State v. Griffin

• Citation: 112 P.3d 862
• Decision Date: 03 June 2005
• Docket Number: No. 89,662.,89,662.
• Parties: STATE of Kansas, Appellee, v. Ethan M. GRIFFIN, Appellant.
• Court: United States State Supreme Court of Kansas

112 P.3d 862

STATE of Kansas, Appellee, v. Ethan M. GRIFFIN, Appellant.

No. 89,662.

Supreme Court of Kansas.

June 3, 2005.

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Reid T. Nelson, capital appellate defender, argued the cause and was on the briefs for appellant.

Kristafer R. Ailslieger, assistant attorney general, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

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

Ethan Griffin appeals his convictions of two counts of felony murder, five counts of aggravated battery, and two counts of burglary. He was sentenced to two consecutive life terms (each with no parole eligibility for 20 years) plus 72 months consecutive to the life terms.

This case is a companion case to State v. Dixon, Case No. 89,164, ___ Kan. ___, 112 P.3d 883, 2005 WL 1308901 (2005) this day decided. The convictions of Griffin and Dixon arose out of an explosion and apartment fire, which occurred in Emporia in July 2001. Dixon and Griffin were coparticipants in the crimes charged but were not tried together. Griffin testified as a witness for the State in Dixon's trial. He did not testify in his trial. The facts surrounding the explosion and fire are set out in State v. Dixon and will not be set out in detail in this opinion except as may be necessary in discussing issues not raised and discussed in State v. Dixon.

Griffin raises 10 issues on appeal. Five of them are similar to issues raised by Dixon.

1. WAS GRIFFIN DEPRIVED OF A FAIR TRIAL BY THE STATE'S USE OF INCONSISTENT PROSECUTORIAL THEORIES TO CONVICT HIM AND WALLACE DIXON OF THE SAME CRIMES?

Griffin makes two claims of prosecutorial inconsistency between his trial and Dixon's. First, he contends that he was portrayed as truthful in Dixon's trial, where he testified for the State, and as less than truthful in his own trial. Second, he contends that his participation in the second burglary of Alicia Shaw's apartment was played down in Dixon's trial and up in his own.

The State argues that this issue is not properly before the court because it is raised for the first time on appeal. Griffin does not contend that the issue was raised at trial, but he states that it was argued at the remand hearing on ineffective assistance of counsel. Examination of the transcript of the remand hearing at the pages cited by Griffin shows that the issue presented to the trial court was whether trial counsel should have had Griffin testify. The argument was made at that time by appellate counsel that inconsistencies between Dixon's and Griffin's trials could have been avoided if trial counsel had convinced Griffin to testify on his own behalf. Inconsistent prosecutorial theories were not an issue presented to the trial court so as to provide an opportunity to avoid or correct error.

As a general rule, issues not raised before the trial court will not be considered on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). There are several exceptions to the general rule, including where consideration of the question raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights. State v. Wiegand, 275 Kan. 841, 844, 69 P.3d 627 (2003). Griffin does not argue for exercising an exception in the circumstances of this case. We do not address the issue.

2. WAS GRIFFIN DEPRIVED OF A FAIR TRIAL BY THE PROSECUTOR'S MISSTATING THE EVIDENCE AND THE LAW IN CLOSING ARGUMENT?

Griffin contends that the convictions against him were obtained, at least in part, by prosecutorial misconduct in closing argument. An appellate court's standard of review is the same whether or not an objection was made at trial. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003). "Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant's constitutional right to a fair trial." State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000).

We use a two-step process in analyzing allegations of prosecutorial misconduct. First, the court determines whether complained-of comments were outside the wide latitude permitted a prosecutor for language and manner. Second, the court determines whether the prosecutor's remarks constitute plain error, that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny the defendant a fair trial. 275 Kan. at 121, 61 P.3d 701.

(a) Evidence. Griffin contends that, because the evidence was that Dixon knocked over the stove, it was incorrect for the prosecutor to state that defendant's acts were responsible for the deaths of Dana and Gabriel Hudson. Griffin complains of the following statements:

"Dana and Gabriel Hudson died that night. They died because of the defendant's acts along with Wallace Dixon and he should be held responsible for that."

