolutely no involvement in the
crime. Accordingly, he recanted his confession on the stand. Moreover,
counsel Kalb called A.G. to testify and elicited his testimony where he
not only recanted his confession implicating Sappington but also
corroborated Sappington's defense theory. Sappington does not allege
that he disagreed with Kalb's trial strategy.
In light of the foregoing, the court had a reasonable
basis for believing that the attorney-client relationship had not
deteriorated to a point where Kalb could no longer effectively aid
Sappington in the fair presentation of his defense. Sappington failed to
show "justifiable dissatisfaction" with his counsel, e.g., a
complete breakdown in communications. Accordingly, the district court
did not abuse its discretion in denying Sappington's motions.
Affirmed.
DAVIS, J., not participating.
GREENE, J., assigned.1
1REPORTER'S NOTE: Judge
Richard D. Greene, of the Kansas Court of Appeals, was appointed to hear
case No. 94,416 vice Justice Davis pursuant to the authority vested in
the Supreme Court by K.S.A. 20-3002(c).