State v. Bennington

• Decision Date: 28 October 2011
• Docket Number: No. 98,656.,98,656.
• Citation: 264 P.3d 440
• Parties: STATE of Kansas, Appellee,v.William BENNINGTON, Appellant.
• Court: Kansas Supreme Court

264 P.3d 440

STATE of Kansas, Appellee,

v.William BENNINGTON, Appellant.

No. 98,656.

Supreme Court of Kansas.

Oct. 28, 2011.

Syllabus by the Court

1. A statement given to a bank in order to document the theft of a financial card and to seek an account credit for unauthorized usage of the card is nontestimonial, and admission of the statement into evidence does not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution as applied in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), even though the declarant is unavailable for cross-examination.

2. A statement given to a sexual assault nurse examiner is testimonial when the statement is made in the presence of a law enforcement officer who asks questions, the declarant is reporting past events, there is not an ongoing public safety or medical emergency, and the statement is given in a formal setting.

3. A statement given to a sexual assault nurse examiner is testimonial when the statement is made in answer to questions asked by the sexual assault nurse examiner while completing a questionnaire provided by the Kansas Department of Health and Environment as part of a sexual assault evidence collection kit approved by the Kansas Bureau of Investigation pursuant to K.S.A. 2010 Supp. 65–448, where there is not an ongoing emergency or other circumstances to suggest the statement is nontestimonial.

4. Violation of the Confrontation Clause is subject to analysis under the federal harmless error rule. To declare a federal constitutional error harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), an appellate court must be persuaded beyond a reasonable doubt that the error did not affect the trial's outcome in light of the entire record, i.e., there was no reasonable possibility that the error affected the verdict. The party benefiting from the error bears the burden of showing that the error was harmless. Where there are multiple crimes charged and the evidence as to each charge differs, an appellate court must proceed by applying the Chapman federal harmless error standard to each alleged crime.

5. A contemporaneous objection must be made to all evidentiary claims, including those alleging prosecutorial misconduct, to preserve the issue for appellate review.

6. Under the circumstances of this case, the prosecutor did not commit prosecutorial misconduct during the State's closing argument when stating, “[T]hat's what he did.” In context, the prosecutor was reviewing the elements and distinguishing the charged crime from a lesser included offense and was not making a statement of the prosecutor's personal opinion regarding the defendant's guilt.

7. Under the circumstances of this case, the prosecutor did not commit prosecutorial misconduct during the State's closing argument when telling the jury the deceased victim could not say “that the man who did this to her [is] sitting right here,” but his DNA can. The prosecutor was not expressing a personal opinion of the defendant's guilt but was communicating to the jury that the DNA evidence proved the defendant was the person who committed the offenses.

8. Under the circumstances of this case, the prosecutor's remarks during the rebuttal portion of the State's closing argument regarding the deceased victim's inability to be at the trial were not outside the latitude allowed a prosecutor during argument because the remarks were appropriate rebuttal to the defense argument that the State's evidence was second-hand.

9. Use of prior convictions in a criminal defendant's criminal history score to enhance the defendant's sentence without requiring the history to be included in the complaint and proved to a jury beyond a reasonable doubt does not violate the defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.David Lowden, assistant district attorney, argued the cause, and Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were on the brief for appellee.

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

William Bennington appeals his convictions and sentences, raising three issues. First, he argues his right to confront his accuser was violated when the trial court admitted into evidence testimony of a bank employee and a sexual assault nurse examiner (SANE) regarding statements made to them by the victim, who died before the trial. Bennington also argues his convictions must be reversed because the prosecutor committed misconduct by violating an order in limine and by making improper comments during closing argument. Finally, he argues his sentences must be reversed because the court erred by imposing increased sentences based on a criminal history that was not proven to a jury beyond a reasonable doubt.