"We know the defendant was inside that apartment, him and Wallace Dixon, and that they caused a leak in this pipe that ultimately exploded killing Dana and Gabriel. Nothing else caused it."

The prosecutor's statements conform to the well-established principles of aiding and abetting. The court has long recognized that all participants in a crime are equally guilty of that crime and any other reasonably foreseeable crime committed in carrying out the intended crime. See State v. Turner, 193 Kan. 189, 196, 392 P.2d 863 (1964); PIK Crim.3d 54.05 and 54.06.

The prosecutor told the jury that Griffin admitted burglarizing Alicia Shaw's apartment, but Griffin contends that he did not admit burglarizing the apartment on the second entry. He complains of the following statements:

"But that's what happened and that's what he admitted to. He went in the apartment. He committed a burglary and it was during the course of that burglary the place blew up."

"We brought you the defendant admitting going into the apartment, burglarizing it, and what Wallace Dixon did."

The State concedes that Griffin never said that he burglarized the apartment on the second entry; he did admit to entering the apartment with Dixon. The State contends that Griffin's entering the apartment a few hours earlier and stealing property raised the inference that he intended to do the same when he entered the apartment the second time. Intent, a state of mind existing at the time an offense is committed, does not need to be and rarely can be directly proven. It may be established by acts, circumstances, and inferences reasonably deducible from the evidence of acts and circumstances. State v. Wilkins, 269 Kan. 256, 264-68, 7 P.3d 252 (2000). In the absence of proof of other intent, or an explanation of an unlawful breaking and entry into the dwelling of another at night, it reasonably may be inferred that the intruder intended to commit a felony, theft, or sexual battery therein. In Wilkins, although the court reversed the defendant's conviction of burglary on double jeopardy grounds, it held that the evidence was sufficient to convict defendant of burglary where he was found in a pawn shop, having broken in through a hole in the roof. 269 Kan. at 264, 7 P.3d 252. In the present case, too, there is no other explanation for Griffin's second unlawful entry into the apartment, and from the evidence of his conduct in the first entry it reasonably may be inferred that he intended to resume his thievery in the second entry.

Griffin complains of two aspects of the following statements about how the apartment was going to be blown up:

"You heard what [Griffin] said about Wallace Dixon's intent, I'm going to burn that house down, I'm going to blow that apartment up. He chose. He chose to stay there. Even when Rodney Hayes, his best friend, said I'm done, I'm done, he shot at me, he wants to blow up a house, I'm done, we're going over to Donnie Wishon's...."

"The defendant made yet another choice, I'm going to go with Wallace Dixon. And when he did so he knew Wallace Dixon's intent. Because as you heard him say, he knew Wallace was intending to blow up that apartment. He knew and yet he made the choice."

Griffin claims that there was no evidence that Dixon said anything about an explosion. Griffin himself, however, told police that Dixon was talking like he would blow the house up. Griffin also complains that the prosecutor improperly changed the term "house," which was in evidence, to "apartment," which was not. The significance of the latter, according to Griffin, is that Dixon's referring to an apartment would have been a clearer expression of his intent. There is no need, however, to impute Dixon's intent to Griffin because the jury reasonably could have inferred that Griffin intended to commit theft when he entered Alicia Shaw's apartment the second time.

(b) Law — aiding and abetting. Griffin complains that the prosecutor told the jurors, contrary to established law, that his mere association with Dixon was sufficient to establish his guilt of felony murder. He identifies the following statements:

"[Dixon] had the reasons to do this. But the defendant went along. The defendant aided Wallace Dixon for, you see, ladies and gentlemen, when you go into a place like this when you're going to commit a crime[,] is it easier to do it alone or with someone else[?] We know this defendant is the one who crawled through the window and cut himself the night during the first burglary. It's easier to do it with a group. That encourages bad behavior, that's common sense.

"Would Wallace Dixon have done this alone had the defendant not helped him?

We'll never know."

"No one forced him to enter that apartment to help Wallace Dixon, to aid, to encourage, to help Wallace Dixon. No one made him do it, it was his choice to do so. And regardless of the extent of his participation, you heard him start out with the police denying any participation and ultimately he got to the point where he ...