State v. Corbett, No. 91,518.

• Decision Date: 24 March 2006
• Docket Number: No. 91,518.
• Citation: 130 P.3d 1179
• Parties: STATE of Kansas, Appellee, v. Trever J. CORBETT, Appellant.
• Court: Kansas Supreme Court

130 P.3d 1179

STATE of Kansas, Appellee, v. Trever J. CORBETT, Appellant.

No. 91,518.

Supreme Court of Kansas.

March 24, 2006.

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Syllabus by the Court

1. The transcript from a witness' prior testimony may be admitted as evidence at trial pursuant to K.S.A. 60-460(a) if the witness is testifying at the trial.

2. The critical element in analyzing whether an eyewitness identification should be admitted is the reliability of the identification. If the identification bears some indicia of reliability and there is not a substantial likelihood of irreparable misidentification, the jury must decide whether the evidence is reliable enough to support the defendant's conviction.

3. Juries have the knowledge and experience to determine the reliability of an eyewitness identification. However, the jury should be instructed on the factors to consider in determining the reliability of any eyewitness identification. When such an instruction is coupled with vigorous cross-examination and persuasive argument by defense counsel dealing realistically with the shortcomings and trouble spots of the identification process, the defendant's rights are protected.

4. The scope of cross-examination is subject to reasonable control by the trial court.

5. The opponent of evidence must make a timely and specific objection to the admission of evidence to preserve the issue for appeal.

6. A conviction for the gravest crime may be sustained by circumstantial evidence, which is any evidence that tends to prove a fact in issue by proving other events or circumstances which afford a basis for a reasonable inference by the jury of the occurrence of the fact in issue.

7. The jury is charged with the responsibility of weighing the evidence and determining witness credibility. Appellate courts do not reweigh the evidence or decide which witnesses are credible.

8. A prosecutor's misstatement of fact in closing argument does not warrant reversal if the comment was brief in the context of the entire record and the misstated fact is not a significant part of the State's theory of the case.

9. Under the facts of this case, the prosecutor's use of a demonstrative silence during closing argument was not improper.

10. Simply pressing a point without any supporting authority is akin to failing to brief an issue. When an appellant fails to brief an issue, the issue is deemed waived or abandoned.

11. Neither K.S.A. 60-456 nor K.S.A. 60-458 requires any specific form of questioning for an expert's opinion.

Michael S. Holland, of Holland and Holland, of Russell, argued the cause and Michael S. Holland II, of the same firm, was with him on the brief for appellant.

Keith E. Schroeder, district attorney, argued the cause and was on the brief for appellee.

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

Trever Corbett appeals his conviction for the first degree premeditated murder of his ex-wife Crystal Casey, claiming that: (1) the trial court erroneously admitted transcripts of two witnesses' depositions; (2) the trial court erroneously admitted testimony from two eyewitnesses; (3) the trial court violated his right to confrontation by limiting his cross examination of an eyewitness; (4) the trial court improperly admitted hearsay from the decedent; (5) the evidence was insufficient to support his conviction; (6) the prosecutor committed misconduct during closing argument; and (7) the trial court erroneously admitted evidence.

Crystal Casey married Trever Corbett in August 1995. Their daughter, Emily, was born in January 1996. Crystal and Corbett divorced in December 1996. In their divorce decree, the court ordered joint legal custody of Emily and designated Crystal as the primary residential parent. Although Crystal and Corbett argued over the custody of Emily, the two eventually became friends. In fact, Corbett was one of the pallbearers at Crystal's funeral.

Crystal met her second husband, Shane Casey, in February 1997. She married Shane in September 1997. Crystal and Shane's first child, a daughter named Abbey, was born in April 1998. Their son, Kaleb, was born in December 1999. Crystal and Shane were divorced in April 2000.

Shortly before her death in June 2000, Crystal had decided to move with her children to Wichita to attend beauty school. Crystal planned to live with her sister, Melissa, and Melissa had given Crystal a key to Melissa's home. Corbett was very upset about Emily moving to Wichita. Crystal told her mom that Corbett acted like she was moving "clear across the country" rather than 35 minutes away. Corbett told Crystal that he wanted Emily to live with him instead. However, Crystal refused and insisted on moving with Emily to Wichita.

