State v. Liles

• Decision Date: 16 July 2021
• Docket Number: No. 121,459,121,459
• Citation: 490 P.3d 1206
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Kora L. LILES, Appellant.

490 P.3d 1206

STATE of Kansas, Appellee,

v.Kora L. LILES, Appellant.

No. 121,459

Supreme Court of Kansas.

Opinion filed July 16, 2021

Meryl Carver-Allmond, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

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

Kora L. Liles appeals her convictions and sentences stemming from three murders at her Topeka home. She argues: (1) the prosecutor misstated the law by telling the jury to use the same caution in considering her testimony as her accomplices who testified for the prosecution; (2) the district court erred by refusing to instruct the jury to view the accomplices' testimony with caution because they were receiving benefits from the State; (3) the cumulative effect of these two alleged errors on her fair trial rights requires reversal; and (4) the State breached an unwritten, postconviction agreement to make a favorable sentencing recommendation if she testified in the trial of other participants in the crimes. We reject each challenge and affirm.

We hold the prosecutor's argument on Liles' credibility stayed within permissible bounds, and that the court properly refused to modify the accomplice jury instruction. These rulings make a cumulative error analysis inappropriate. As to sentencing, we hold Liles failed to make an adequate record concerning the alleged agreement to allow meaningful review.

FACTUAL AND PROCEDURAL BACKGROUND

Luke Davis, Nicole Fisher, and Matthew Leavitt were murdered the night of March 11-12, 2017, at Liles' house. The controverted chain of events alleged and the trial evidence establishing her crimes of conviction are largely irrelevant to the issues now raised on appeal. It is enough to know the victims died following hours of confrontation and violence. Davis eventually died after being strangled with an electric fan cord used as a ligature. Fisher was suffocated to death with a plastic bag placed over her head. And Leavitt died from strangulation when his neck was held between his killer's legs during a struggle. There was evidence Liles had accused Leavitt of a sexual impropriety toward her in the weeks preceding the murders.

The State charged Liles, her then-boyfriend Joseph Lowry, her ex-husband Brian Flowers, and Joseph Krahn with the murders and related crimes. The State also charged Shane Mays and Richard Folsom, who both reached cooperation agreements for their testimony.

A grand jury indicted Liles on 11 charges: three counts of felony murder with two alternative underlying felonies, i.e., aggravated kidnapping or aggravated assault; three counts of aggravated assault with a deadly weapon; three counts of aggravated kidnapping; one count of possessing methamphetamine with intent to distribute; and one count of unlawful use of drug paraphernalia. A jury convicted her on all counts.

The district court imposed three hard 25 sentences for the felony-murder convictions, a 226-month sentence for one of the aggravated kidnapping convictions, 165-month sentences for each of the remaining aggravated kidnapping convictions, three 13-month sentences for the aggravated assault convictions, and a 98-month sentence for the possession conviction. The court ran all these sentences consecutive. The court also imposed a concurrent one-year sentence for the paraphernalia conviction. This is Liles' direct appeal. Jurisdiction is proper. K.S.A. 2020 Supp. 22-3601(b)(3), (4).

PROSECUTORIAL ERROR

Liles argues the prosecutor misstated the law during closing arguments by telling the jury a cautionary instruction given with respect to accomplice testimony applied to Liles' testimony as well. We reject this because the prosecutor did not make the legal assertion Liles claims. The prosecutor made a permissible statement about credibility.

Additional facts

The district court gave the jury an instruction about accomplice testimony because Mays and Folsom testified. Instruction 8 stated: "An accomplice witness is one who testifies that he was involved in the commission of a crime with which the defendant is charged. You should consider with caution the testimony of an accomplice ." (Emphasis added.)

During closing arguments, defense counsel argued the jurors "most importantly ... should consider with caution, the testimony of an accomplice." He explained an accomplice might seek to obtain immunity or a lighter sentence by trying to shift blame to someone else, or might simply wish to drag someone else down for malice. He pointed out Mays negotiated a plea bargain for lesser charges in exchange for his testimony. On rebuttal, the prosecutor addressed this, telling the jury,

"Now, I want to go on to Instruction Number 8, because this is where we talk about the credibility of the witnesses. [Defense counsel] talked about this, and he says the law requires you, or somewhat suggested the law requires you to disbelieve the testimony of an accomplice. That's not what the instruction says. It says you should consider with caution the testimony of an accomplice. And that makes sense, because somebody who's perhaps getting a benefit for their testimony ... you might want to consider with caution. That's sensible."

