State v. Everett

• Decision Date: 29 March 2013
• Docket Number: No. 100,529.,100,529.
• Citation: 297 P.3d 292
• Parties: STATE of Kansas, Appellee, v. Francis EVERETT, Appellant.
• Court: Kansas Supreme Court

297 P.3d 292

STATE of Kansas, Appellee,

v.Francis EVERETT, Appellant.

No. 100,529.

Supreme Court of Kansas.

March 29, 2013.

Syllabus by the Court

1. Admissibility of all other crimes and civil wrongs evidence is governed by K.S.A. 60–455. Evidence admitted in rebuttal to other evidence under an “open the door” rule is not an exception to this rule and cannot be admitted independent of K.S.A. 60–455.

2. Even if a defendant presents evidence that the defendant was on probation at the time a subsequent crime was committed, the State cannot admit evidence regarding the specific nature of the prior crime unless the evidence regarding the prior crime is material to issues the jury must decide.

3. K.S.A. 2012 Supp. 60–261 provides that an error in the admission of evidence cannot be the basis for reversal unless failing to reverse would be inconsistent with substantial justice. Under this standard, the party benefitting from the error carries the burden of demonstrating there is no reasonable probability the error affected the trial's outcome in light of the entire record.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Aaron C. Freestone, legal intern, was with him on the briefs for appellant.

Allen Shelton, county attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.

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

This appeal raises the issue of whether a defendant's presentation of evidence that he was on probation at the time the current crime was committed opens the door to rebuttal evidence regarding a prior crime that may be admitted independent of K.S.A. 60–455. In State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), this court held that evidence of a prior crime or civil wrong could not be admitted independent of K.S.A. 60–455, could not be admitted to prove a defendant's propensity to commit the crime charged, and could only be admitted if the evidence is relevant to prove a material fact. In this case, evidence of the prior crime was not material to any issues to be decided by the jury, even after the defendant presented evidence regarding his probation. Evidence of the prior crime was merely relevant to prove propensity, which is not a permissible basis for admission. Under the facts of this case, the evidence of the prior crime was sufficiently prejudicial to require reversal of the defendant's conviction.

Factual and Procedural Background

Francis Everett was charged with one count of manufacturing a controlled substance in violation of K.S.A. 65–4159(a), after Tearesa Holmes, who had been granted transactional immunity, told law enforcement officers that she had manufactured methamphetamine with Everett in March or April 2006.

At Everett's trial, Holmes testified the two of them manufactured methamphetamine sometime in March, April, or possibly May 2006. According to Holmes, Everett approached her at home on a weekday, told her he had some pills, and asked if she wanted to “whip up a batch.” Holmes described the steps they took and the location of their manufacturing process, indicating they drove into the country in Everett's car. Holmes also testified she and Everett returned to her house after they completed the manufacturing, she split the methamphetamine in half, put each half into a bag, and let Everett choose a bag. They both smoked some of the methamphetamine and Everett shot some in his arm. She claimed Everett said they had “done a good job.”

There were some discrepancies between Holmes' trial testimony and her earlier statements to law enforcement officers and testimony at Everett's preliminary hearing. Significantly, she had previously stated the manufacture occurred in either March or April 2006; she had made no mention of May. This testimony led the State to seek an amendment to the complaint to include the month of May as a possible time period during which the crime had been committed. Even though this motion was not made until after the close of all evidence, including the defense's case-in-chief, the court allowed the amendment.

In his defense, Everett called Rex Moubry, his employer in 2006. Moubry testified that Everett worked for him for approximately 2 years. During March and April 2006, Everett never missed a full day of work, in fact, “he never missed a day in all two years.” There was, however, a week during March and April 2006 that Everett did not work a full 40 hour week because Moubry sent Everett home a few hours early one day when Everett was sick. Similar evidence regarding Everett's work history in the month of May was presented by written stipulation after the court allowed the State to amend the complaint.

Everett also called a private investigator to testify that his car was not in drivable condition. The investigator testified that Everett's wife reported the car was damaged in 2005 in a collision with a deer. The investigator also testified the car's registration tag expired on May 31, 2005.

