State v. Frierson

• Decision Date: 28 February 2014
• Docket Number: No. 103,304.,103,304.
• Citation: 298 Kan. 1005,319 P.3d 515
• Parties: STATE of Kansas, Appellee, v. Melvin D. FRIERSON, Appellant.
• Court: Kansas Supreme Court

298 Kan. 1005

319 P.3d 515

STATE of Kansas, Appellee,

v.Melvin D. FRIERSON, Appellant.

No. 103,304.

Supreme Court of Kansas.

Feb. 28, 2014.

Syllabus by the Court

1. Aggravated burglary under K.S.A. 21–3716 does not restrict application of its “remaining within” language to instances when an initial entry is lawful. In this case, the State presented sufficient evidence that the defendant both entered into and remained within the victim's home.

2. A multistep evidentiary standard of review applies to determine whether material or evidence in question on a motion in limine would be inadmissible at trial. A district judge's decision on whether a pretrial ruling on a motion in limine is justified as opposed to a ruling during trial is reviewed for abuse of discretion.

3. Generally any deficiency in chain of custody affects the weight of evidence, not its admissibility, and a district judge's determination of whether there is a reasonable certainty that a piece of evidence has not been materially altered is reviewed for abuse of discretion.

4. On the facts of this case, the district judge did not abuse his discretion in ruling that a baseball cap left at the scene of a crime by a perpetrator would be admissible in the trial of the defendant. The judge did not err in denying the defendant's motion in limine.

5. Battery under K.S.A. 21–3412(a)(1)—intentionally or recklessly causing bodily harm to another person—is not a lesser included offense of aggravated robbery under K.S.A. 21–3427. Thus an instruction on battery was not legally appropriate in this aggravated robbery case.

6. When a defendant has failed to establish that any trial error occurred, the cumulative error doctrine is inapplicable.

7. Because restitution constitutes a part of a criminal defendant's sentence, its amount can be set only by a district judge in open court with the defendant present. Until any applicable restitution amount is decided, a defendant's sentencing is not complete.

8. A sentencing hearing may be continued or bifurcated so that restitution is ordered at one setting and the amount decided at a later setting. In such instances, a district judge should specifically order the continuance or bifurcation.

9. A defendant may waive his or her right to be present in open court when a judge sets an additional amount of restitution as part of sentencing. On the facts of this case, which demonstrate that the defendant and his counsel agreed to entry of an order setting an additional restitution amount by the district judge without a continued or bifurcated sentencing hearing in open court with the defendant present, this court will not vacate the additional amount.

10. In this case, (1) an agreement, arrived at in open court in the defendant's presence, among the district judge and the parties to extend sentencing for 30 days to settle on an additional amount for restitution, and (2) defense counsel's later signature on the judge's order of additional restitution were sufficient to maintain subject matter jurisdiction over the sentencing and dispense with the requirement of a continued hearing in open court with the defendant present before entry of the judge's order.

11. A sentencing judge's use of a defendant's criminal history to arrive at his or her sentence, despite no jury finding of that history beyond a reasonable doubt, does not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

This case arises from an attack on Otis Webb in April 2008. After answering his door, Webb was hit in the mouth and knocked to the ground. While one attacker pinned Webb down, the other dug through Webb's pockets and stole $950. During the altercation, Webb knocked a cap off of the head of one of the intruders. DNA collected from the cap connected defendant Melvin Frierson to the attack.

At Frierson's trial on charges of aggravated robbery and aggravated burglary, Frierson objected to the admission of the cap, arguing that its chain of custody had been broken. The district court overruled the objection and admitted the cap. A jury found Frierson guilty on both counts. At sentencing, the district court judge ordered Frierson to pay $950 in restitution and held any further amount of restitution open for 30 days to determine Webb's dental expenses. A subsequent order, entered by the district judge without further hearing, increased Frierson's restitution amount to $1,262.

Frierson appealed, and the Court of Appeals affirmed in State v. Frierson, No. 103,304, 2011 WL 4716340 (Kan.App.2011) (unpublished opinion). We granted Frierson's petition for review on the same six issues he raised before the Court of Appeals.