The prosecutor then made the following comment Liles now challenges:

"That also applies to Ms. Liles, because she has a bias in her testimony . She has a bias to mislead you, to make you think things are true that are not true, so that you will think that there's a reasonable doubt as to her guilt, because in essence, in broad strokes, what is it that Ms. Liles is saying here today? What is her account of what happened? I was in this house, and all these other people started to do the things, and I had nothing to do with it....

"That testimony, if you look at all the other evidence in the case, is simply not believable, and it is nowhere near believable and credible when [you] compare it to the testimony of [sic ] the prior statement of Shane Mays. This is true for a number of reasons." (Emphasis added.)

The prosecutor argued Liles' testimony was internally inconsistent, giving examples. He asserted there was no explanation for the night's events other than Liles being upset with Leavitt. He argued Liles admitted her involvement but consistently minimized her participation. He pointed out Liles claimed to be scared of Lowry, but he was the one who told her to establish an alibi, which she tried to do by leaving and being seen elsewhere. And the prosecutor pointed out that while Liles claimed the others threatened her children, she never went to look for or take care of them. He argued the most reasonable explanation for all this was that Liles was the "boss" and the others were doing her "dirty work." He also argued Mays' testimony was more believable because he was "putting his own neck in the noose" by admitting his intent to kill Fisher.

Standard of review

A court follows a two-step analysis to address a prosecutorial error claim. First, it decides whether an error occurred. For this first step, if the claim relates to something the prosecutor said, the court looks at the statement complained about to decide if it falls outside the wide latitude afforded the prosecutor in conducting the State's case and attempting to obtain a conviction in a manner that does not offend the defendant's fair trial rights under the Fourteenth Amendment. A defendant can establish the first prong by demonstrating the prosecutor misstated the law or argued factual assertions with no evidentiary foundation. If the court finds error, it takes the second step and considers prejudice to determine whether that error was harmless. State v. Vonachen , 312 Kan. 451, 467, 476 P.3d 774 (2020).

Discussion

Prosecutors may point out inconsistencies in a defendant's statements and argue the evidence reflecting poorly on the defendant's credibility. But in doing so, they may not accuse a defendant of lying. State v. Haygood , 308 Kan. 1387, 1402, 430 P.3d 11 (2018). Here, the prosecutor's argument was consistent with this limitation by pointing out potential bias affecting Liles' testimony and making an evidence-based argument as to why other testimony reflected poorly on her credibility. The prosecutor noted Liles stood to benefit from skewed testimony because it increased her acquittal chances. And he detailed why other evidence undermined Liles' testimony that she was merely an innocent bystander.

Liles concedes prosecutors may argue witness bias. But she claims the prosecutor in this instance linked the accomplice instruction directly to her testimony. This, she argues, would be an error of law. The State contends Liles mischaracterizes the prosecutor's comments. We agree with the State. Rather than tying the accomplice instruction to Liles, the prosecutor simply argued the same underlying reasons for that instruction about self-serving accomplices applied to Liles' testimony as the defendant.

Liles contends a misstatement occurred because the prosecutor violated a " ‘constitutional limit on a court's ability to comment on a defendant's credibility in a jury instruction,’ " which she argues must be done in a "neutral or balanced" manner without " ‘singl[ing] out the defendant as not to be believed.’ " She relies on State v. Land , 14 Kan. App. 2d 515, 794 P.2d 668 (1990). There, the Court of Appeals held it was error for the trial court to give an accomplice testimony instruction, like the one given in Liles' case, when the defendant was the only crime participant testifying. See 14 Kan. App. 2d at 519, 794 P.2d 668 ("The instruction in this case referred to accomplice testimony. But, Land was testifying both as an accomplice and as a defendant."). That is not what happened in Liles' case.

Land is distinguishable mainly because Liles does not challenge an instruction from the court. And even if the prosecutor's...