State v. McClanahan

• Decision Date: 26 January 1996
• Docket Number: No. 72380,72380
• Citation: 259 Kan. 86,910 P.2d 193
• Parties: STATE of Kansas, Appellee, v. Roy McCLANAHAN, Appellant.
• Court: Kansas Supreme Court

Page 193

910 P.2d 193

259 Kan. 86

STATE of Kansas, Appellee, v. Roy McCLANAHAN, Appellant.

No. 72380.

Supreme Court of Kansas.

Jan. 26, 1996.

Syllabus by the Court

1. The rule that a party can open the door to otherwise inadmissible evidence applies only when one party opens the door for another party to present such evidence. A party cannot open the door for itself to present the inadmissible evidence.

2. K.S.A. 22-3423(1)(c) provides that the trial court may declare a mistrial at any time termination of a trial is necessary because prejudicial conduct inside or outside the courtroom makes it impossible to proceed with the trial without injustice to either the State or the defendant. A party seeking a mistrial has the burden of showing that the party has been substantially prejudiced by the error. The granting or denial of a motion for mistrial is a matter which lies within the sound discretion of the trial court, and a trial court's decision concerning a mistrial will not be reversed by an appellate court absent an abuse of that discretion.

3. The constitutional interest protected by Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), is that a defendant should be allowed to freely choose whether he or she should request a mistrial and forego the right to have the matter decided by the first trier of fact. Where the prosecutor seeks to force the defendant into a choice, the choice is not freely made and the prosecution has subverted the defendant's rights protected by the Double Jeopardy Clause of the United States Constitution.

4. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that the error was harmless beyond a reasonable doubt. Before an appellate court may declare an error harmless, it must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.

5. Based on the facts of this case, we are able to conclude beyond a reasonable doubt that the evidence against defendant was of such a direct and overwhelming nature it can be said that the prejudice caused by the prosecutor was likely to have had little weight in the jurors' minds and did not change the result of the trial.

Steven R. Zinn, Deputy Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Timothy J. Chambers, County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with him on the brief, for appellee.

LOCKETT, Justice:

Defendant appeals his second conviction for first-degree murder and claims that the trial court abused its discretion in denying a motion for a mistrial following the State's improper cross-examination.

Roy C. McClanahan was convicted by jury in 1992 of premeditated first-degree murder in the shooting death of Michael Martin. In State v. McClanahan, 254 Kan. 104, 865 P.2d 1021 (1993), this court reversed McClanahan's conviction, holding that the trial court erred in failing to instruct the jury on the lesser included offense of second-degree murder, and we remanded the action for a new trial. We also held that evidence of McClanahan's prior abuse of his wife, who was not the victim of the crime, was improperly admitted. We addressed the prior abuse issue, despite McClanahan's failure to object to the evidence at trial, to insure that the evidence was not presented when the action was retried. McClanahan was retried and again convicted. The evidence at the second trial was essentially the same as at the first except for evidence of McClanahan's prior abuse of his wife.

Roy McClanahan and his wife Josephine separated in May 1991, and she then became involved with Michael Martin. Martin stayed overnight with Josephine on May 25-26, 1991. Shortly after 5 a.m., Josephine heard glass breaking and left the bedroom to investigate. She observed McClanahan with a shotgun. McClanahan entered Josephine's bedroom. Josephine heard a gunshot a couple of minutes later. As McClanahan departed the residence, he hit Josephine in the face with a shotgun. Michael Martin, who was in the bedroom, died of a single gunshot wound to the chest. The shotgun blast penetrated Martin's arm, which appeared to have been raised in a defensive position, before striking his chest. Roy McClanahan turned himself in to the police after the shooting.

McClanahan testified at trial that he went to the house where Josephine was staying in the early morning hours to find out what was going on between Josephine and Martin. McClanahan insisted he did not intend to shoot anyone. He took a shotgun for protection because two people had warned him to leave Josephine and Martin alone. Upon arriving at the house he broke a window, reached in, and unlocked the back door. After entering the house, he saw Josephine coming out of a second floor room and putting on a housecoat over her naked body. McClanahan stated that he "flipped" and went into a "jealous rage." Pushing Josephine out of the way, he entered the dark bedroom. McClanahan released the safety on the shotgun and said, "Who's in here? Do to me what you just done to my wife." McClanahan stated that there was no reply but a few seconds later somebody pulled on the shotgun. According to McClanahan, as he pulled back, the shotgun went off. McClanahan insisted that the shooting was unintentional.

