State v. McMillan

• Decision Date: 18 January 2011
• Docket Number: No. 101,846.,101,846.
• Citation: State v. McMillan, 242 P.3d 203, 44 Kan.App.2d 913 (Kan. App. 2011)
• Parties: STATE of Kansas, Appellee, v. James Charlie McMILLAN, II, Appellant.
• Court: Kansas Court of Appeals

242 P.3d 203

44 Kan.App.2d 913

STATE of Kansas, Appellee,

v.James Charlie McMILLAN, II, Appellant.

No. 101,846.

Court of Appeals of Kansas.

Nov. 12, 2010.

Review Denied Jan. 18, 2011.

[242 P.3d 207, 44 Kan.App.2d 913]

Syllabus by the Court

A prosecutor commits misconduct when he or she tells jurors to consider what they feel in their hearts when determining whether the State has met its burden to prove the defendant guilty beyond a reasonable doubt.On the facts of this case, however, that error did not result in prejudice to the defendant.

Matthew J. Edge, of Kansas Appellate Defender Office, for appellant.

Keith D. Hoffman, county attorney, Daryl E. Hawkins, assistant county attorney, and Steve Six, attorney general, for appellee.

Before MALONE, P.J., CAPLINGER and LEBEN, JJ.

LEBEN, J.

James McMillan's neighbor, Milton Jamison, was found in Jamison's mobile home, lying in a pool of blood with 56 knife wounds all over his body.Jamison and McMillan had played dominoes and drunk whiskey at Jamison's home the night before.McMillan told the police that he went home that night and had returned in the morning to find Jamison dead.McMillan had testified that he checked Jamison's body for vital signs, but McMillan was covered with more blood than would be transferred through the casual contact of checking vitals.He also had a bloody pocketknife in his pants, which the coroner concluded could have caused the wounds.A search warrant executed in McMillan's home later that day found items that tested positive for marijuana in a locked box under McMillan's bed.A jury convicted McMillan of intentional second-degree murder, possession of drug paraphernalia, and possession of marijuana.McMillan claims on appeal that the State committed prosecutorial misconduct and that the district court committed reversible error in six ways through his trial and at sentencing.

We will discuss McMillan's claims in detail but will first summarize our rulings.After review of the arguments and the trial transcript, we have concluded that the State did not commit prosecutorial misconduct when the prosecutor referenced the Virginia Tech, Columbine, and Kennedy shootings.He did so as examples to show that the State didn't need to prove motive, not to inflame the jury.And although the prosecutor's discussion of the reasonable-doubt standard was improper, it was not prejudicial.

Additionally, four of McMillan's remaining allegations were not error: the proffered hearsay testimony of two would-be defense witnesses did not meet the declarations-against-interest exception to the general rule that hearsay is inadmissible; McMillan explicitly rejected a voluntary-intoxication instruction at trial, and such an instruction would have been inconsistent with his defense that he didn't commit the crime or did so while angry; the use of McMillan's criminal-history score to calculate his sentence was constitutional; and the imposition of the aggravated sentence was also constitutional.

The district court did err when it did not include a nonexclusive-possession instruction and told the jury that the Zig Zag rolling papers were drug paraphernalia.But no real possibility existed that the jurors would have found McMillan not guilty of these offenses had they been properly instructed.Because McMillan was not prejudiced by the district court's errors, we will not set aside the jury's verdict, which was reached after presentation of evidence and the jury's careful deliberation.

Factual Background

On the morning of July 1, 2007, McMillan told police he had found his neighbor, Jamison, dead on the floor of Jamison's mobile home.The body was lying in large pool of blood.McMillan reported the incident to police as a possible suicide.

Questioned by the police, McMillan admitted that he and Jamison had played dominoes and drunk whiskey together at Jamison's house the night before.McMillan said that he went home around 11:30 p.m. and returned to check on Jamison the next morning because Jamison had been complaining of pains in hisside.While talking with McMillan, the police noticed that McMillan had a lot of blood on the jeans, shirt, and baseball cap he was wearing.McMillan said that he got the blood on him when he checked to see if Jamison was alive.

The police took McMillan back to the station.Once there, they seized a bloody folding knife from McMillan's pocket.The autopsy report indicated that Jamison had died from loss of blood after he'd been stabbed or cut 56 times.Additionally, the Kansas Bureau of Investigation concluded that the stains on McMillan's clothes were most likely "expirated blood," meaning that the blood had to have left Jamison's body while he was still alive.The blood on McMillan's clothes and knife matched Jamison's DNA.