At approximately 11 p.m. on June 25, 2000, Crystal's best friend and part-time roommate, Bridgette Darling, left Crystal's apartment with her boyfriend. When Bridgette returned the next morning at approximately 8 a.m., she discovered Crystal's body lying at the bottom of the entry stairs in Crystal's apartment. Stiff from rigor mortis, Crystal's body was partially blocking the front door, and Bridgette had to push Crystal's body aside to enter the apartment.

Bridgette found the door to Crystal's apartment unlocked, which was very unusual. There were no signs of forced entry and no signs of violence in Crystal's apartment. Nothing appeared to have been stolen, and Crystal had not been sexually molested. Two of Crystal's three children Abbey, age 2, and Kaleb, age 7 months, were in the apartment. Neither of the children had been harmed. Crystal's 4-year-old daughter, Emily, was not home with Crystal that night. Emily had been with her father, Trever Corbett, for several days.

Bridgette immediately called Crystal's mother, who advised her to call 911. A few minutes later, police and an emergency paramedic arrived. The police had to move Crystal's body slightly to gain entry to the apartment. The paramedic, who put on gloves after receiving the emergency call, drove to the apartment and immediately checked Crystal's pulse by touching her neck and then touched Crystal's arm to note the rigor in her body.

An autopsy revealed that Crystal died from manual strangulation. She had multiple bruises all over her body and scratches on her face, indicating that she had been involved in a violent struggle. Because of the struggle, Crystal's attacker had to reposition his hands around her neck to compensate. The deputy coroner swabbed Crystal's skin and clipped Crystal's fingernails to test for the presence of her attacker's DNA.

Crystal's relationship with her second ex-husband, Shane, was very tumultuous. Crystal and Shane argued 2 days before Crystal's death. Because of the nature of Crystal's relationship with Shane, Crystal's mother and the police initially suspected that Shane had killed her.

Jenny Williams lived in the same apartment complex as Crystal. Williams had grown up in the same town as Crystal and had gone to high school with Corbett. Williams' daughter also attended the same preschool as Emily. At 1:30 to 1:45 a.m. on June 26, 2000, Williams and her boyfriend, Bryan Miller, were walking around the apartment complex. Williams and Miller observed a partially dressed man walking from the doorway to Crystal's apartment. The man was carrying a pile of clothes. Williams thought she recognized the man as Corbett, so she said hello. The man did not respond and pulled the pile of clothes closer to his face.

When Williams and Miller heard about Crystal's death the next morning, they both decided to contact the police to report seeing a man outside Crystal's apartment. Williams and Miller approached the police while they were at Crystal's apartment. Williams initially told Detective Rayburn that she thought she had seen Corbett outside Crystal's apartment but was not certain of his identity because he did not respond when she spoke to him. Williams also told two of her friends and her mother that she had seen Corbett outside Crystal's apartment. Erin Bailey, one of Williams' friends, worked with Crystal. Erin Bailey told Williams that Williams must have been mistaken about seeing Corbett because Corbett was Crystal's "nice" ex-husband. According to Erin Bailey, Williams must have seen Shane because he was the ex-husband who always fought with Crystal.

A few hours after Williams reported what she had seen, Detective Rayburn showed Williams a photographic lineup to see if she could identify the man outside Crystal's apartment. The photographic lineup included Shane's picture but did not include Corbett's picture. Williams did not know Shane, but she selected his picture from the photographic lineup. Miller did not know Corbett and did not identify the man outside Crystal's apartment by name. However, Miller provided police with a detailed description of the man he had seen and stated that he would probably recognize the man if he saw him again. After showing the photographic lineup to Williams, Detective Rayburn approached Miller with the same lineup. Miller did not initially select a picture from the lineup. Detective Rayburn accused Miller of smoking marijuana and ordered Miller to come to the police station another day to make an identification. Before Miller went to the police station, he spoke with Williams, and Williams told him which picture she had chosen. When Miller met with Detective Rayburn, he chose the same picture as Williams, later stating he felt pressured to choose one of the pictures in the lineup.

A couple of months later, Williams and Miller appeared for separate depositions with the district attorney. Williams reaffirmed her identification of Shane's picture. Miller, however, recanted his identification, stating that he could not identify Shane's picture under oath because Shane was not the person Miller had seen outside Crystal's apartment.

Sometime after the...