State v. Bornholdt

• Decision Date: 31 January 1997
• Docket Number: No. 75185,75185
• Citation: State v. Bornholdt, 261 Kan. 644, 932 P.2d 964 (Kan. 1997)
• Parties: STATE of Kansas, Appellee, v. Michael L. BORNHOLDT, Appellant.
• Court: Kansas Supreme Court

Page 964

932 P.2d 964

261 Kan. 644

STATE of Kansas, Appellee, v. Michael L. BORNHOLDT, Appellant.

No. 75185.

Supreme Court of Kansas.

Jan. 31, 1997.

Syllabus by the Court

1. In a case where a hard 40-year sentence has been imposed, K.S.A.1993 Supp. 21-4627 obligates the Kansas Supreme Court to consider any errors asserted in the review and appeal and to notice unassigned errors appearing of record if the ends of justice would be served thereby, but it does not require that we treat the record other than as it is presented to us.

2. A trial court has no duty to conduct a hearing before allowing a confession to be admitted into evidence absent some type of objection or motion from the defendant.

3. In the Supreme Court's review of a hard 40-year sentence under K.S.A. 1993 Supp. 21-4627, the court's obligation to consider all errors asserted in the review and appeal even though a proper objection was not made below does not require the court to become a finder of fact or to make a determination upon which no record exists.

4. The Confrontation Clause of the Sixth Amendment affords the accused the right to cross-examination. A proper and important function of the right to cross-examination is the exposure of the witness' motivation in testifying. Generally, the right to cross-examine witnesses is subject to evidentiary rules, and the trial court has broad discretion in controlling the examination.

5. Error in restriction of cross-examination is subject to a harmless error standard if the reviewing court can declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. However, there are certain circumstances in which the denial of effective cross-examination amounts to a constitutional error of such magnitude that no showing of prejudice is required for reversal.

6. If the findings of the trial court on a motion to suppress evidence are based on substantial evidence, this court on review will not substitute its view of the evidence for that of the trial court.

7. It is a well-known rule of law that an inventory search of a vehicle cannot be valid unless the police first obtain lawful possession of the vehicle. The police must have authorization by statute or ordinance to lawfully impound a vehicle, whether at the station house or other place of safekeeping. If the police do not have express authority to impound a vehicle, they may still take lawful custody of a vehicle when there are "reasonable grounds" for impoundment.

8. Subject to certain exclusionary rules, the admissibility of physical evidence is within the sound discretion of the court and is to be determined by the court on the basis of its relevance and its connection with the accused and the crime charged.

9. When a physical object is offered into evidence and a question arises as to its connection with either the defendant or the crime charged, unless it is clearly irrelevant, the object should be admitted for such weight and effect as the jury sees fit to give it.

10. Acts done or declarations made before, during, or after the happening of the principal fact may be admissible as part of the res gestae where they are so closely connected with it as to form in reality a part of the occurrence.

11. Relevant evidence is evidence having any tendency to prove a material fact. To be admissible, evidence must be confined to the issues but need not bear directly upon them.

12. Evidence of the attending circumstances at the time an accused is arrested, including articles of property which are found in his or her possession, is relevant and admissible where the circumstances logically tend to connect the accused with the crime charged.

13. Error in the admission or exclusion of evidence by the court is not grounds for granting a new trial or setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. At every stage of the proceeding, the court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. When reviewing the erroneous admission or exclusion of evidence, the error is harmless if no substantial right of the defendant is involved.

14. In reviewing a trial court decision regarding the suppression of evidence, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and reviews the ultimate legal decision drawn from those facts de novo with independent judgment.

15. When deciding whether to exclude eyewitness identifications, the trial court must first determine if the identification procedure was unnecessarily suggestive. If so, then the court must decide whether that identification led to a substantial likelihood of a misidentification.

16. In a criminal action, a trial court must instruct the jury on the law applicable to the defendant's theories for which there is supporting evidence. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction.

