State v. Longoria

• Citation: 343 P.3d 1128
• Decision Date: 06 March 2015
• Docket Number: No. 108,333.,108,333.
• Parties: STATE of Kansas, Appellee, v. Adam J. LONGORIA, Appellant.
• Court: Kansas Supreme Court

343 P.3d 1128

STATE of Kansas, Appellee,
v.
Adam J. LONGORIA, Appellant.

No. 108,333.

Supreme Court of Kansas.

March 6, 2015.

Affirmed.

Johnson, J., concurred in the result and filed opinion.

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Syllabus by the Court

1. A constitutional claim that pretrial publicity requires a change of venue can

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arise in two contexts: presumed prejudice and actual prejudice.

2. Courts should presume prejudice requiring a change of venue, even before voir dire, when pretrial publicity is so pervasive and prejudicial that a court cannot expect to find an unbiased jury pool in the community.

3. In evaluating a claim that presumed prejudice requires a change of venue, a court reviews the seven factors enunciated in Skilling v. United States, 561 U.S. 358, 381–85, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010):(1) media interference with courtroom proceedings; (2) the magnitude and tone of the coverage; (3) the size and characteristics of the community in which the crime occurred; (4) the amount of time that elapsed between the crime and the trial; (5) the jury's verdict; (6) the impact of the crime on the community; and (7) the effect, if any, of a codefendant's publicized decision to plead guilty.

4. Defendants face a high burden under the Skilling test—generally a defendant can obtain a change of venue only upon showing that publicity has displaced the judicial process entirely or that the courtroom proceedings more resemble a circus or a lynch mob.

5. An appellate court reviewing a trial court's decision on a motion to change venue because of presumed prejudice applies a mixed standard of review, examining the trial court's findings of fact for substantial competent evidence and the ultimate legal conclusion drawn from the facts—whether to presume prejudice—de novo.

6. When a party fails to object to the adequacy of the trial court's factual findings relating to a motion to change venue for presumed prejudice, an appellate court assumes that the trial court made the findings necessary to support the court's decision. The appellate court then conducts a de novo review of the Skilling factors, rendering a legal conclusion as to whether prejudice should be presumed.

7. The Sixth Amendment to the United States Constitution does not demand juror ignorance, and a party does not establish presumed prejudice by simply proving there was extensive media coverage.

8. Under the facts of this case, the defendant supported a motion to change venue by establishing extensive media coverage and a high level of community familiarity with the case. But the defendant failed to present evidence of a lynch-mob mentality or other circumstances raising a presumption of prejudice that would require a change of venue.

9. Because actual prejudice is established when voir dire reveals a community-wide sentiment against the defendant, a defendant must request a change of venue after the completion of voir dire to preserve a claim of actual prejudice for appellate review. Absent preservation, the defendant must explain in an appellate brief why the claim should be considered for the first time on appeal.

10. K.S.A. 22–2616(1) provides that a trial court should transfer venue when the defendant shows so great a prejudice against the defendant that he or she cannot obtain a fair and impartial trial in the county where the action is pending. The defendant has the burden to show prejudice in the community significant enough that there is a reasonable certainty he or she cannot obtain a fair trial without a venue change.

11. An appellate court reviews a trial court's decision on a motion to change venue pursuant to K.S.A. 22–2616(1) for an abuse of discretion.

12. An abuse of discretion can occur in one of three ways—when the trial court makes an error of law; bases its decision on facts not supported by the evidence; or makes an arbitrary, fanciful, or unreasonable decision

13. Factors to be considered on whether a venue change is necessary under K.S.A. 22–2616(1) include: (1) the particular degree to which the publicity circulated throughout the community; (2) the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; (3) the length of time which elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the ease encountered in the selection of the jury; (5) the familiarity with the publicity complained of and its resultant effects, if any, upon the

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prospective jurors or the trial jurors; (6) the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; (7) the connection of government officials with the release of the publicity; (8) the severity of the offense charged; and (9) the particular size of the area from which the venire is drawn.