Finally, John Tremblay, the director of the Northwest Kansas Community Corrections and Parole, testified that at the time of the alleged events Everett was part of the community corrections program. As part of the program, Everett was required to take random drug tests for eight or nine different drugs, including methamphetamine. Everett was tested 22 times in March and April 2006 without a positive result for methamphetamine. Tremblay testified that methamphetamine will stay in your system for approximately 72 hours after use. In addition, Everett participated in a methamphetamine treatment program that met on Tuesdays and Thursdays. As part of that program, he was subject to random testing at each treatment session. After the complaint was amended, a written stipulation was presented to the jury that established that Everett did not test positive for methamphetamine during the month of May.

The State started its cross-examination of Tremblay by asking, without objection from the defense: “Now, community corrections is a program for people that have committed some crime, is that correct?” Tremblay answered: “Felony crimes only, sir.” The State then asked, again without objection from the defense: “And so that means that [Everett] was there because he'd committed a crime?” Tremblay responded: “Yes, sir.” Then the State asked to approach the bench with defense counsel. In a bench conference outside the hearing of the jury, the trial judge modified a pretrial order in which the judge had prohibited evidence regarding Everett's prior conviction and his previous involvement in manufacturing methamphetamine. In modifying the order, the judge noted that defense counsel had mentioned Everett's probation during voir dire and had asked Tremblay questions about Everett's involvement in a methamphetamine treatment program. Defense counsel objected to the modification of the order and the admission of the evidence because “the information as to what he was actually convicted of has not been brought forward. The actual crime would be very prejudicial against him.” The court responded:

“I'm going to conclude that the ... prejudicial effect of the testimony is outweighed by its probative value. It would seem to me that the jury would justifiably have questions regarding how he may have gotten into this program, and my guess is based upon what the witness has already indicated, they have inferred he's involved with some type of drug treatment program as a result of a felony conviction.”

The State then asked Tremblay, before the jury, about Everett's prior conviction, and Tremblay replied that the crime was possession of drug paraphernalia to manufacture methamphetamine.

The jury convicted Everett of one count of manufacture of methamphetamine in violation of K.S.A. 65–4159(a). Everett was sentenced to 162 months' imprisonment.

Court of Appeals' Decision

Everett appealed his conviction and raised five issues before the Court of Appeals. Everett contended: (1) Evidence of the prior conviction was erroneously admitted; (2) a late amendment to the complaint should not have been allowed; (3) an improper answer was given when the jury asked about the consequences of a hung jury; (4) jurors should have been recalled to determine if there had been juror misconduct; and (5) cumulative error deprived him of a fair trial. A majority of the court affirmed Everett's conviction; Judge Greene dissented. State v. Everett, No. 100,529, –––Kan.App.2d ––––, 2010 WL 922571 (Kan.App.2010) (unpublished opinion).

In ruling on whether the trial court improperly admitted evidence of Everett's prior conviction, the majority determined that Everett opened the door to the admission of the evidence by mentioning Everett's prior criminal activity during voir dire and by asking Tremblay about Everett's participation in community corrections and related drug abuse testing and treatment programs. The majority also reasoned that defense counsel should have objected to the State's questions that allowed the jury to learn that Everett had been previously convicted of a felony. Everett, 2010 WL 922571, at *7. Finally, the majority determined the trial court did not abuse its discretion because it gave clear consideration to the prejudicial effect of the evidence. Based on these considerations, the majority concluded the trial court did not err in admitting evidence of Everett's prior conviction. Everett, 2010 WL 922571, at *8.

Judge Greene, in his dissent, cited State v. White, No. 94,716, –––Kan.App.2d ––––, 2007 WL 1964865 (Kan.App.) (unpublished opinion), rev. denied 285 Kan. 1177 (2007), and federal cases for the view that “the consequences of opening the door should be commensurate with the degree it has been opened.” Everett, 2010 WL 922571, at *24 (Greene, J., dissenting). Judge Greene concluded that Everett's “record of reporting and drug testing did not open the door to the nature of his conviction that led to...