State v. Tully

Decision Date23 September 2011
Docket NumberNo. 92,764.,92,764.
Citation262 P.3d 314,293 Kan. 176
PartiesSTATE of Kansas, Appellee,v.Michael TULLY, Appellant.
CourtKansas Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court

1. A multistep standard is applied to the review of evidentiary rulings. Under this multistep analysis, the first question is relevance. Second, it must be determined which rules of evidence or other legal principles apply. This conclusion is reviewed de novo. In the third step, the district court must apply the applicable rule or principle. The appellate court's review of this third step varies depending on the rule the district court applied. The determination of whether the admission or exclusion of evidence violated constitutional rights raises a question that is reviewed de novo. If constitutional rights are not implicated, the propriety and scope of cross-examination lie within the district court's discretion and are reviewed on appeal for an abuse of discretion.

2. Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the district court; (2) is based on an error of law, i.e., if the court's discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.

3. Under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the use of a defendant's silence at the time of arrest and after receiving warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966), for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

4. When a defendant attempts to convince a jury that he or she was of a cooperative spirit, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), does not prevent a prosecutor from pointing to a lack of cooperation by introducing evidence of the defendant's silence.

5. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), does not prohibit a prosecutor from impeaching a defendant at trial based on his or her prearrest and pre– Miranda silence.

6. Under the facts of this case, the defendant's assertion of his right to remain silent was not blatantly inconsistent with the defendant's trial testimony, which did not suggest a spirit of cooperation. Therefore, it was a violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), to admit evidence of the defendant's silence.

7. Under the harmless error standards of K.S.A. 60–261, K.S.A. 60–2105, and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), the test is whether an error affected substantial rights, meaning whether the error affected the outcome of the trial.

8. The degree of certainty by which a court must be persuaded that an error did not affect the outcome of the trial will vary depending on whether the error infringes upon a right guaranteed by the United States Constitution. If it does not, the court should apply K.S.A. 60–261 and determine if there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record. If the fundamental failure infringes upon a right guaranteed by the United States Constitution, the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.

9. When a party has objected to a jury instruction at trial, the instruction will be examined to determine if it properly and fairly states the law as applied to the facts of the case and could not reasonably mislead the jury.

10. When a defendant's trial objection to a jury instruction is different from the issue raised on appeal, an appellate court applies the clearly erroneous standard of review to the appellate issue.

11. Jury instructions are clearly erroneous only if the reviewing court is firmly convinced that the jury would have reached a different verdict had the error not occurred.

12. Force or fear within the definition of rape is a highly subjective concept that does not lend itself to definition as a matter of law.

13. A district court's application of K.S.A. 60–456 is reviewed on appeal for an abuse of discretion.

14. K.S.A. 60–456(b) requires an expert's opinion or inferences be limited to such opinions as the district court finds are (1) based on facts personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience, or training possessed by the witness.

15. Opinion evidence is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.

16. A cumulative error analysis aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless.

17. In a cumulative error analysis, an appellate court considers whether the defendant's substantial rights were affected by the cumulative effect of errors which individually might be deemed harmless. In other words, was the defendant's right to a fair trial violated because the combined errors affected the outcome of the trial?

18. In a cumulative error analysis, if any of the errors being aggregated are constitutional in nature, the cumulative error must be harmless beyond a reasonable doubt.

19. In conducting a cumulative error analysis, an appellate court examines the errors in the context of the record as a whole, considering how the district court dealt with the errors as they arose including the efficacy, or lack of efficacy, of any remedial efforts; the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence. No prejudicial error may be found if the evidence is overwhelming against the defendant.

Rebecca L. Kurz, of Morgan Pilate LLC, of Olathe, argued the cause and was on a brief for appellant, and Bob L. Thomas, of the Law Offices of Bob L. Thomas, LLC, of Olathe, was on a brief for appellant.Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, former district attorney, Phill Kline, former attorney general, Stephen M. Howe, district attorney, and Steve Six, attorney general, were with him on the briefs for appellee.