We reject most of Bennington's arguments, but we find merit in his argument that the victim's statements to the SANE, which were made in the presence of a law enforcement officer who asked questions and reported past events rather than information regarding an ongoing public safety or medical emergency, were testimonial and should not have been admitted. Applying the federal constitutional harmless error standard to determine if this error requires reversal of Bennington's convictions, we affirm some of Bennington's convictions—aggravated burglary, aggravated robbery, aggravated kidnapping, rape, and two counts of criminal use of a financial card—but reverse his convictions on two aggravated criminal sodomy counts because we determine there is a reasonable possibility the error impacted the verdicts on those charges.

Facts and Procedural Background

In the fall of 2003, V.B., a 77–year–old female, was sexually attacked and robbed in her home. Bennington was identified through a photo taken at an automated teller machine (ATM) when V.B.'s financial card was used after the aggravated burglary; the financial card had been stolen during the robbery, and V.B. had been forced to provide her personal identification number (PIN). When DNA evidence found at the scene of the crime matched Bennington's profile, he was charged with aggravated burglary, in violation of K.S.A. 21–3716; aggravated robbery, in violation of K.S.A. 21–3427; aggravated kidnapping, in violation of K.S.A. 21–3421; rape, in violation of K.S.A. 21–3502(a)(1)(A); two counts of aggravated criminal sodomy, in violation of K.S.A. 21–3506(a)(3)(A); and two misdemeanor counts of criminal use of a financial card, in violation of K.S.A. 21–3729(a)(1).

V.B. had a stroke and died before Bennington's jury trial, but she had related the events of the incident in some detail to her niece, to a SANE at the hospital, and, more generally, on a claim form submitted to her bank in reporting the unauthorized use of her financial card. Through a pretrial “Motion to Exclude Testimony of V.B.,” Bennington sought to exclude evidence of any statements made by V.B.; his objections were based on his confrontation rights articulated by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The trial court denied the motion.

A jury found Bennington guilty of all charges. He moved unsuccessfully for judgment of acquittal and a new trial on the basis of the purportedly erroneous admission of V.B.'s statements. At sentencing, Bennington received consecutive sentences on all counts, totaling 1,812 months' incarceration.

On direct appeal, the Court of Appeals determined V.B.'s statement to her bank was nontestimonial and its admission was not error. The Court of Appeals did not resolve the question of whether the statements to the SANE were testimonial, holding that even if the admission was erroneous, any error was harmless. The Court of Appeals rejected Bennington's arguments regarding prosecutorial misconduct and sentencing error, ultimately affirming all convictions and sentences. State v. Bennington, No. 98,656, –––Kan.App.2d ––––, 2009 WL 981683 (Kan.App.2009) (unpublished opinion).

This court granted Bennington's petition for review and has jurisdiction pursuant to K.S.A. 22–3602(e) (petition for review) and K.S.A. 20–3018(b) (same).

More facts and details of the Court of Appeals' decision will be provided as necessary to the analysis.

Confrontation Rights

Because V.B. died before the trial, she was unavailable to testify. Her statements to her bank and to the SANE—the only statements that are discussed in the petition for review and are before us—were clearly hearsay. Bennington had no opportunity to cross-examine V.B. regarding the statements. Consequently, Bennington argues his confrontation rights under the Sixth Amendment to the United States Constitution were violated.

Standard of Review

Bennington's arguments are subject to a de novo standard of review because he challenges the legal basis of the trial court's admission of evidence under the Confrontation Clause of the Sixth Amendment to the United States Constitution. State v. Dukes, 290 Kan. 485, 487, 231 P.3d 558 (2010) (de novo standard applies to review of legal basis of admission of evidence); State v. Appleby, 289 Kan. 1017, 1054–55, 221 P.3d 525 (2009) (same); State v. Henderson, 284 Kan. 267, 276, 160 P.3d 776 (2007) (de novo standard applies to determination of whether the right of confrontation has been violated).

These same arguments are raised in State v. Miller, ––– Kan. ––––, 264 P.3d 461 (2011), this day decided. Consequently, we include our discussion of the general legal principles in both opinions.

General Legal Principles

The Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend....