State v. Lewis

• Citation: 299 Kan. 828,326 P.3d 387
• Decision Date: 13 June 2014
• Docket Number: No. 106,093.,106,093.
• Parties: STATE of Kansas, Appellee, v. Tony Tremayne LEWIS, Appellant.
• Court: United States State Supreme Court of Kansas

299 Kan. 828

326 P.3d 387

STATE of Kansas, Appellee,

v.Tony Tremayne LEWIS, Appellant.

No. 106,093.

Supreme Court of Kansas.

June 13, 2014.

Syllabus by the Court

1. The safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966), are triggered only when an accused is (a) in custody and (b) subject to interrogation. Custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom in any significant way. A custodial interrogation is distinguished from an investigatory interrogation, which occurs as a routine part of the fact-finding process before the investigation reaches the accusatory stage.

2. Factors to consider in determining if an interrogation is investigative or custodial include: (a) the interrogation's time and place; (b) its duration; (c) the number of law enforcement officers present; (d) the conduct of the officer and the person questioned; (e) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (f) whether the person is being questioned as a suspect or a witness; (g) whether the person questioned was escorted by officers to the interrogation location or arrived under his or her own power; and (h) the interrogation's result, e.g., whether the person was allowed to leave, was detained further, or was arrested after the interrogation. No single factor outweighs another, nor do the factors bear equal weight. Every case must be analyzed on its own particular facts.

3. An appellate court's review of a trial court's determination whether an interrogation was custodial has two distinct inquiries. Under the first, the appellate court determines the circumstances surrounding the interrogation, employing a substantial competent evidence standard of review. In determining if there is substantial competent evidence supporting the existence of the circumstances found by the trial court, an appellate court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. The second inquiry employs a de novo standard of review to determine whether, under the totality of those circumstances, a reasonable person would have felt free to terminate the interrogation and disengage from the encounter.

4. The district court should follow a two-step process in determining whether an eyewitness identification is admissible evidence. The first step examines whether the police procedure used to obtain the original out-of-court identification was unnecessarily suggestive. If so, the analysis moves to the second step to consider whether there was a substantial likelihood of misidentification under the totality of the circumstances.

5. An appellate court reviews a challenge to an eyewitness identification as a due process determination involving a mixed question of law and fact. It applies a substantial competent evidence standard to review the factual underpinnings of a trial court's decision to admit or suppress the eyewitness identification and applies a de novo standard to the ultimate legal conclusion drawn from those facts.

6. An appellate court reviews a prosecutorial misconduct claim alleging improper comments using a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing evidence. If so, there was misconduct. Second, if misconduct is found, the appellate court determines whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial.

7. Prosecutors are given wide latitude in the language and manner of presentation during closing arguments, but the arguments must remain consistent with the evidence. If they are not, the first prong of the prosecutorial misconduct test is met and on appellate review the court must consider whether the misstatement prejudiced the jury against the defendant and denied the defendant a fair trial.

8. Appellate courts consider three factors in determining when prosecutorial misconduct so prejudiced a jury against a defendant that a new trial should be granted: (a) whether the misconduct was gross and flagrant; (b) whether the misconduct showed ill will on the prosecutor's part; and (c) whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the jurors' minds. While none of these factors individually controls and before the third factor can override the first two, an appellate court must be able to say the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), have been met.

9. When both constitutional and nonconstitutional errors clearly arise from the same acts and omissions, an appellate court begins with a harmlessness analysis of the constitutional error. If the constitutional error is reversible, an appellate court need not analyze whether the lower standard for harmlessness under K.S.A. 60–261 also has been met. Under both standards, the party benefiting from the error bears the burden of demonstrating harmlessness.

10. K.S.A. 22–3414(3) establishes a preservation rule for jury instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.

11. The clearly erroneous analysis under K.S.A. 22–3414(3) is not a standard of review, i.e., a framework for determining whether error occurred. Rather, it supplies a basis for determining if an error requires reversal.

12. The preservation rule for clearly erroneous error established by K.S.A. 22–3414(3) applies to jury questions propounded during deliberations.

13. In deciding whether error occurred, a district court's response to a mid-deliberation jury question is reviewed for abuse of discretion.

14. Under K.S.A.2009 Supp. K.S.A. 21–4642(c)(1), an aggravated habitual sex offender is a person who, on and after July 1, 2006, has been convicted in this state of a sexually violent crime and prior to the conviction of that sexually violent felony, has been convicted on at least two prior conviction events of any sexually violent crime.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant, and Tony T. Lewis, appellant pro se filed a supplemental brief.

Barry R. Wilkerson, county attorney, argued the cause, and Barry K. Disney, assistant county attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

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

Tony T. Lewis was charged with multiple offenses following a series of attacks against three women during April and May of 2009 in Riley County. The general pattern for these crimes was that each victim was unknowingly followed to her apartment in the early morning hours after being out for the evening. Two women were raped and sodomized, while the third escaped after a struggle. Lewis appeals his convictions for rape, aggravated criminal sodomy, burglary, kidnapping, aggravated assault, aggravated kidnapping, and aggravated robbery. He was sentenced to five life imprisonment sentences as an aggravated habitual sex offender under K.S.A.2009 Supp. 21–4642 based on his prior convictions for sexually violent crimes in Geary County.

Lewis advances numerous issues, which we have reordered for clarity: (1) failure to suppress his statements to police; (2) failure to suppress pretrial and in-court victim identifications; (3) denial of a continuance; (4) prosecutorial misconduct during closing argument; (5) error responding to a mid-deliberation jury inquiry; (6) insufficient evidence to support alleged alternative means under the rape statute; (7) cumulative trial error; and (8) error sentencing him as an aggravated habitual sex offender.

We affirm his convictions, but vacate his five life sentences and remand for resentencing because the aggravated habitual sex offenderstatute, which was the basis for those sentences, did not apply to him. See State v. Trautloff, 289 Kan. 793, 798, 217 P.3d 15 (2009) (aggravated habitual sex offender defined under K.S.A.2009 Supp. 21–4642 as a person convicted on and after July 1, 2006, of a sexually violent crime who has already been convicted on at least two prior conviction events of any sexually violent crime). Additional facts are described as applicable to each issue.

Suppression of Statements Made to Police

Lewis had an encounter with a Riley County police officer at about midnight on May 28, 2009. It began when the officer observed a white Dodge Avenger blocking an apartment complex driveway. The vehicle matched a description the officer had previously been advised to watch for. The officer saw a man exit the car, so the officer left his patrol vehicle and the two spoke. Lewis identified himself and said he was lost. Lewis said he was walking away from his car because he did not have cell phone service and was trying to locate another apartment complex. The officer gave Lewis directions, but noticed Lewis did not follow them as he drove away.

Later that day, a Riley County police detective learned about the encounter and wanted to follow up with Lewis, who was on active military duty at the Fort Riley Military Reservation. The detective arranged for an interview at Fort Riley's Criminal...