State v. Carter, No. 88,933.

• Decision Date: 25 June 2004
• Docket Number: No. 88,933.
• Citation: 278 Kan. 74,91 P.3d 1162
• Parties: STATE OF KANSAS, Appellee, v. JEROME G. CARTER, Appellant.
• Court: Kansas Supreme Court

278 Kan. 74

91 P.3d 1162

STATE OF KANSAS, Appellee, v. JEROME G. CARTER, Appellant.

No. 88,933.

Supreme Court of Kansas.

Opinion filed June 25, 2004.

Libby K. Snider, assistant appellate defender, argued the cause and was on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, 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.:

Jerome Carter appeals his convictions and sentences for first-degree felony murder, aggravated robbery, and criminal possession of a firearm. These convictions followed Carter's second trial. He was originally convicted of first-degree premeditated murder, aggravated robbery, and criminal possession of a firearm; but those convictions were reversed on a claim of ineffective assistance of counsel. See State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000). Carter and his first trial counsel had disagreed over the attorney's pursuit of a guilt-based defense, despite Carter's assertions of innocence.

Four issues are now before us: (1) Did the district court properly admit portions of eyewitness testimony, including identifications, from Carter's preliminary hearing and first trial? (2) Did the prosecutor commit reversible misconduct? (3) Was there sufficient evidence to support the convictions? and (4) Did the consideration of Carter's juvenile adjudications in calculating his criminal history score violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)?

Carter's convictions arose out of an attempt to rob three men: Cavelle Horn, Troy Hawkins, and Carlos Johnson. According to Horn's testimony, two men entered the house the three were occupying and demanded cash. Horn told the intruders he had no money but said they could take his car keys. When one of the intruders left the house to survey the car, the three intended victims realized the second intruder was unarmed. Horn, Hawkins, and Johnson locked the door to keep the armed intruder outside and began beating the unarmed man. When the man who had gone outside heard the commotion, he attempted to break into the house through the front door. Horn and Johnson then fled through a back door, but Hawkins remained. The man outside eventually was able to reach inside the door with his gun, and he fired several shots, fatally wounding Hawkins and freeing his confederate.

After the murder, a pager found outside the house was tracked to Lelandra Sweeney, the unarmed intruder who had been beaten. When the police found Sweeney, he gave them Carter's name and a description of his car. Once the car was found, the police began surveillance of it. That surveillance led to discovery of the murder weapon in the possession of Cassandra Smith. Smith told the police that Carter was her boyfriend and that he had given the gun to her to get rid of it. At trial, Smith testified that Carter and Sweeney left her house together on the night of the murder. They returned an hour later, and Sweeney was bleeding. The same night, Carter told her "he had dumped on somebody," which she understood to mean that he "shot at somebody, killed somebody." She also testified that Carter was wearing a yellow jacket on the night of the murder; testing performed on the jacket revealed Hawkins' DNA was on it.

Horn testified at Carter's preliminary hearing and at both of his trials. During the preliminary hearing and first trial, Horn identified Carter as the armed intruder. At the second trial, Horn testified to clear memories of many of the night's events but said he did not get a good look at the man with the gun, that he could not identify Carter, and that he did not remember doing so in earlier proceedings. The district court thereafter permitted the prosecutor to read certain portions of Horn's earlier testimony from the preliminary hearing and first trial and to question Horn about those passages.

Later, during closing argument, the prosecutor said:

"Twice under oath, within a short period of time, [Horn] positively identified the defendant. And you saw [Horn] testify last week. Did you find his testimony to be unusual? Did you find it to be interesting that ... Horn told you that he remembered what happened, that his memory was good now? He remembered absolutely everything except he didn't remember identifying the defendant.

....

"He didn't remember identifying the defendant, but he remembered everything else.