Factual and Procedural Background

On the night of the attack, Webb was at home when he heard a knock at his door. Webb answered the door and saw a man, later identified as Richard Davis, standing at his front door. Davis asked Webb if an “old white man” lived at the residence. Webb, an elderly black man, said no. Davis turned around and walked toward a car parked in front of Webb's residence. Webb shut and locked his door.

Moments later, Webb heard a second knock. Davis was again standing at the front door when Webb answered. This time, a second man, later identified as Frierson, rushed Webb and hit him in the mouth with something hard. Both men then tackled Webb. Frierson held Webb down while Davis rifled through Webb's pockets and removed $950. Frierson and Davis then left the home, and law enforcement officers arrived shortly.

The blow to Webb's mouth dislodged at least one of his front teeth. Webb would eventually testify that he had four more teeth removed after the attack. He also would testify, however, that his dentist had told him his “gums were bad and all [his] teeth needed to come out.”

The cap left by the intruders at Webb's home was collected by an investigating officer and placed in an evidence bag. The officer was not available to testify at Frierson's trial. Frierson's pretrial motion in limine to suppress evidence of the cap because of a break in its chain of custody was unsuccessful, as was his trial objection based on lack of foundation. Pretrial, the district judge explained that the chain of custody issue went to the weight of the cap evidence rather than its admissibility.

At the close of evidence at trial, Frierson requested a battery instruction as a lesser included offense on the aggravated robbery charge. The district judge rejected the request. On the aggravated burglary count, the judge instructed the jury that, in order to find Frierson guilty, it had to agree that Frierson “knowingly entered into or remained in [Webb's residence].” The jury found Frierson guilty of both charged offenses.

On July 22, 2009, the district judge sentenced Frierson to a total prison term of 216 months. The district judge also ordered Frierson to pay $950 to Webb as restitution. Although the judge had documentation of Webb's dentist bills, it was unclear what percentage of those bills was related to the attack and what percentage was attributable to preexisting dental disease. With the agreement of both parties, the judge held the restitution issue open for 30 days so that the State and Frierson could settle on the correct amount. The district judge informed Frierson that he had 10 days in which to file an appeal. Frierson filed his notice of appeal on July 23, 2009, designating the judgment and sentence of the district court as the orders he appealed from. On August, 19, 2009, the judge filed a restitution order requiring Frierson to pay Webb $1,262. Neither Frierson nor his counsel had attended any court hearing on the subject of restitutionafter July 22, 2009. But defense counsel signed the July order, which said nothing about whether Frierson had waived his right to be present at sentencing.

Frierson raised six issues before the Court of Appeals, which affirmed his convictions and sentence in Frierson, 2011 WL 4716340, at *5.

First, Frierson argued that there was insufficient evidence to prove the alternative means of aggravated burglary as charged by the State. The panel explained that “to convict on the charge of aggravated burglary, the jury must have found that Frierson knowingly entered into or remained within Webb's residence at the time of the crime.” 2011 WL 4716340, at *1. Frierson conceded that the State had proved that he entered Webb's house, but he argued there was insufficient evidence to prove that he had “remained within” the house. Frierson urged the panel to interpret the alternative means of committing aggravated burglary under K.S.A. 21–3716 as mutually exclusive. Relying on State v. Gutierrez, 285 Kan. 332, 337, 172 P.3d 18 (2007), in which this court held the opposite, the panel concluded that there was sufficient evidence that Frierson intended to commit a theft as he remained within Webb's house. Frierson, 2011 WL 4716340, at *2.

Second, Frierson claimed that the district judge erred by denying his motion in limine to exclude the baseball cap from evidence. Because the officer who collected the cap was unavailable to testify, which created a break in the evidence supporting the cap's chain of custody, Frierson argued that there was no reasonable certainty the cap had not been materially altered. Employing an abuse of discretion standard of review, the panel concluded that the district judge did not err. The panel cited caselaw holding that any break in the chain of custody goes to the weight of the evidence rather than its admissibility. 2011 WL 4716340, at *2–3.

Third, Frierson asserted that the district court erred when...