State v. King

• Citation: 204 P.3d 585
• Decision Date: 27 March 2009
• Docket Number: No. 95,088.,95,088.
• Parties: STATE of Kansas, Appellee, v. William Bradley KING, Appellant.
• Court: United States State Supreme Court of Kansas

204 P.3d 585

STATE of Kansas, Appellee, v. William Bradley KING, Appellant.

No. 95,088.

Supreme Court of Kansas.

March 27, 2009.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of the same office, was with him on the briefs for appellant.

Brian P. Duncan, assistant county attorney, argued the cause, and Steve Stockard, assistant county attorney, John Gutierrez, county attorney, and Paul Morrison, attorney general, and Phill Kline, former attorney general, were with him on the briefs for appellee.

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

William Bradley King was convicted of rape and aggravated criminal sodomy. During the trial, the prosecutor asked King about his continued silence after receiving Miranda warnings. King did not object to these questions and attempts to raise the alleged violation of Doyle v. Ohio, 426 U.S 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), on appeal based upon a claim of prosecutorial misconduct. The Court of Appeals held that in the absence of a contemporaneous objection under K.S.A. 60-404, King's Doyle claim was not preserved for review. State v. King, No. 95,088, ___ Kan. ___, 2007 WL 2043565, unpublished opinion filed July 13, 2007. We granted King's petition for review on this issue and on a question involving the requirements for ordering restitution pursuant to K.S.A. 21-4603d(b)(1).

In granting King's review on the Doyle issue, we requested and the parties filed supplemental briefing on the following two questions:

"(1) Whether the contemporaneous objection rule, which has been applied to bar consideration of alleged violations of the rule of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), can be avoided when the alleged violation is subject to characterization as prosecutorial misconduct.

"(2) Whether prosecutorial misconduct analysis should distinguish between behavior involving admission or exclusion of evidence (e.g., questioning of witnesses on topics covered by a previously granted motion in limine or on a defendant's invocation of his [or] her right to silence or right to counsel) and behavior involving a prosecutor's direct communication with members of the jury (e.g., voir dire, opening statement, closing argument)." State v. King, Order of the Kansas Supreme Court (No. 95,088, issued November 14, 2007).

These questions were prompted by this court's previous recognition of a "potential conflict" between our prosecutorial misconduct analysis and K.S.A. 60-404 in the context of potential Doyle violations. See State v. Hernandez, 284 Kan. 74, 79, 159 P.3d 950 (2007). Today, we clarify that a contemporaneous objection under K.S.A. 60-404 must be lodged by a defendant at trial in order to preserve a Doyle issue for appellate review when the alleged error arises during a prosecutor's questioning of a witness.

FACTS

On May 3, 2003, L.E. and her aunt drove from Pittsburg, Kansas, to Joplin, Missouri, because L.E. had just broken up with her boyfriend. In Joplin, the two women spent time drinking at a bar until around 1 a.m. the following day; they then went to a local juice bar. There, L.E. met King, who agreed to drive her back to Pittsburg.

L.E. testified that on the way to Pittsburg, King stopped his truck on a deserted country road near Lamar, Missouri. L.E. explained that King removed L.E.'s clothing and engaged in sexual intercourse with her, although she repeatedly "[told] him no." L.E. stated that she did not physically resist King because she "was scared" because she "didn't know where to go" and "didn't know where [she] was." L.E. also testified that when they were finished having intercourse, King grabbed her by the hair and forced her to perform oral sex on him. L.E. testified to three incidents of attempted or completed intercourse and two incidents of forced oral sex.

According to L.E.'s testimony, after these incidents took place, King told her to put her clothes back on so he could take her home. She stated that King acted regretful and "kept apologizing for raping" her. L.E. also stated that King "told [her] that he had been in prison before and that he was not going back for nothing not even this."

After the truck crossed the state line into Kansas, L.E. testified that King "stopped and . . . said he was going to finish what he started." L.E.'s testimony at this point described a more violent repetition of the earlier sexual assaults in Missouri. According to L.E., King bit her lips and neck and pulled her hair while they had intercourse; he then forced her to perform oral sex on him outside the truck while he continued to hold her hair.

L.E. explained that King got in the truck and drove away when L.E. drew the attention of another vehicle on the road, and L.E. watched as King drove back toward Missouri. She then went to a nearby home, knocked on the door, and informed the residents that she had been raped. Roughly 4 hours passed between the time that King and L.E. left Joplin and the time that the resident of the house called 911 to report the incident.

