State v. Burnett

• Decision Date: 10 February 2012
• Docket Number: No. 100,854.,100,854.
• Citation: 270 P.3d 1115,293 Kan. 840
• Parties: STATE of Kansas, Appellee, v. Theodore G. BURNETT, Appellant.
• Court: Kansas Supreme Court

270 P.3d 1115

293 Kan. 840

STATE of Kansas, Appellee,

v.Theodore G. BURNETT, Appellant.

No. 100,854.

Supreme Court of Kansas.

Feb. 10, 2012.

Syllabus by the Court

1. When a party fails to object to a jury verdict form that is then challenged on appeal, an appellate court applies a clearly erroneous standard of review.

2. A jury verdict form is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.

3. A double jeopardy claim is not ripe for appellate review if the defendant has not been punished twice for the same offense and the State is not attempting to punish the defendant a second time for the same offense.

4. To be ripe for appellate review, issues must have taken shape and be concrete rather than hypothetical and abstract.

5. In reviewing allegations of prosecutorial misconduct, an appellate court first determines whether the prosecutor's comments were outside the wide latitude allowed the prosecutor in discussing the evidence. If so, the court considers whether the improper comments constitute plain error; that is, whether the comments prejudiced the jury against the defendant and denied the defendant a fair trial.

6. When a prosecutor deliberately misstates the controlling law, he or she steps outside the considerable latitude given prosecutors. However, even a misstatement of the law does not require reversal if it does not constitute plain error.

7. In considering whether a prosecutor's remark in closing argument misstated the law, an appellate court does not consider the remark in isolation but instead considers the remark in the context of the entire closing argument and the instructions given to the jury.

8. When a defendant argues photographs admitted at trial were overly repetitious, gruesome, or inflammatory, the appellate court applies an abuse of discretion standard in reviewing the admitted photographs.

9. Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.

10. The party asserting an abuse of discretion bears the burden of showing such an abuse of discretion.

11. In considering the admission of photographic evidence, an appellate court first determines whether the photos are relevant.

12. In a murder case, photographic evidence is generally relevant if it depicts the extent, nature, and number of wounds inflicted.

13. Photographs that are relevant and material to the jury's understanding of medical testimony are generally admissible, including photographs which aid a pathologist in explaining the cause of death.

14. Because the State has the burden to prove every element of the crime charged, photographs used to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant even if the cause of death is not contested.

15. Because the inclusion in a jury instruction of the phrase “another trial would be a burden on both sides” is both misleading and inaccurate, a district court errs in giving a jury instruction that includes that phrase.

16. A jury instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict had the instructional error not occurred.

17. Under K.S.A. 21–4721(c)(1), an appellate court lacks jurisdiction to consider sentencing challenges on direct appeal when a defendant has received a presumptive sentence.

Sarah Ellen Johnson, of Capital 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 MORITZ, J.:

A jury convicted Theodore Burnett of capital murder and aggravated kidnapping for his role in the kidnapping and murder of C.B., a pregnant, 14–year–old girl. After the jury was unable to reach a unanimous verdict in the penalty phase of the trial regarding imposition of the death penalty, the sentencing court imposed a life sentence with no possibility of parole on the capital murder conviction. Further, the court imposed a consecutive aggravated presumptive prison sentence of 618 months on the aggravated kidnapping conviction.

In this direct appeal, Burnett argues his convictions must be reversed because the verdict forms used in the penalty phase of the trial did not allow the jury to express fact findings sufficient to constitute an acquittal on the death penalty. Thus, Burnett reasons the verdict forms insufficiently protected his constitutional right to be free from double jeopardy in any future prosecution. Because this claim is not ripe for appellate review, we decline to consider this issue.

Burnett also claims the prosecutor committed reversible misconduct during closing argument by suggesting that Burnett's mere presence during the aggravated kidnapping of C.B. was sufficient to convict him of aiding and abetting the kidnapping. Further, Burnett argues the trial court erred in admitting autopsy photographs that Burnett claims were more prejudicial than probative and in instructing the jury that another trial would be a burden on both sides. Finding no reversible trial errors, we affirm Burnett's convictions.