Later that day, police searched McMillan's home.They found a locked box containing marijuana and other drug paraphernalia under McMillan's bed.The paraphernalia included a pipe, a tin container, and Zig Zag rolling papers.The police also reviewed a call that McMillan made from jail to one of his roommates, Patty Senart, in which the two discussed the drug charges against McMillan.McMillan and Patty shared the same room in the trailer but had separate beds.McMillan told Patty that he had lost the key to the locked box and said that Mark Senart, another one of his roommates and Patty's brother-in-law, might have another key.

The State charged McMillan with one count of intentional second-degree murder, one count of misdemeanor possession of marijuana, and one count of misdemeanor possession of drug paraphernalia.The complaint was amended to add an alternative count of unintentional second-degree murder, which was later dismissed by the State at trial.At trial, McMillan presented evidence intended to show that he didn't kill Jamison and that someone else did.McMillan continued to deny any involvement in Jamison's death at sentencing.

A jury convicted McMillan of intentional second-degree murder and the two drug charges.Based on McMillan's criminal history of G, he was sentenced to the aggravated 203-month prison sentence for intentional second-degree murder and given 12 months in county jail for each of the misdemeanor drug charges; the sentenceswere ordered to run consecutively, making the controlling sentence 227 months.

Analysis

McMillan makes several arguments on appeal.We will discuss each of them separately.

1.The State Did Not Commit Prosecutorial Misconduct when It Referenced the Virginia Tech, Columbine, and Kennedy Assassination Incidents, and the Prosecutor's Comment on the Reasonable-Doubt Standard Was Improper, Though Not Prejudicial.

McMillan argues that the State committed misconduct twice during its closing argument.McMillan's attorney did not object at trial, but Kansas appellate courts will consider potential error based on prosecutorial misconduct in closing argument even without an objection during trial.State v. King,288 Kan. 333, 349, 204 P.3d 585(2009).

We review prosecutorial misconduct allegations in two steps: we first determine whether there was misconduct and, if there was, we then determine whether the misconduct amounts to plain error so that reversal is required.288 Kan. at 351, 204 P.3d 585.As to the first step, such misconduct occurs when the comments are outside the wide latitude prosecutors are given when arguing cases.State v. McReynolds,288 Kan. 318, 323, 202 P.3d 658(2009).Prosecutors cannot comment on facts not in the evidence or give a personal opinion about the defendant's or other witnesses' credibility.King,288 Kan. at 351-52, 204 P.3d 585.But they can craft arguments that are reasonable inferences from the evidence.288 Kan. at 351, 204 P.3d 585.Second, prosecutorialmisconduct constitutes plain error when it prejudices the jury against the defendant.McReynolds,288 Kan. at 323, 202 P.3d 658.This court considers three factors in deciding whether the remarks were prejudicial: " '(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence [was so direct and overwhelming] that the misconduct would likely have had little weight in [the jurors'] minds.' "288 Kan. at 323, 202 P.3d 658.No one factor is individually controlling, and the third factor cannot override the first two unlessthe error was harmless, meaning it had little likelihood of changing the jury's verdict.288 Kan. at 323, 202 P.3d 658;State v. Tosh,278 Kan. 83, 96, 91 P.3d 1204(2004).

In this case, McMillan's allegations do not amount to prejudicial misconduct warranting reversal.

A.Comparison to the Virginia Tech Massacre, Columbine Shooting, and Kennedy Assassination

McMillan first complains that the State improperly compared his case to the Virginia Tech massacre, the Columbine shooting, and the assassination of President Kennedy.But the prosecutor's comparison of the four cases was limited to the point that even though motives of killings could be unclear, we could still be confident about who had killed whom:

"There are crimes that we will never know why.Look at the Columbine shooting in Colorado.We don't know why that happened.Look at the Virginia Tech massacre on the college campus.We don't know why that happened.We don't know why Lee Harvey Oswald shot President Kennedy, but we know those incidents happened.We know who did it.And we know how it was done.And in this casewe have presented that information to you."

McMillan insists that the comments inflamed the jury because they analogized his case to large-scale tragedies and constituted unsworn testimony about those other events.He also argues that the prosecution's mention of a lack of motive undermined its proof that he intended to commit the crime.The State replies that it was merely commenting on the fact that it didn't need to prove motive.

It is improper for the prosecutor to make statements intended to inflame the jury's...