L.E. was examined by a sexual assault nurse in Pittsburg; this examination showed bruises, reddened areas, or scratches on L.E.'s shoulder, arm, abdomen, thigh, and feet. The nurse noted that L.E. had a "copious amount of hair falling out" and that she had a bald spot.

Steven Weston, chief deputy of the Barton County, Missouri, sheriff's department, was dispatched to Pittsburg on the morning of May 4, 2003, because "there had been an offense . . . or attempt . . . in Missouri, and then also again in Kansas." Deputy Weston testified at trial that although he interviewed L.E., he "limited [his] questions just to what had occurred on the Missouri side of the border."

Deputy Weston took custody of L.E.'s clothing, which was tested at a crime lab in Joplin. The rape kit associated with L.E.'s case was tested in Missouri and Louisiana. The final results of these tests were obtained in May 2004. An analysis of the vaginal swab indicated DNA from both King and L.E.'s former boyfriend.

Deputy Weston then located King at his place of work. King indicated that he had been with L.E. on the night in question and agreed to come to the sheriff's department later to discuss the incident. Later that day, King voluntarily appeared at the Barton County sheriff's department, signed a waiver of his Miranda rights, and provided Deputy Weston with a handwritten statement. The deputy testified at trial that, in general, King's version of the events matched L.E.'s version "almost word for word with the exception of he left out any mention of any kind of sexual contact." The deputy noted that other than this exception, King provided "pretty much the same story" as L.E. King's written statement was admitted into evidence but was not made part of the record on appeal.

In his trial testimony, King stated that he offered L.E. a ride home from Joplin. Once in his truck they returned to the home of his parents—a farm near Lamar, Missouri, where King also lived—to obtain gas money. He testified that he and L.E. had consensual sexual intercourse in his vehicle a short distance from his parents' house.

King explained that after he retrieved the money from the house near Lamar, he continued driving toward Pittsburg. King stated that he told L.E. while they were driving that he did not have a girlfriend but would "get together and have sex" two or three times per week with the mother of his son. King testified that L.E. changed at this point, stating "[i]t was like Jekyll and Hyde. She [L.E.] said I used her for sex" and told King to pull the truck over so "she could get some air." According to King, this occurred just inside the Kansas state line.

King testified that L.E. remained "just kind of like Jekyll and Hyde," so he said "forget this and . . . left her there." King explained that he went to Pittsburg to put gasoline in his truck and then returned because he "kind of felt bad and . . . was going to pick her up." He did not find L.E., but he "knew she had her cell phone . . . so [he] just went home."

The jury convicted King of rape and aggravated criminal sodomy. The court sentenced him to 221 months' imprisonment for the rape conviction and 109 months' imprisonment for the sodomy conviction and ordered that the two sentences run concurrently. The court also ordered King to pay restitution in the amount of $317 to L.E. and $1,210.07 to the Crime Victims Compensation Board.

King appealed, claiming reversible error in (1) the admission of prior crimes evidence without a limiting instruction; (2) prosecutorial misconduct; (3) cumulative error; (4) ordering him to pay restitution without making findings on the record regarding his ability to pay these amounts; (5) ordering him to reimburse the Board of Indigents' Defense Services (BIDS) for attorney fees without making findings on the record regarding his ability to pay; and (6) using his prior criminal convictions to enhance his criminal history score without submitting these to a jury. The Court of Appeals affirmed the defendant's convictions and sentence and remanded the case to the district court for a determination as to King's ability to pay BIDS fees in light of this court's decision in State v. Robinson, 281 Kan. 538, 548, 132 P.3d 934 (2006). King petitioned this court for review of all issues save the BIDS claim.

We granted review on the questions of prosecutorial misconduct and restitution and ordered supplemental briefing on the question of whether Doyle issues raised in the context of prosecutorial misconduct require a contemporaneous objection to be preserved for review. Additional facts necessary for resolution of these issues are set forth in this opinion.

(1) MAY A VIOLATION OF DOYLE V. OHIO, 426 U.S. 610, 96 S.CT. 2240, 49 L.ED.2D 91, (1976), BE RAISED ON APPEAL THROUGH A CLAIM OF PROSECUTORIAL MISCONDUCT ABSENT A CONTEMPORANEOUS OBJECTION REQUIRED BY K.S.A. 60-404?

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