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

A jury convicted Michael Tully of one count of rape. On direct appeal to the Court of Appeals, Tully argued (1) the State improperly commented on his postarrest silence; (2) the district court gave an improper jury instruction on the element of force; (3) the State's expert witness offered an opinion beyond her qualifications, which also invaded the province of the jury; and (4) cumulative error deprived him of a fair trial. The Court of Appeals majority rejected each of Tully's claims and affirmed his conviction. State v. Tully, No. 92,764, 2007 WL 1109309 (Kan.App.2007) (unpublished opinion). In a dissenting opinion, one member of the Court of Appeals panel found error in the first three issues, which, in his opinion, cumulatively prejudiced Tully and denied him a fair trial. Tully, 2007 WL 1109309, at *9–12 (Greene, J., dissenting).

Tully filed a petition for review, raising the same four issues, and this court granted the petition. Under our jurisdiction pursuant to K.S.A. 20–3018(b) and K.S.A. 22–3602(e), we reverse the Court of Appeals and the district court, finding error on each of the first three issues and determining the errors require reversal of his conviction. We remand the matter with directions to the district court.

Facts and Procedural Background

Tully was charged with raping A.C. by engaging in sexual intercourse without her consent under circumstances when she was overcome by force or fear. See K.S.A. 21–3502(a)(1)(A). Tully did not deny having intercourse with A.C. but asserted it was consensual and that A.C. was not overcome by force or fear.

The alleged rape occurred during a party that A.C. and her older sister, J.C., threw while their parents were out of town. A.C. was 14 years old at the time. The girls invited Tully and several other friends to the party. Tully, who had previously dated J.C., was 19 years old at the time. Tully and the other guests spent the night at the girls' home.

During the evening, most of the individuals in attendance became intoxicated, including A.C. At one point, A.C. became so ill she was unable to make it upstairs to the bathroom by herself. Consequently, Tully and A.C.'s boyfriend carried A.C. upstairs. Once they got her into the bathroom, Tully stepped into a hallway where he waited. Tully told A.C.'s boyfriend that he would take care of A.C., and the boyfriend left.

According to A.C., when she stepped out of the bathroom and into the hallway, Tully removed her pants and then carried her into her parents' bedroom and laid her on the bed. Tully told A.C. not to “tell anybody” and then engaged in sexual intercourse with her. A.C. testified that she told Tully “no,” and in response he put one of his hands over her mouth and used his other hand to pin down her arm. A.C. stated that she was crying and continued to say “no” and “I don't want to do it.” Because of her intoxicated state, A.C. did not try to fight Tully.

After a few minutes, Tully stopped. A.C. then got dressed and went downstairs to her bedroom. A.C. went to the bathroom and noticed she was bleeding a little in the vaginal area. Consistent...

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93 cases
  • State v. Smith-Parker
    • United States
    • Kansas Supreme Court
    • December 24, 2014
    ...cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless.” State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).“In making the assessment of whether the cumulative errors are harmless error, an appellate court examines the errors in ......
  • State v. Myers
    • United States
    • Kansas Court of Appeals
    • April 8, 2022
    ...all errors and determines whether the combined effect of the errors violated the defendant's right to a fair trial. State v. Tully , 293 Kan. 176, 205, 262 P.3d 314 (2011). But the cumulative error analysis does not apply when multiple errors have not been found. State v. Gonzalez , 307 Kan......
  • State v. Carr
    • United States
    • Kansas Supreme Court
    • January 21, 2022
    ...whether their cumulative effect is such they cannot be deemed harmless, even though individually those errors are harmless. State v. Tully , 293 Kan. 176, Syl. ¶ 1, 262 P.3d 314 (2011). In assessing cumulative error in a capital trial's penalty phase, the aggregation includes any errors in ......
  • State v. Warrior
    • United States
    • Kansas Supreme Court
    • May 11, 2012
    ...was the defendant's right to a fair trial violated because the combined errors affected the outcome of the trial?" State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011). Where, as here, the only errors we have found or assumed are not constitutional in nature, we examine whether there is a......
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