14. Under the facts of this case, where some factors weighed in favor of transferring venue under K.S.A. 22–2616(1), some weighed against, and the record does not reveal any difficulties in selecting a jury, the trial court did not abuse its discretion when it denied a motion to change venue.

15. When a party fails to object to or request a jury instruction at trial, K.S.A. 22–3414(3) limits appellate review to a determination of whether the instruction was clearly erroneous. The application of this standard consists of two parts. First, an appellate court must determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record. Second, if the trial court erred, the appellate court must conduct a reversibility inquiry. For the error to be reversible, the appellate court must be firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.

16. Under K.S.A.2013 Supp. 21–5402(d), felony murder is not a lesser included offense of capital murder.

17. Retroactive application of K.S.A.2013 Supp. 21–5402(d)'s amendments excluding felony murder as a lesser included offense of capital murder in a capital case does not violate the constitutional prohibition against ex post facto laws.

18. A jury's verdict of premeditated murder necessarily establishes two factual elements—premeditation and an intent to cause death—that are legally inconsistent with unintentional but reckless second-degree murder. Where substantial competent evidence supports the verdict of premeditated murder and the jury did not convict the defendant on the lesser included offense of intentional second-degree murder, a trial court's failure to instruct on unintentional but reckless second-degree murder can be deemed harmless.

19. When considering relevance, courts must assess both the evidence's materiality and its probative nature. An appellate court reviews materiality de novo and the probative nature of evidence for an abuse of discretion.

20. In a capital murder case where the State must prove a victim's identity, a photograph of the victim is probative.

21. With few exceptions, it is an established rule of law that an admission by a defendant does not prevent the State from presenting separate and independent proof of the fact admitted.

22. If a party objects to evidence on the grounds it is repetitious, gruesome, or inflammatory, i.e., unduly prejudicial, an appellate court applies an abuse of discretion standard of review.

23. Evidence is cumulative when it is of the same kind and on the same point, and it is within the trial court's discretion to admit or exclude it.

24. A party cannot object at trial on one ground and then argue a different ground on appeal.

25. A presumptive prejudice rule— i.e., a rule that would lead to an automatic reversal—does not apply when a jury is shown a video of an arrest and the jury is informed that the handcuffing of a suspect is standard procedure. Instead, a defendant claiming the video is unduly prejudicial because it shows the defendant in handcuffs must establish that the trial court abused its discretion in determining that the probative value of the video outweighed its prejudicial impact.

26. Prosecutors may use sarcasm as an occasional rhetorical device. But we caution that it cannot be used in ways that distract the jury from its charge, demean the adversarial trial process, or become unprofessional to the point of jeopardizing a verdict. Sarcasm,

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when appropriate, should be thoughtfully tailored to specific arguments and evidence; sarcasm should not set the tone of the prosecutor's entire argument or rebuttal.

27. Allegations of juror misconduct trigger a progressive two-step inquiry to determine if either a mistrial or new trial is warranted: (1) whether juror misconduct occurred, and (2) if so, whether the misconduct substantially prejudiced the right to a fair trial, meaning whether the State can show beyond a reasonable doubt that the misconduct did not affect the trial's outcome. An appellate court reviews the trial court's determination of these two issues under an abuse of discretion standard.

28. Faced with an allegation that a juror held an inappropriate conversation outside of trial, a trial court should usually question the juror allegedly involved in the misconduct.

29. After a trial court makes factual findings and draws legal conclusions regarding whether a juror committed misconduct by discussing the case with a third party, an appellate court gives a high degree of deference to the trial court's findings concerning the credibility of witnesses and the perceived impact of the allegedly prejudicial event.

30. When a criminal defendant challenges the sufficiency of evidence, an appellate court must review all the evidence in the light most favorable to the prosecution and...