State v. Dixon, 97,020.

Citation209 P.3d 675
Decision Date19 June 2009
Docket NumberNo. 97,020.,97,020.
PartiesSTATE of Kansas, Appellee, v. Wallace L. DIXON, III, Appellant.
CourtUnited States State Supreme Court of Kansas

Sarah E. Johnson, of Capital Appellate Defender office, argued the cause and was on the brief for appellant.

Jared S. Maag, deputy solicitor general, argued the cause, and Rebecca E. Rand, assistant attorney general, and Paul J. Morrison, attorney general, were with him on the brief for appellee.

The opinion was delivered by BEIER, J.:

Defendant Wallace L. Dixon, III, brings this appeal challenging his convictions on two counts of felony murder and other offenses arising out of an apartment explosion in Emporia. We affirm.

Dixon challenges: (1) refusal to grant a mistrial because a witness altered his opinion on the stand; (2) refusal to grant a mistrial because a juror saw Dixon in shackles; (3) refusal to give instructions on certain lesser included offenses; (4) refusal to give a unanimity instruction regarding the underlying crime for the burglary charges; (5) adequacy of the felony-murder, burglary, and criminal damage to property elements instructions; (6) admission of evidence that Dixon's mother attempted to obstruct investigation of the explosion; and (7) cumulative error.

Factual and Procedural Background

This appeal follows Dixon's retrial after our decision in State v. Dixon, 279 Kan. 563, 112 P.3d 883 (2005) (Dixon I). Our opinion in Dixon's first appeal recites much of the pertinent factual and procedural background, which we will not repeat here. It is enough to say that Dixon was involved in a series of events leading up to a July 29, 2001, explosion and fire at an Emporia apartment complex, which resulted in the deaths of Dana Hudson and her infant son, as well as injuries to other residents and those who attempted to assist at the scene.

On remand, the district judge initially denied a defense motion to change venue but granted it after jury questionnaires were returned. The case was moved from Lyon County to Saline County. The charges at issue in the second trial mirrored those in the first: two counts of first-degree murder, in violation of K.S.A. 21-3401; aggravated arson, in violation of K.S.A. 21-3719; six counts of aggravated battery, in violation of K.S.A. 21-3414(a)(2)(A) and (B); two counts of burglary, in violation of K.S.A. 21-3715; felony theft, in violation of K.S.A. 21-3701; criminal damage to property, in violation of K.S.A. 21-3720; aggravated assault, in violation of K.S.A. 21-3410; and criminal possession of a firearm, in violation of K.S.A. 21-4204.

The State notified the court and Dixon of its intent to pursue the alternative charge of felony murder based on aggravated arson, anticipating correctly that the evidence in the second trial would be largely identical to the evidence in the first. The following events and comparisons between the first and the second trials bear specific mention because of their particular importance to the issues here.

Expert Testimony

Ethan Griffin, one of Dixon's accomplices, had testified during the first trial that he believed Dixon kicked the stove in Alicia Shaw's apartment, which he saw lying on its side when he and Dixon left the apartment. In the second trial, Griffin was a hostile witness. He admitted that he had heard the stove fall and that he had testified before that Dixon had kicked or pushed the stove.

Dixon's theory of the case was that agents of the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) pressured Griffin into fabricating this portion of his story because ATF believed a gas leak from the stove was the best explanation for the explosion at the apartment complex. Defense counsel maintained that the evidence, including burn patterns and expert testimony from ATF's Peter Lobdell, would demonstrate that the stove was upright when the explosion occurred.

As he did in the first trial, Lobdell, a certified fire investigator with ATF, testified for the State concerning the cause of the explosion and fire. Dixon's counsel objected to a portion of Lobdell's testimony on the ground that it represented a change from his prior testimony and his original report.

In the first trial, Lobdell had observed that flexible tubing connecting the rigid natural gas supply pipe to the stove was intact but that the "supply pipe was manually manipulated to cause it to fail, to leak and emit gas into the apartment." In his expert opinion, he said, the manipulation of the pipe was an intentional criminal incendiary act. On cross-examination, he suggested that, in light of burn patterns on the stove, it could not have been situated on its side during the explosion.