17. Under the facts of this case, the trial court was not required to give either an accomplice or an informant instruction because there was no evidence, only speculation and supposition, to support either instruction.

18. The defendant's right to present a defense is subject to the rules of evidence and the case law. The standard of review for a claim of improper exclusion of relevant evidence is whether the trial court abused its discretion in excluding the testimony.

19. When the State relies on direct evidence, circumstantial evidence that someone other than the defendant committed the crime charged is irrelevant in the absence of other evidence to connect such third party with the crime.

Michael J. Helvey, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

David Lowden, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

LARSON, Justice:

Michael Bornholdt appeals his jury convictions of criminal possession of a firearm and first-degree murder with the imposition of a hard 40-year sentence for the shooting death of Jon Dreiling.

Factual Background

In the spring of 1993, Jon Dreiling and Eric Day were arrested for drug-related offenses. Dreiling made a deal with the State and agreed to testify against Day in a trial scheduled in September 1993.

In July and August 1993, Bornholdt told his friend Tracy Wheeler that Dreiling was a snitch and did not deserve to live. In July, Bornholdt approached Marian Cunningham and told her that a person involved in a drug case was willing to pay him to kill a State witness in that case. Cunningham claimed Bornholdt asked for her help because he knew the victim and did not want the victim to see his face. Bornholdt wanted Cunningham to distract this person while he shot him, in return for $2,000. Cunningham refused but did not contact the police.

About 4 p.m. on Saturday, August 21, 1993, Dreiling was in his vehicle waiting for a light at the intersection of Harry and Market Streets in Wichita. A man approached Dreiling from the rear and shot him in the back of the head. The man tossed the gun at Kirk Eck, who was stopped one lane over and behind Dreiling's vehicle, saying, "Here, [expletive], hold the gun." The man ran east on Harry, then turned north down an alley in between Market and Broadway Streets, throwing down his T-shirt and a rubber glove as he ran.

Eck described the man as having dirty blond shoulder-length hair, with a white shirt, and wearing shorts with lavender/purple biking shorts underneath. He thought the man had a mustache. Eck saw the man's face from about 3 feet away through an open window for a few moments before being hit in the left cheek by the gun. Police, suspecting Day was the gunman, showed Eck a photo array which contained pictures of six men, including Day, but not Bornholdt. Eck did not identify anyone in the array.

Around the time of the shooting, Lloyd Robinson was routing a stump north of Harry Street in the alley between Main and Market Streets. He saw a jogger running north toward him, whom he described as a white male, 5'10"' to 6', slight to medium build, about 160 to 175 pounds, with collar-length sandy or dishwater blond hair, and an unshaven face. That evening Robinson discovered a murder had taken place and called the police, telling them the runner he saw had worn shorts and tennis shoes and had hair pulled up behind, but he did not think the man had worn a shirt.

Other witnesses at the scene included James Krueger, who was Dreiling's boss, and Twila Miller. Krueger was in a vehicle facing the parking lot on the south side of Harry and was preparing to turn north on Market when he heard the gunshot. As he was turning, he saw a man run toward a blue Geo Tracker, toss something inside, and run northward while peeling off a T-shirt. Krueger saw only the back of the man, but described him as Caucasian, around 6', with a wiry build and shoulder-length hair. Krueger told police at the scene that the man wore a T-shirt and purple biking shorts with shorts over them of an unknown color.

Miller was waiting at the intersection of Harry and Market in a Chevrolet Blazer just in front of Dreiling's vehicle. The windows of her vehicle were tinted, and she wore tinted lenses. She saw a man approach the vehicle through her side mirror. She described him as a white male, 5'7"' to 5'8"', early 20's, about 130 to 135 pounds, with dark brown to black hair and a full beard.

The police found a styrofoam cup, with a lid and straw, on top of Dreiling's vehicle, recovered a gun from the passenger floorboard of Eck's Tracker, and found a white T-shirt with...