State v. Branning, 84,876.
| Decision Date | 13 July 2001 |
| Docket Number | No. 84,876.,84,876. |
| Citation | 271 Kan. 877,26 P.3d 673 |
| Parties | STATE OF KANSAS, Appellee, v. RONNIE DALE BRANNING, Appellant. |
| Court | Kansas Supreme Court |
Randall L. Hodgkinson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.
Ellen H. Mitchell, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with her on the brief for appellee.
The opinion of the court was delivered by
Ronnie Dale Branning was convicted by jury of first-degree felony murder, K.S.A. 21-3401(b), aggravated robbery, K.S.A. 21-3427, aggravated burglary, K.S.A. 21-3716, and criminal destruction of property, K.S.A. 21-3720. His appeal challenges hearsay statements of an unavailable witness, the trial court's limitation of his cross-examination concerning Garrett Harris' plea agreement, the trial court's failure to compel the appearance of a defense witness, the trial court's failure to instruct on the lesser included offenses of premeditated murder, and the imposition of an illegal sentence. Our jurisdiction is pursuant to K.S.A. 22-3601 (b)(1) (imposition of a maximum sentence of life imprisonment).
On September 16, 1998, Jarold Johnson was found dead in his residence in Salina, Kansas. After an investigation, charges were filed against Branning, Louis Brouillard, Terry Gilbert, and Harris.
Harris testified against Branning pursuant to a plea bargain. The State agreed to drop the murder charges against Harris for Harris' agreement to testify truthfully and plead guilty to the aggravated robbery and aggravated burglary charges. Harris testified that on the night of September 14, 1998, he, Branning, Brouillard, Jason Lewis, and Gilbert were together at a party. Gilbert and Brouillard stated that they were going to collect some money, and all five of the men got into Brouillard's pick-up truck and went to Johnson's house.
Harris further testified that Brouillard passed out socks to the group as they approached the house and told them to put the socks over their hands. Gilbert kicked in the front door, and everyone entered the house except Lewis. Gilbert and Brouillard proceeded to beat up Johnson, and Gilbert struck him on the head with a coffee table. Harris observed some change and cartons of cigarettes being taken from the residence.
After they left and returned to the truck, Harris stated he saw Branning hold up a wallet and say, "I got it." The five then got back into the truck and went back to Brouillard's house.
Branning testified and denied any participation in the crime. He could not remember his exact whereabouts on the evening in question but said he could have been at Dave Koenig's home. He admitted Johnson owed him approximately $550 for a roofing job he did while working for Johnson.
Other facts will be discussed as they relate to the specific issues raised.
Hearsay statements
Branning first argues that statements allegedly made by Gilbert were introduced at trial in violation of his right to confrontation under the Sixth Amendment. At trial, Margaret Kelso Kenney was called as a witness by the State. She testified that she was at a party at Gilbert's house on the night of September 14, 1998, and Gilbert, Lewis, Brouillard, and Harris were all present. She did not believe Branning was at Gilbert's house on that night. She said that she saw the four leave together.
When Kenney was asked what Gilbert told her he was going to do prior to leaving, the defense counsel objected. The court overruled the objection, finding that Gilbert was unavailable because he was a defendant in a companion case and had given written notice to the court that he was invoking his Fifth Amendment rights. The court concluded that "the exception to the hearsay rule of unavailability has been complied with." When defense counsel asked the court to question Gilbert because he believed that Gilbert wanted to testify, the court responded: Gilbert never testified at Branning's trial.
The prosecutor then asked Kenney when Gilbert said he was going to return. She did not remember that he had given any specific time. After several more questions, none of which related to statements made by Gilbert, she was asked what Gilbert told her when he came back late that evening. She responded that Gilbert admitted to fighting with Johnson over at his house and stated that he, Brouillard, Harris, and Lewis were involved. However, she testified that she did not remember him saying that Branning was there. The defense counsel did not object during any of this subsequent line of questioning. It is important to note that none of Kenney's testimony implicated Branning.
Later, Officer Siemsen was called to the stand. He was asked about his interview with Kenney. He stated that during the interview Kenney told him that Johnson was not supposed to die. The defense counsel objected, arguing that the statement was clearly based on hearsay. The court noted the objection and overruled it. Eight questions later, the prosecution asked the officer if Kenney stated which individuals were involved, and he said she had named Gilbert, Brouillard, Branning, and Harris. The defense did not object to this question.
Officer Feldman, who was also present at the Kenney interview, was asked the same question about the named participants, and the defense counsel made a timely objection. The officer was allowed to answer, and he gave the same response as Officer Siemsen.
Pointing to the above-mentioned objections, Branning now argues all the testimony of Kenney is "squarely" before our court. The State points out that Branning's objections were not made at the time the objectionable evidence was introduced and contends the issue has not been properly preserved, citing Welch v. State, 270 Kan. 229, 233, 13 P.3d 882 (2000), where we said:
As we have previously held in McKissick v. Frye, 255 Kan. 566, 582, 876 P.2d 1371 (1994):
There was no request for a continuing objection in McKissick, and we held that "[w]ithout a continuing objection made when the procedure was first raised by the plaintiff, on appeal Frye cannot contest the subsequent discussion of the procedure in plaintiffs closing argument." 255 Kan. at 583.
Branning made no request for a continuing objection here. We hold this issue was not properly preserved for appeal. Further, it appears that Kenney's statements that Branning was not involved was actually helpful to and substantiated his subsequent testimony that he did not participate in the charged crimes. Branning cannot have it both ways, allow nonincriminating evidence to be admitted without objection and then contend on appeal after a guilty finding that the testimony was erroneously admitted.
Limited cross-examination
Branning next alleges that it was error for the trial court to prohibit cross-examination of Harris about his possible sentencing range under his plea agreement.
During direct examination, Harris explained the plea agreement under which he was testifying: The State agreed to drop the murder charge against him if he pled guilty to aggravated robbery and aggravated burglary and testified truthfully in the co-defendant's trials. On cross, the defense counsel had Harris reiterate the terms of the plea. When Harris was asked whether there was a recommendation for sentencing, he responded: "There's no understanding, I don't think."
Defense counsel then asked if Harris knew what his sentencing range would be. The trial court objected sua sponte and admonished the defense counsel to not get into the specifics of the sentencing range. The defense counsel argued that it was important for the jury to know that Harris was pleading down from a possible life sentence to 46 to 51 months. The defense counsel also stated that it was his belief that a recommendation for concurrent sentencing would be made. The prosecutor denied promising any recommendations. The trial court rejected the defense's argument, reminded counsel that the bargain had been fully disclosed, and again admonished counsel to not mention time or months concerning the sentences.
We have considered this issue in our prior decision of State v. Davis, 237 Kan. 155, 157-58, 697 P.2d 1321 (1985). In that case, Davis was allowed to question a prosecutorial witness about a plea bargain, but the court would not allow questions about the specific sentence because such information would allow the jury to infer what Davis' sentence might be. We affirmed the trial court's ruling and opined:
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