Finally, Burnett contends the sentencing court violated his constitutional rights when it imposed an aggravated presumptive sentence for the kidnapping conviction. Because we lack jurisdiction to review the imposition of a presumptive sentence, we dismiss that portion of Burnett's appeal.

Factual and Procedural Background

On the evening of June 9, 2006, C.B. went to a skating rink in Wichita with her friends, A.K. and M.D. At the time, C.B. was 14 years old and 9 months pregnant with Elgin Ray Robinson, Jr.'s child. At some point, C.B. left the skating rink with Robinson's friend, Everett Gentry, and told her friends that Gentry would take her to meet Robinson. C.B. never returned to the skating rink.

On June 15, 2006, C.B.'s body was discovered near a field in Butler County, buried face down in a shallow grave. Homicide detectives quickly focused their investigation on Gentry and Robinson, who both initially denied involvement in C.B.'s murder. Ultimately, Gentry implicated himself, Burnett, and Robinson in the murder.

The State charged Burnett with capital murder, in violation of K.S.A. 21–3439(a)(2) (intentional and premeditated killing pursuant to a contract or agreement), an off-grid person felony; and aggravated kidnapping, in violation of K.S.A. 21–3421, (kidnapping by deception with intent to inflict bodily injury, see K.S.A. 21–3420[c] ), a severity level 1 person felony.

At trial, Gentry testified for the State, providing the primary evidence implicating Burnett in C.B.'s murder and kidnapping. Gentry's testimony is summarized below.

Gentry's trial testimony

Several months before C.B.'s murder, Robinson told Gentry that he needed to get rid of C.B. because her parents intended to seek rape charges against Robinson after C.B.'s child was born and Robinson's paternity was established. Robinson offered Gentry $1,000 if Gentry would assist Robinson in carrying out C.B.'s murder. Gentry agreed to assist.

As Gentry and Robinson planned C.B.'s kidnapping and murder, Gentry believed Robinson would kill C.B. But a few weeks before the murder, Gentry and Robinson decided Robinson should be out of town when the murder occurred so that suspicion did not focus on Robinson. However, Gentry was unwilling to perform the act of killing C.B., so the two men discussed bringing in a third party.

In the two months preceding C.B.'s murder, Burnett had allowed Gentry to sell crack cocaine out of Burnett's apartment in exchange for Gentry providing Burnett with crack cocaine for his personal use. Gentry eventually approached Burnett to assist him in murdering C.B., telling Burnett that Gentry had a “friend” who wanted someone murdered and was willing to pay someone to carry out the murder. Gentry offered to pay Burnett $500 if he would help him with the murder. Burnett “[p]retty much agreed to it.”

A few days before the murder, Gentry and Burnett dug a shallow hole near a city golf course, anticipating that they would place C.B.'s body there after her murder. But Burnett suggested the area was too populated, making it risky to bury a body there. So on the day of C.B.'s murder, Gentry drove alone to another potential burial site outside of Andover that he and Robinson had selected, and Gentry dug a shallow grave. That evening, after receiving a text message from Robinson, Gentry picked up C.B. from the skating rink, took her to his sister's house, told C.B. that Robinson was on his way, and left to pick up Burnett at his apartment. A few minutes later, Gentry returned with Burnett to the house where C.B. was waiting.

Burnett was surprised that the intended victim was a “pregnant girl,” and he told Gentry he needed to smoke some crack cocaine to calm his nerves before carrying out the murder. So Gentry and Burnett left C.B. at the house and drove to a nearby Walgreens store where Gentry purchased several items, including ground coffee and a flashlight to be used at the burial site. The two men then returned to Burnett's apartment where Burnett smoked crack. As they left the apartment, Burnett grabbed some latex gloves from a dresser drawer in the living room along with a cord used to attach electronics to a television....