The one difference in the evidence at the two trials concerned testimony that before they separated, McClanahan had beaten Josephine. In the earlier trial, testimony revealed that Josephine had separated from McClanahan because he abused her. In McClanahan's first appeal, this court found that evidence of prior abuse was not relevant and was inadmissible because Josephine was not the person McClanahan had shot and killed.

At the second trial, Josephine testified that there was a reason she separated from McClanahan but, at the direction of the prosecutor, she did not specify that reason. McClanahan's daughter-in-law also testified that Josephine left McClanahan for an unspecified reason. During direct examination by his defense counsel, McClanahan testified that he was separated from Josephine, but he did not state the reason for their separation. He testified that he believed Josephine was with Martin at the time he went to the house where Josephine was staying. McClanahan also denied that he struck Josephine in the face with the shotgun.

During the State's cross-examination of McClanahan, the following occurred:

"Q. [By Mr. Fletcher, assistant county attorney] Isn't it true, Mr. McClanahan, that the reason Josephine left you is because you beat her?

"MR. MEISENHEIMER [counsel for the defendant]: Your Honor, I object to that question. It is entirely inappropriate.

"THE COURT: Sustained.

"Q. (By Mr. Fletcher) Well, Mr. McClanahan, is it your testimony that you thought Josephine McClanahan was seeing Michael Martin?

"A. Yes, I thought she was.

"Q. And is it your testimony--it was your opinion that that's why she left you because--

"MR. MEISENHEIMER: He has not testified to that, Your Honor. That assumes a fact not in evidence.

"MR. FLETCHER: I can ask the question.

"MR. MEISENHEIMER: If he asks the question, is that what you think, then that's fine.

"THE COURT: I'm going to sustain the objection to the form of the question.

"Q. (By Mr. Fletcher) Mr. McClanahan, aren't you attempting to insinuate to the jury that the reason Josephine McClanahan left you is because she was seeing Michael Martin?

"A. Yes.

"Q. Isn't it true that the reason she left you was not because she was seeing Michael Martin?

"A. Yes.

"Q. And didn't you testify at a previous hearing the reason why she left you--

"MR. MEISENHEIMER: Your Honor, I object to this line of questioning. It is entirely inappropriate."

The jury was excused and the following proceedings were had in their absence, defendant being present:

"THE COURT: ... What I was indicating to you when I called you up to the bench is that, as you know, the recent Supreme Court ruling in this case came down and indicated per the Supreme Court ruling that we cannot--that it is error to introduce any evidence of any prior abuse of Josephine McClanahan prior to her leaving Roy McClanahan.... I understand, Mr. Fletcher, that you're indicating that you're trying to contradict the impression that may have been given. You're indicating and your position is, if I'm understanding correctly, that there may have been an occasion at least in testimony of a prior hearing in this case, that Mr. McClanahan indicated that he knew that Josephine had left him because he'd beaten her and that's my understanding. You're saying he testified that way.

"MR. FLETCHER: Yes, Your Honor, Volume 2 of the transcript, Page 563, Line 6 through 8: 'Question: Isn't it true that the reason Josephine left you was because you beat her? Answer: Yeah, yes.'

"THE COURT: Okay. Now, is that the [first] trial transcript?

"MR. FLETCHER: Yes, Your Honor, cross examination.

"THE COURT: Okay. I understand that and the problem that we have in this case in light of the Supreme Court ruling which, as you know, was emphatic in the Supreme Court opinion when it came down on that is that at this point in time, in this particular trial, Mr. McClanahan has not testified in that regard yet so he has not yet, as you know, said something that would open--in other words, he has not said that in this particular hearing yet and that is the reason why it's not yet rebuttal evidence in this hearing. At least to my knowledge, I have not heard him testify that way in this particular hearing so there is no prior inconsistent statement to come in yet because there's been no statement yet in this particular hearing. Do you understand why I'm having to rule the way I am legally?

"MR. FLETCHER: You can rule the way you want, but I'm going to make a record on...