State v. Johnson-Howell

• Decision Date: 16 September 1994
• Docket Number: A,No. 68361,JOHNSON-HOWEL,68361
• Citation: 255 Kan. 928,881 P.2d 1288
• Parties: STATE of Kansas, Appellee, v. Faye A.ppellant.
• Court: Kansas Supreme Court

Page 1288

881 P.2d 1288

255 Kan. 928

STATE of Kansas, Appellee, v. Faye A. JOHNSON-HOWELL, Appellant.

No. 68361.

Supreme Court of Kansas.

Sept. 16, 1994.

Syllabus by the Court

1. Witnesses have a state and federal constitutional right against compelled self-incrimination. Except as otherwise provided by statute, every person is qualified to be a witness. No person has a privilege to refuse to be a witness or to refuse to disclose any matter, and no person has a privilege that another shall not be a witness or shall not disclose any matter. K.S.A. 60-407(a), (b), (d), and (e).

2. Subject to K.S.A. 60-423 and K.S.A. 60-437, every natural person has a privilege, which he or she may claim, to refuse to disclose in an action or to a public official of this state or the United States or any other state or any governmental agency or division thereof any matter that will incriminate such person. K.S.A. 60-425. A matter will incriminate a person if it constitutes, or forms an essential part of or, taken in connection with other matters disclosed, is a basis for a reasonable inference of such a violation of the laws of this state as to subject the person to liability to punishment therefor, unless he or she has become for any reason permanently immune from punishment for such violation. K.S.A. 60-424.

3. The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against the accused. This constitutional provision, however, does not preclude the admission of all hearsay evidence. The courts should attempt to harmonize the goal of the Confrontation Clause--placing limits on the kind of evidence that may be received against a defendant--with a societal interest in accurate fact-finding, which may require consideration of out-of-court statements. When the Confrontation Clause becomes an issue as to the unavailability of a witness, whether the witness is unavailable is a question of law.

4. To obtain admission of hearsay statements, the State must either produce the witness or demonstrate that the witness is unavailable, and then the court must find the statements bear sufficient indicia of reliability or show particularized guarantees of trustworthiness.

5. Except as otherwise provided by the Kansas Constitution, the federal Constitution, and our state statutes, every person is qualified to be a witness. A person who would otherwise have a privilege to refuse to disclose a matter has no such privilege as to that matter if the judge finds that such person, without coercion, or without any trickery, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter. K.S.A. 60-437(b).

6. A witness' refusal to testify in a criminal trial is not a recognized ground for unavailability of the witness in this state.

7. An error of constitutional magnitude is serious and may not be held to be harmless unless an appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before an appellate court may declare the error harmless, it must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.

8. 18 U.S.C. § 2515 (1988) of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III) prohibits, inter alia, the use of evidence in state court criminal proceedings if the evidence was obtained through unauthorized interception of an oral communication in violation of Title III. The unauthorized interception must be intentional. The party claiming a violation of Title III has the burden to show such violation.

9. The cumulative effect rule is that trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.

10. The cumulative effect rule does not apply where the evidence is overwhelming against the defendant.

Benjamin C. Wood, Sp. Appellate Defender, Lawrence, argued the cause, and was on the brief, for appellant.

W. Scott Toth, Asst. Dist. Atty., argued the cause, and Steven J. Obermeier, Asst. Dist. Atty., Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

LOCKETT, Justice:

Faye Johnson-Howell appeals her convictions of one count of first-degree murder, K.S.A. 1989 Supp. 21-3401, and one count of conspiracy to commit murder, K.S.A. 1989 Supp. 21-3401 and K.S.A. 21-3302. Defendant claims (1) she was denied her state and federal constitutional rights to confront a nontestifying codefendant; (2) illegal wiretap information was admitted; (3) she was denied the right to present evidence; and (4) she did not receive a fair trial because of cumulative errors.

Johnson-Howell was charged with (1) aiding and abetting and (2) conspiring with LaJuan Clemons to commit first-degree murder of Charles Howell, her estranged husband. See State v. Clemons, 251 Kan. 473, 836 P.2d 1147 (1992), where LaJuan Clemons' conviction of the first-degree murder of Howell was affirmed.

Johnson-Howell and Howell had separated. While separated, Johnson-Howell had plotted over the telephone with others to kill Howell; Howell had recorded the telephone conversations. When he informed the police of the plot, things "cooled down." The couple's divorce action was to be heard the day Howell was murdered. Howell was shot twice in the head in Olathe on February 8, 1990. An autopsy on Howell revealed that he had suffered two shotgun wounds. One wound was caused by a shotgun slug and the second by pellets from a shotgun blast.

At Johnson-Howell's trial, Bobbi Bolton, Howell's girlfriend, with whom he had been living, testified that she heard the gunshots, went outside, and found Howell's body. She called 911 and told the dispatcher that Howell had been shot. Bolton also told the dispatcher that she had observed a light blue four-door small to mid-size car, possibly a rental car, with red license plates, located on the street behind her house in an area which was under development. At trial Bolton identified a picture of a System One rental car as the car she saw the day of the homicide. On cross-examination, she admitted she had previously told the police that she thought the blue car was a Chevy Nova.

During the murder investigation, two System One employees informed investigating officers that Johnson-Howell had rented a blue Dodge Spirit automobile. Johnson-Howell, accompanied by Clemons, had picked up the car on February 7, 1990, and they had returned the car about "11:30 in the afternoon." The "System One" bumper sticker had been removed. It was not unusual for cars to be returned with the bumper stickers removed. The police obtained a search warrant and seized the car at noon the same day. A search of the car led to the discovery of a set of keys in the car and a fingerprint on the trunk. The car had mud on the driver's floorboard area. It was later determined the keys belonged to Clemons, and it was his fingerprint on the trunk of the rental car. The tires on the rental car matched tire tracks found where Bolton saw the rental car parked. A police officer who had responded to Bolton's 911 call testified that as he approached the area, he observed a car leaving the area that was similar to a car which had been rented by the defendant.

Julius Olubo, an employee at Johnson-Howell's insurance agency, testified that on the day of the homicide Clemons showed up at the insurance agency at about 8:45 a.m. Olubo testified Clemons was driving a car similar to the rental car identified by other witnesses.

Detectives from Olathe interviewed Clemons at his apartment on February 9, 1990, at approximately 12:30 a.m. At the time Clemons was being interviewed, there were numerous other possible suspects in the homicide, and 11 detectives working throughout the metropolitan area were following leads. Initially, Clemons identified himself as Nelson Brown and advised the detectives that he knew LaJuan Clemons but had not seen him for at least one day. Eventually, he admitted he was LaJuan Clemons. Clemons told the officers that he and Johnson-Howell were lovers. On February 11, 1990, police executed a search warrant at Clemons' residence and recovered two shotgun shells similar to the shells used to kill Howell. The search of Clemons' bedroom also yielded an answering machine stolen from Bolton's apartment in June 1989. On February 15, 1990, Clemons was arrested and charged with murder.

An expert in military equipment who had been Clemons' superior in the military testified that footprints found leading to and away from the homicide scene were made by a particular kind of boot Clemons could have purchased while in the Army reserves. When Clemons' apartment was searched, a variety of military clothing was found, but no boots.

A police officer interviewed Max Howell, the young son of Howell and Johnson-Howell, several days after the homicide. The day of the homicide Max, who was living with his mother, called his father at home at about 7:00 a.m. The police believed that the son had been used to determine if his father was home and not at work. Bolton testified that she heard Howell answer the phone and say, " 'If you thought I was at work, why did you call?' " Howell worked the 6:00 a.m. to 2:30 p.m. shift at his job. Howell told Bolton the call was from Max. Bolton testified Max had never called at that time in the year she had been living with Howell. Max testified his mother knew he was calling his father but she did not tell him to do so.

In a May 1989 phone conversation recorded by Howell, Johnson-Howell told Frank Parker, a friend and former employee of hers, that she wanted Howell dead. She told Parker she was plotting with a former...