State v. Anthony

Decision Date27 October 2006
Docket NumberNo. 92,362.,92,362.
Citation145 P.3d 1
PartiesSTATE of Kansas, Appellee, v. George E. ANTHONY, Appellant.
CourtKansas Supreme Court

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Robert D. Hecht, district attorney, argued the cause, and Amy M. Memmer, assistant district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

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

Defendant George E. Anthony appeals his jury trial conviction on one count of first-degree premeditated murder. He raises six issues for our consideration: (1) Was his testimony improperly impeached with his post-arrest silence? (2) Is he entitled to reversal of his conviction because of prosecutorial misconduct? (3) Should the videotape of his interrogation shown to the jury have been redacted to remove a detective's comments on his veracity? (4) Should the district court judge have given a limiting instruction regarding evidence of other wrongs? (5) Should the district court judge have given an Allen-type instruction? and (6) Does cumulative error require reversal?

Anthony's conviction followed his third trial for the murder of David Carrington, Anthony's off-and-on landlord and employer. The first two trials resulted in hung juries on the first-degree murder charge. In the second trial, Anthony was acquitted on charges of aggravated burglary and theft.

Carrington's wife, Yelena, discovered her husband's body on the ground outside their house at 9:30 a.m. on October 9, 2002. At some point, she also realized that she was missing $60 to $80 in $20 bills from her purse, which she kept inside the open back door of the house.

Paramedics responding to Yelena Carrington's 911 call initially believed that Carrington had suffered a heart attack and fallen. However, coroner Erik Mitchell, M.D., concluded that Carrington's injuries were not consistent with that scenario; rather, Carrington died from extensive damage to his skull and brain from multiple blows to his head and neck.

Once Carrington's death was determined to be suspicious, crime scene investigators gathered physical evidence from the scene, including fingerprints, hair, samples of blood spatter, shoe imprints from the Carringtons' kicked-in gate, and fingernail scrapings from Carrington. Despite DNA testing and other analysis, none of this physical evidence implicated Anthony.

Yelena Carrington gave law enforcement officers Anthony's name, among others, saying that he was one of several people who had a "beef" with her husband. Anthony had been evicted more than once from one of Carrington's rental properties, where he sometimes did repair work. One of the evictions had happened the previous month, and, this time, Carrington had obtained a restraining order against Anthony to keep him off the properties. Testimony about the existence of the restraining order and a certified copy of the order were admitted into evidence against Anthony over a relevance objection by defense counsel. Anthony was unaware of the restraining order until after Carrington was killed. A police detective also testified that he was aware of a threat Anthony had made about Carrington.

Once police had Anthony's name, Detective Don Kennedy went to the house at which Anthony and his girlfriend, Stephanie Brown, had been staying and left his card. Anthony called Kennedy on October 11 and set up an appointment, which Anthony did not keep. On October 14, Kennedy discovered Anthony and Brown sleeping in a car, and they agreed to come to the police station to talk.

At the station, Kennedy informed Anthony of his rights and questioned him for 35 minutes, during which time Anthony said that he was asleep with Brown on the morning Carrington was killed, that he had not gone to the Carringtons' house, and that he had not spoken with Carrington.

Kennedy then interviewed Brown. She said Anthony had told her on the night of October 8 that he needed to get up early the next morning to do something. When an alarm clock Anthony had set went off at 5 a.m. the morning of Carrington's death, Anthony got up and told Brown he had to go to work. She asked him not to go, and he said they needed money. When she asked if she could go with him, he said no and said he "didn't need any witnesses." Anthony returned about 6:35 a.m. and told her not to tell anyone he had left the house. When he returned, he had a new pack of cigarettes and three $20 bills, one of which he gave to Brown.

After interviewing Brown, Kennedy returned to renew his questioning of Anthony. Approximately 2 hours had passed. After another officer took photographs of Anthony's hands and took some items of his clothing, Kennedy told Anthony that he knew Anthony had killed Carrington, that there was enough evidence to prove Anthony did it, and that all he wanted to know was why. Anthony said he did not kill Carrington.

Kennedy persisted, and Anthony admitted he had gone to the Carrington home the morning of the crime. He said that he merely talked to Carrington about their differences; about the eviction; about Anthony's disability, a missing eye; and about how badly Carrington had treated him. Anthony maintained that he argued with Carrington but that Carrington had been alive when he left.