On retrial, Lobdell again explained that the flexible tubing was intact and that the supply pipe had been manipulated and cracked. On cross-examination, however, he suggested that the stove could have been either on its side or upright at the time of the blast; he had no way to be certain. Lobdell acknowledged that he had said during the first trial that he did not think the stove could have been on its side. His ultimate opinion — that the pipe had been manually manipulated, creating a gas leak, and that the explosion was caused by an "intentional incendiary act" — remained unchanged.

The State also offered the testimony of a second expert, Dr. Mario P. Gomez, a professor of mechanical engineering, whom the ATF had hired to work as a consultant with Lobdell. Gomez testified at both trials that his observations led him to believe the supply pipe was "voluntarily" cracked or broken and had leaked natural gas into the apartment. Because natural gas is lighter than air, Gomez testified, it pooled near the ceiling, and the explosion created a powerful blast downward from a point somewhere above the apartment's refrigerator. Gomez opined at both trials that he believed the stove was on its side during the explosion. He also stated that he had learned since writing his report that the stove was found on its side, which was consistent with the damage he observed. He clarified, however, that the stove could have been either on its side or upright at the time of the explosion, that it made no difference whether it was standing, because "the same side was hit by the wave."

Dixon's counsel sought a mistrial after hearing Lobdell's testimony, claiming that the prosecution failed to notify the defense of Lobdell's change in his opinion. The State argued that there was no 180-degree change in the testimony, that the prosecution was unaware Lobdell had modified his opinion, and that the detail regarding the position of the stove was not significant. The district judge recessed to review case law, then questioned the prosecutor about whether the State had requested updated reports from its experts and questioned the defense about how the detail affected its strategy. The judge also reviewed a third expert's report, which had been obtained but not admitted by defense counsel; this report suggested that the stove may not have been upright at the time of the explosion. Ultimately, the judge denied the request for mistrial, stating:

"In considering this motion for mistrial, I note that the testimony of [Lobdell] in the first trial of the case fairly clearly evidenced his belief that the stove was upright at the time of the blast damage. His testimony here at this trial, in my view, indicated that that was still his belief, but he further expanded his opinion in this trial and went out on a limb to indicate that there may have been one other position for the stove that would have allowed it to receive the same amount of damage during the explosion as he observed, thinking the stove was upright. That was an expansion of his opinion, but apparently it is not reflected in any report nor did he make that information known to the State at any time prior to his testimony so that the State could have passed that to defense counsel."

The judge also noted that there had been no change in Gomez' opinion, who believed that the stove was on its side, despite a diagram in his report showing the stove sitting upright. The district court also observed that State v. Lewis, 238 Kan. 94, 97, 708 P.2d 196 (1985), to which the defense had directed his attention, did not require mistrial if an expert changes his or her position. Only if "the defendant has relied upon it to the point where now the defense would have been seriously prejudiced, then no admonition from the Court or instructions from the trial judge is going to make any difference and a mistrial would be mandated." The judge concluded that reports from other experts had put the defense on notice that there were questions about the position of the stove at the time of the blast. Furthermore, the defense had received a full opportunity to cross-examine, which established that there was "plenty of confusion as to where the stove was or was not"; there was no clear prejudice to defendant's position in any significant respect; and, "[i]f anything, [the discrepancy] has given the defense yet another tool to point out that perhaps the testimony, certainly, of [Lobdell] should not be accepted."

Shackles

During the retrial, it came to the district judge's attention that one juror had seen or heard Dixon in leg shackles and had told at least three other jurors about it. Dixon requested a mistrial, citing Deck v. Missouri, 544 U.S. 622, 635, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). The State asserted that Kansas law did not require a mistrial if the jury inadvertently viewed a defendant in leg restraints and that a curative instruction should be adequate to correct any problem.

The district judge questioned the juror directly, and the juror said he heard Dixon coming into the courtroom with shackles and told three other jurors. The judge asked the juror if the incident would "in any way affect the manner in which you have viewed this case" or "cause you to feel one way or another for or against [Dixon's] guilt or...

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