State v. Mccaslin, 99,628.

CourtUnited States State Supreme Court of Kansas
Citation245 P.3d 1030
Docket NumberNo. 99,628.,99,628.
PartiesSTATE of Kansas, Appellee, v. Billy J. McCASLIN, Appellant.
Decision Date21 January 2011

Syllabus by the Court

1. As a general rule, a party cannot raise an issue on appeal where no contemporaneous objection was made and where the trial court did not have an opportunity to rule.

2. Under the contemporaneous objection rule, evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at the time the evidence is offered during trial.

3. In accordance with the plain language of K.S.A. 60-404, evidentiary claims—including questions posed by a prosecutor and responses to those questions during trial—must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal.

4. The purpose of the contemporaneous objection rule is to avoid the use of tainted evidence and thereby avoid possible reversal and a new trial. Under the rule, the trial court must be provided the specific and timely objection so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error.

5. A defendant cannot object to the introduction of evidence on one ground at trial and then assert another ground on appeal.

6. An issue not briefed is deemed waived or abandoned.

7. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder couldhave found the defendant guilty beyond a reasonable doubt.

8. An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses.

9. A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.

10. Allegations of prosecutorial misconduct require a two-step analysis. First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. Appellate courts apply the test to prosecutorial action in contexts beyond mere comments on the evidence.

11. In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors to determine whether a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.

12. A prosecutor may not make assertions of fact in the form of questions to a witness absent a good-faith basis for believing the asserted matters to be true.

13. A prosecutor is a servant of the law and a representative of the people.

14. As a fundamental rule in closing arguments, prosecutors must confine their comments to matters in evidence. However, a prosecutor is allowed considerable latitude in discussing the evidence and drawing reasonable inferences from that evidence. A prosecutor is given wide latitude in the language and manner of presenting argument and may even use picturesque speech as long as he or she does not refer to facts not disclosed by the evidence.

15. When a party challenges the admission or exclusion of evidence on appeal, the first inquiry is relevance. Unless otherwise prohibited, all relevant evidence is admissible. Relevant evidence is evidence having any tendency in reason to prove any material fact.

16. To establish relevance, there must be some logical connection between the asserted facts and the inference or result they are intended to establish.

17. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question.

18. Questions of evidentiary relevance, of balancing probativity with prejudice, and of whether evidence is cumulative are reviewed by an appellate court for abuse of discretion.

19. When a pretrial motion to suppress evidence has been denied, the moving party must still object to the admission of the evidence at the time it is offered during trial to preserve the issue for appeal.

20. When a defendant challenges the sufficiency of evidence establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.

21. An appellate court reviews constitutional questions de novo.

22. The Kansas hard 50 sentencing scheme is constitutional.

23. A sentence to any term within the range stated in a Kansas sentencing guidelines presumptive grid block does not violate Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), or Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

24. Under K.S.A. 21-4721(c)(1), an appellate court is without jurisdiction to consider a challenge to a presumptive sentence, even if that sentence is to the highest term in a presumptive grid block.

25. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply where the sentence imposed was based in part upon a defendant's criminal history score under K.S.A. 21-4704 of the Kansas Sentencing Guidelines Act.

26. Cumulative error requires reversal when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial.

Janine Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

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

A jury convicted Billy J. McCaslin of first-degree premeditated murder, rape, and aggravated arson. The court sentenced him to prison without the possibility of parole for 50 years (hard 50) for the murder conviction, 246 months for the rape conviction, and 61 months for the aggravated arson conviction, with all sentences to run consecutively. Our jurisdiction of his direct appeal is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the trial court err in admitting hearsay evidence in violation of McCaslin's right to confront the witnesses against him? Not preserved for appeal.
2. Did sufficient evidence support McCaslin's convictions? Yes.
3. Did the prosecutor commit reversible misconduct? No.
4. Did the trial court err in admitting into evidence a video showing the fire department's arrival and response to the fire? No.
5. Did the trial court err in admitting into evidence a photograph of the burned house, which included the victim's burned naked body? No.
6. Did sufficient evidence support the hard 50 sentence? Yes.
7. Is the Kansas hard 50 sentencing scheme constitutional? Yes.
8. Did the trial court err by sentencing McCaslin to the aggravated terms in the sentencing grid blocks for his rape and aggravated arson convictions? No.
9. Did the trial court violate McCaslin's Sixth and Fourteenth Amendment rights when it imposed enhanced sentences without submitting the enhancing factors, i.e., prior convictions, to the jury for proof beyond a reasonable doubt? No.
10. Did cumulative error deny McCaslin a fair trial? No.

Accordingly, we affirm.


On December 2, 2006, firefighters responded to a 911 call of a possible fire at 1701 South Laura Street in Wichita, Kansas. The house was the residence of Angela Duran-Ortiz (A.D.). Firefighters proceeded toward an orange glow coming from one of the bedrooms. Once the fire was extinguished and the smoke cleared, A.D.'s body was found on the bed. Her body was naked, except for a sock on her right foot. Her legs were spread apart and hanging over the side of the bed.A.D. was severely burned and had at least 13 visible stab or slash wounds.

McCaslin and A.D. had known each other for approximately 2 1/2 years before her death. McCaslin dealt drugs and sold cocaine to A.D. one or two times per week. He sometimes spent the night at A.D.'s house. McCaslin said they had engaged in sexual intercourse on five previous occasions but denied that they were in a relationship.

By contrast, Luis Aguilar had known A.D. for approximately 1 week prior to her death. When A.D.'s work shift ended at midnight, Aguilar sometimes took her to her mother's house where her three children stayed. The relationship between Aguilar and A.D. was not sexual in nature.

Shortly after midnight on the morning of A.D.'s death, Aguilar picked her up from work and drove to her mother's house. Unable to find a movie to watch there, they headed to Wal-Mart. There, A.D. ignored multiple calls to her...

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