"Now what has changed with ... Horn between 1998 and today? Has his memory gone away? No, he said his memory was still good. That's not the problem. It's not that I don't remember. I remember everything else. I just can't remember him doing it. Since that time [Horn's] become a father. He's got a three-month-old daughter. He's now a man with responsibilities which go beyond himself. He's no longer footloose and fancy-free. He has to think about other people. Did it appear to you that [Horn] was telling you the truth when he said, Uh, I don't remember, uh, identifying the defendant or saying, uh, I can't do it now, or did he appear to be afraid?"

The district court overruled a defense objection to this statement, and the prosecutor continued:

"Well that's a decision you have to make; and, you know, the judge has told you in one of the instructions, Instruction No. 2 actually, to use your common knowledge and experience. Well, that's a lawyer's fancy way of saying use your common sense. Why would [Horn's] testimony change between then and now? You have to make that call."

In addition, the prosecutor commented on Smith's testimony in the following way:

"[W]hen [Smith] went to lie down with [Carter] he told [her] he'd killed someone, that he dumped on them. Remember, I asked her what does "dump" mean, and she said it means to shoot someone. What [Carter] didn't say [was] Lelandra killed someone. [Carter] didn't say some unknown guy killed someone. [Carter] said, I did it. I shot someone."

The defense did not object to this comment by the prosecutor.

Admission of Earlier Identifications of Carter

Carter first argues that the district court's admission of Horn's identifications of him from the preliminary hearing and first trial violated his right of confrontation under the Sixth Amendment to the United States Constitution. In Carter's view, Horn's lack of memory made him, for all practical purposes, unavailable for cross-examination at the second trial and Carter's first trial counsel's pursuit of a guilt-based defense eliminated any incentive to cross-examine Horn closely on the earlier identifications. In short, Carter asserts that the earlier identifications were unreliable because they were tainted by his first trial counsel's unconstitutional ineffective assistance.

There can be no doubt that Horn's previous identifications of Carter were relevant, our first consideration when examining appellate challenges to a district court's admission of evidence. See State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 (2004); K.S.A. 60-407(f). Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question. Cf., e.g., K.S.A. 2003 Supp. 60-460(m) (certain relevant business writings admissible as matter of law once foundation laid); K.S.A. 60-445 (discretion to exclude relevant evidence after weighing probative value, risk of unfair prejudice). When the underlying facts are undisputed, an appellate court's review of whether a witness was available or unavailable and whether a Confrontation Clause issue arose is de novo. See State v. Bailey, 263 Kan. 685, 697, 952 P.2d 1289 (1998). In this case, because Horn's testimony is of record, this court is equipped as well as the district court to determine whether his memory loss classified him as available or unavailable and whether an issue arose under the Confrontation Clause. Our standard of review is therefore de novo.

Carter relies principally on our decision in State v. Lomax & Williams, 227 Kan. 651, 608 P.2d 959 (1980). In Lomax, a witness identified the defendant at an earlier preliminary hearing in a related case. When the defendant went to trial, however, the witness denied any memory of the events in question. The prosecution then sought admission of her prior preliminary hearing testimony from the related case. On appeal, we held that, in order for the witness' prior testimony to be admissible at the trial, the district court must have determined that she was then present and available for cross-examination. We concluded that, even though the witness was physically present for trial, she was unavailable for cross-examination because "she simply refused to testify." Her consistent responses of "I don't know" or "I don't recall" on all pertinent points made her just as unavailable as though her physical presence could not have been procured. As a result, her earlier testimony, untested by defendant's counsel's opportunity for cross-examination, was inadmissible. 227 Kan. at 656-62.

Carter believes his circumstances are comparable. Any prior opportunity for his counsel to cross-examine Horn was hampered by his first trial counsel's strategy and therefore inadequate. This means the State could not meet the requirements of K.S.A. 2003 Supp. 60-460(c)(2), which permits prior testimony of an unavailable witness to be admitted only if "the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered...." In addition, Carter emphasizes the United States Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). Crawford overruled Ohio v. Roberts, 448...