Kennedy stated again that he had the evidence to prove Anthony killed Carrington, and that he just wanted to know why. Anthony finally said: "I don't know. I don't know. I'm not sure. It wasn't intentional. I guess that's it," and then, "After all the years of bullshit I couldn't take it no more." The detective then asked Anthony to start at the beginning and recount the story, and Anthony asked for a lawyer and ended the interview.

Kennedy testified that his tactic in interviewing Anthony was to make him believe police already knew Anthony had committed the murder and just wanted an explanation. When the jury watched the videotape of Anthony's interrogation, a passage in which Kennedy referenced Anthony's past drug usage was muted. A limiting instruction was given about the muted passage. The defense did not object to the admission or the viewing of the videotape.

The Carringtons' neighbor, Dave Stevens, testified that, at about 5:50 a.m. on the morning of Carrington's murder, someone was walking in the neighborhood when he and his wife were out walking. He testified the person was a 6'2" black male, about 20 years old. Stevens also said the person was holding a long object like a baton. Anthony is a black male, 6'8" tall. He was 48 years old at the time of Carrington's murder.

Anthony introduced evidence that the police received a call from another witness who saw a man carrying a golf club in the area on the morning Carrington was killed. The man was described as a white male, 5'10" to 6' tall.

Impeachment with Post-Arrest Silence

Anthony's first argument on appeal is that the prosecutor used testimony from Kennedy that Anthony had ended the interview, as well as the videotape of the interrogation in which Anthony invoked his right to counsel, to impeach Anthony with his postarrest silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Fifth Amendment to the United States Constitution, and § 10 of the Kansas Constitution Bill of Rights.

The State argues that this issue was not preserved through appropriate objections at trial. If this court reaches the merits of the issue, the State asserts that this case is distinct from Doyle and no error occurred.

A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. State v. Diggs, 272 Kan. 349, 365, 34 P.3d 63 (2001). Issues not raised before the trial court may not be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003).

However, there are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground. State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005).

It is not clear from the record on appeal that the jury actually saw that portion of the videotape in which Anthony invoked his right to counsel. However, it is clear that members of the jury heard Kennedy testify that Anthony chose to discontinue the interview after his admissions and Kennedy's ensuing request that Anthony recite his story from the beginning. Kennedy's response to the prosecutor's question on this point was interrupted momentarily by defense counsel's request to approach the bench, but Anthony's lawyer withdrew the request immediately, without lodging an objection.

Regardless, we reject Anthony's position on this issue. The State is correct that the argument was not preserved, but it also fails on the merits. This is not a case, as in Doyle, where a defendant was silent when first contacted by law enforcement officers. See Doyle, 426 U.S. at 619, 96 S.Ct. 2240. Anthony was not silent. When interrogated, he confessed. He never invoked his right to silence. And he invoked his right to counsel only after the cat was out of the bag. Under these circumstances, we see no Doyle violation and no federal or state constitutional problem.

Prosecutorial Misconduct

Anthony argues that the prosecutor "committed repeated misconduct" in three specific instances, one during opening statement and two during closing argument. We are willing to examine these instances even in the absence of defense objections at trial. See State v. Dixon, 279 Kan....

To continue reading

Request your trial
72 cases
  • State v. Murray, No. 94,619.
    • United States
    • Kansas Supreme Court
    • January 18, 2008
    ...and specific objection to an alleged error in order to preserve the issue for appellate review. See K.S.A. 60-404; State v. Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006). However, when a defendant's claim for prosecutorial misconduct implicates his or her right to a fair trial, an appellate......
  • State v. Scott, No. 83,801.
    • United States
    • Kansas Supreme Court
    • May 16, 2008
    ...that of two conflicting versions of an event, one version is more likely to be credible based on the evidence. See State v. Anthony, 282 Kan. 201, 210, 145 P.3d 1 (2006); Davis, 275 Kan. at 122, 61 P.3d 701. The prosecutor's statement in this case does not constitute vouching. Instead, his ......
  • State v. Ellmaker
    • United States
    • Kansas Supreme Court
    • December 4, 2009
    ...has previously been approved, see State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003), and reaffirmed in State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006). But this court recently announced in Salts, 288 Kan. 263, Syl. ¶ 2, 200 P.3d 464, that it is error to include the last se......
  • State v. Gaona
    • United States
    • Kansas Supreme Court
    • March 2, 2012
    ...movies during cross-examination." Gaona, 41 Kan. App. 2d at 1075. Citing K.S.A. 60-404 and this court's decisions in State v. Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006), and King, 288 Kan. at 341, the panel held Gaona's "failure to make a timely and specific objection" barred review on a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT