State v. Stewart

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 111,995
STATE OF KANSAS,
Appellee,
v.
MAURICE ORLANDO STEWART,
Appellant.
SYLLABUS BY THE COURT
1.
Premeditated intentional murder and felony murder are not separate and distinct
crimes, notwithstanding their considerable differences. Rather, premeditated murder and
felony murder are alternative ways by which a person can commit the singular crime of
first-degree murder.
2.
When the State prosecutes a defendant for first-degree murder under the alternate
theories of premeditated intentional murder and felony murder, the jury must consider
both theories before arriving at a verdict on the charge of first-degree murder. If the jury
finds a defendant guilty under either theory of first-degree murder, it does not consider
second-degree murder or any other lesser included offense.
3.
A defendant may not invite and lead a district court into making an error and then
complain of the error on appeal. The invited error doctrine may preclude a challenge to
an instruction when the district court gives a defendant's requested instruction to the jury;
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when the defendant agrees on the record to the specific wording of a jury instruction; or
when the defendant proposes the district court's response to a jury question.
4.
When presented with competing expert opinion testimony, a district court judge
acting as fact-finder has the authority and responsibility to assess witness credibility and
to weigh the conflicting evidence in order to reach a decision, even though the ruling may
comport with one expert opinion and contradict another expert opinion. In the
circumstance where a district court is presented with competing and conflicting expert
opinion testimony, an appellate court will accord a great deal of deference to the district
court's decision.
5.
It is an abuse of discretion for a district court to adopt a pretrial ruling that
disposes of a discretionary determination automatically, without analyzing the factors
that would enter into the discretionary decision; i.e., it is an abuse of discretion to refuse
to exercise discretion or to fail to appreciate the existence of the discretion to be
exercised in the first instance.
6.
When faced with a cumulative error claim, an appellate court conducts an
unlimited review of the entire record to determine whether the totality of the
circumstances establishes that the cumulative effect of trial errors substantially prejudiced
the defendant and denied the defendant a fair trial.
Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed April 28, 2017.
Judgment of the district court is affirmed.
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Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.
Steven J. Obermeier, senior deputy district attorney, argued the cause, and Stephen M. Howe,
district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
JOHNSON, J.: A jury convicted Maurice Orlando Stewart of felony murder,
aggravated robbery, burglary, and theft for incidents occurring in a hotel room occupied
by Stephen Cook, located in the same facility where Stewart was staying at the time.
Stewart was accused of burglarizing Cook's room to steal a laptop computer and later
returning to the room to kill Cook while robbing him of his wallet. The district court
imposed a controlling sentence of life without the possibility of parole for 20 years plus
102 months.
On direct appeal to this court, Stewart argues that (1) the district court erred in
instructing the jury on the State's alternative theories of first-degree murder; (2) the
district court failed to properly instruct the jury on the element of force required for
aggravated robbery; (3) the district court erred in finding him competent to stand trial; (4)
the district court erred in admitting blood spatter evidence over Stewart's objection that it
did not conform to the test from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); and
(5) cumulative error denied him a fair trial. Finding no reversible error, we affirm
Stewart's convictions.
FACTUAL AND PROCEDURAL OVERVIEW
The events leading to Stewart's convictions began to unfold on June 27, 2010,
when Cook checked into room 221 at the Econo Lodge in Olathe. Cook worked as a
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supervisor of a company that was pressure testing a pipe system close by in Kansas City,
Missouri. Stewart; his girlfriend, Stephanie Laguna; and her son were staying in room
223, next door to Cook.
The next day, sometime around late morning or early afternoon, Edye Pool visited
her ex-boyfriend, Stewart, at room 223 while Laguna was at work. Stewart gave Pool a
laptop without attachments or accessories, telling her it was stolen. At approximately 7
p.m., the Olathe Police Department dispatched an officer to investigate a burglary in
room 221, where Cook told the officer that, after work, he discovered his laptop missing,
although the carrying case and power cord were still in the room. Laguna would relate
that Stewart left their room around 10 or 10:30 p.m. that same day, but she would later
hear someone running water in the bathroom.
Early the next day, about 1 a.m., Leeana Deherrera answered the front door of the
apartment she shared with Tremain Ryan and two sons, less than a mile from the Econo
Lodge. Ryan was not home at the time. Stewart stood at the doorway, appearing panicked
and out of breath, as if he had been running. Deherrera and Ryan had known Stewart for
approximately 12 years. Stewart said that "somebody tried to kill him," and said that he
needed to see his brother. Deherrera directed Stewart to the apartment above her but later
went up to check on him. She found Stewart in the bathroom cleaning himself and
observed that his jeans were "covered in blood" from the mid-thigh to the shins; that he
had a cut on his arm; and that he put his bloody clothes in a black trash bag. He would
not answer Deherrera's question as to how he cut his arm.
When Ryan returned home around 1:30 a.m., he took photographs while Deherrera
helped stitch up and bandage the cut on Stewart's arm. Stewart told Deherrera and Ryan
that three men had followed his car from a gas station to the motel and jumped him, with
one trying to cut his neck. Deherrera and Ryan had not known Stewart to own a car.
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Stewart also told Ryan, "I think I may have killed somebody." Stewart showed Ryan the
black trash bag containing his bloodied clothes and told Ryan he intended to "burn them."
At some point, Stewart mentioned to Ryan that a "gay guy" had come to his aid after the
fight with the three men and that he had "stabbed" or "stuck" this man because he had
"sexually hit on him." According to Ryan, Stewart had strong opinions against
homosexuality.
Stewart borrowed Ryan's car around 3:30 or 4 a.m. to get Laguna and her son from
room 223. En route back to Deherrera and Ryan's apartment, Stewart told Laguna he did
not go to the hospital for his arm injury because he "did not want to have any
involvement with law enforcement." Sometime after 6 a.m., Stewart left the apartment
with Pool, Laguna, and her son, taking the black trash bag containing his bloodied clothes
with him.
Cook's coworkers became concerned when he did not show up for a 7 a.m.
meeting. After repeated failed attempts to reach Cook by phone, Cook's boss went to the
Econo Lodge. When Cook's boss and the night manager went up to room 221 and opened
the door, they found Cook dead on the floor of the bathroom in a pool of blood.
Crime scene investigators observed a room in disarray and "a substantial amount
of blood." The investigators collected swabs from extensive bloodstains throughout
Cook's room. Investigators also found multiple footwear impressions in room 221 and
leading next door to room 223, where they found bloodstains in the bathroom and
recovered some towels and a t-shirt with staining.
Later that day, Deherrera and Ryan contacted the police after watching press
coverage of a murder at the Econo Lodge. Based on the information provided by
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Deherrera and Ryan, detectives began trying to locate Stewart as a potential suspect in
the murder of Cook.
That same day, at approximately 10 p.m., a City of Mission police detective
conducted a traffic stop of a truck driven by Pool. During a later inventory search of the
truck, the detective found a wallet under the driver's seat containing a business card with
the name "Stephen Cook." Pool told police that Stewart asked her to hide the wallet. The
crime scene investigator who processed the wallet found Cook's California driving
license and 23 receipts, 4 of which had bloodstains. Forensic DNA testing on the wallet
and receipts identified both Stewart's and Cook's DNA.
Detectives subsequently determined that Stewart boarded a Greyhound bus
travelling from Kansas City, Missouri, to Dallas, Texas, on June 30, 2010. Wichita police
arrested Stewart at a scheduled stop in Wichita that same day.
Two Olathe police detectives interrogated Stewart in Wichita. Stewart initially
denied having been in Cook's room prior to his death, but when confronted with the
evidence of the stolen laptop, he admitted to the burglary and theft. As for Cook's death,
Stewart asserted that he had acted in self-defense, relating different versions of what
happened when he and Cook went to room 221 after Cook had saved Stewart from the
attackers outside of the motel.
At first, Stewart told detectives that Cook, who he repeatedly referred to as a
"fag," went into the bathroom, came out without a shirt on, propositioned Stewart, and
tried to pull at Stewart's pants as he sat on the bed. When Stewart kicked Cook away,
Cook brandished a knife and cut Stewart's arm. Stewart then tried to run from the room
but tripped and fell. Cook continued toward Stewart, and Stewart kicked Cook's legs. As
Cook fell, Stewart grabbed Cook's arm, causing Cook to cut his own neck. Stewart then
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fled the room. Stewart maintained that he never had the knife in his hand and did not
know what happened to the knife or what it looked like. The knife used as the murder
weapon was never located.
In rehashing what happened, Stewart added that Cook had crawled after him and
their struggle eventually ended up in the bathroom. Later, Stewart changed his story—in
the first version, Stewart said that his pants had stayed on when Cook grabbed them, but
in a later version Stewart said his pants had come down. Stewart also added the details
that Cook had grabbed Stewart's "penis or testicles" in varying places in the room and
that Cook exposed himself to Stewart during the attack, then buttoned himself back up
and continued to attack him.
When the detectives challenged Stewart's story that he never had the knife and that
Cook had cut his own neck, Stewart said that he had the knife once and that he cut Cook
only once. Stewart demonstrated himself cutting Cook, but it appeared to the detectives
as if Stewart was striking his own arm in the area where he had been stitched. When
confronted about the number of injuries to Cook, Stewart changed his story to having cut
Cook four or five times. Stewart also described being on the bed in varying positions
when Cook allegedly cut Stewart's arm. Stewart's various descriptions of events did not
include any struggle or bloodshed having occurred on the west side of the room, where
law enforcement collected some of the evidence.
The State charged Stewart in the alternative with first-degree premeditated murder
and first-degree felony murder, and with the aggravated robbery of Cook's wallet. The
State also charged Stewart with the burglary of Cook's hotel room and the theft of his
laptop.
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A lengthy procedural history ensued over the next 40 months before Stewart's jury
trial commenced in October 2013. Two of the district court's pretrial rulings are germane
on appeal.
In June 2011, Stewart filed a motion seeking a Frye hearing on the admissibility of
DNA evidence and blood spatter evidence, with the goal of excluding testimony from
Jeremiah Morris, a blood spatter expert. At an unrelated suppression hearing in August
2011, Judge Stephen R. Tatum ruled that the blood spatter evidence did not trigger a Frye
analysis because the evidence did not qualify as new or experimental. Judge Tatum
clarified that the defense was free to revisit the issue if anything new came up and could
raise the issue at trial if necessary to challenge Morris' qualifications or conclusions.
In March 2012, Stewart's attorney filed a motion requesting a competency
determination. The district court, relying on a competency evaluation report from the
Johnson County Mental Health Center, found Stewart competent to stand trial. The
defense subsequently moved to reopen the issue of competency and to commit Stewart to
Larned State Hospital. The district court, after considering conflicting expert opinions,
sent Stewart to Larned, where doctors found Stewart competent to stand trial after
observing and evaluating him for 90 days. At a competency hearing in March 2013, the
defense presented evidence from two experts who opined that Stewart was incompetent
to stand trial. Three experts for the State testified that they reached the opposite
conclusion. The district court, after considering the evidence, found Stewart competent to
stand trial.
During the 8-day jury trial, defense counsel informed Judge Thomas Kelly Ryan
she intended to renew the pretrial objection to the admission of both DNA and blood
spatter evidence to ensure that there was a contemporaneous objection in the record.
When defense counsel subsequently objected to the admission of the DNA evidence,
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Judge Ryan ruled, "I'm not going to make any different ruling from what Judge Tatum
had done in the prior hearings. You can bring up the blood spatter when we get to that
point."
The DNA analyst testified that Cook's DNA had been identified in numerous
bloodstains found in his room 221. Stewart's DNA was identified on a sock found under
Cook, in the hallway leading to Stewart's room 223, and in the bathroom in room 223. A
forensic scientist testified that several footprint impressions found in Cook's room,
including impressions left on Cook's shoulder and buttocks, either could be or were from
Stewart's shoes.
Just before the State called Morris to the stand, defense counsel renewed the
pretrial objection challenging the scientific reliability of the blood spatter evidence under
Frye. Judge Ryan clarified that he was unable to locate any written order by Judge Tatum
with regard to the blood spatter evidence. Defense counsel informed Judge Ryan there
was no written order and that the issue was addressed at a suppression hearing. Judge
Ryan explained, "I just wanted to make sure for the record that it is there," and then ruled,
"I'm going to abide by what the previous ruling is by Judge Tatum and overrule the
objection at this point." Judge Ryan made no additional findings of fact and did not
otherwise elaborate on the reasons for his conclusions. Stewart did not request any
additional findings from the court.
Defense counsel again objected when the State attempted to introduce Morris'
PowerPoint presentation explaining his blood spatter analysis and conclusions. Defense
counsel based this renewed objection, which was tantamount to a motion to reconsider,
on the same scientific reliability argument that underlay the pretrial objection.
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Morris testified that he had spent 3 days at the crime scene conducting a
bloodstain pattern analysis to determine where the bloodshed first occurred in room 221
and how it continued into room 223. Morris concluded that the bloodshed from the
struggle in room 221 began on the west side of the bed, moving eastward to end in the
bathroom. He said the bloodstains were consistent with the victim being on or near the
ground while the assailant was in an upright position.
The forensic neuropathologist who performed the autopsy on Cook testified
Cook's death was a homicide. Cook died from a combination of profuse bleeding from 24
to 40 superficial sharp-force injuries or knife cuts and his underlying severe heart and
lung disease, including advanced emphysema. Cook also had a fracture of the sternum, or
breastbone, 11 broken ribs, and 4 defensive wounds on his right palm where he grabbed
or attempted to ward off the knife blade. The forensic neuropathologist believed that
Cook did not die immediately and might have survived his injuries had he received
immediate medical attention.
The defense theory was that Stewart killed Cook in self-defense after Cook
attacked and injured Stewart with a knife when Cook's sexual advances were rejected. To
corroborate the theory and Stewart's version of events relayed during his interrogation,
defense counsel sought to portray Cook as a severe alcoholic who led a promiscuous
homosexual lifestyle, soliciting men while he traveled the country and becoming verbally
and physically abusive when drinking. Defense counsel characterized Stewart's
murderous act as a post-traumatic stress disorder (PTSD) "panic reaction" to Cook's
sexual advances and assault.
The jury convicted Stewart of felony murder based on the underlying felony of
aggravated robbery; aggravated robbery of Cook's wallet; burglary; and theft of Cook's
laptop computer. The court imposed a hard-20 life sentence plus 102 months.
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Stewart timely appealed. This court has direct-appeal jurisdiction under K.S.A.
2015 Supp. 22-3601(b)(3) and (4) (off-grid crime; maximum sentence of life
imprisonment imposed).
INSTRUCTION ON ALTERNATIVE THEORIES OF FIRST-DEGREE MURDER
Stewart's first alleged instructional error challenges the district court's use of PIK
Crim. 3d 56.02-A to instruct the jury on the State's alternative theories of first-degree
murder—premeditated murder and felony murder. He argues that Jury Instruction No. 15
was legally inappropriate because it instructed the jury to consider lesser included
offenses for both alternative theories, despite felony murder having no lesser included
offenses.
Standard of Review
For jury instruction issues, appellate courts first consider the reviewability of the
issue from both jurisdiction and preservation viewpoints exercising an unlimited standard
of review. State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015). This court has
jurisdiction under K.S.A. 2015 Supp. 22-3601(b)(3) and (4). Because Stewart did not
object to the challenged alternative theory instruction, he is constrained on appeal to
show that the instruction was clearly erroneous. See K.S.A. 22-3414(3); State v.
Williams, 295 Kan. 506, 510-11, 286 P.3d 195 (2012).
In determining whether the challenged instruction was clearly erroneous, this court
first determines whether the instruction at issue was both legally and factually
appropriate. We employ an unlimited review of the entire record to analyze the legal
question of whether the instruction fairly and accurately states the applicable law. In
considering whether the jury instruction was factually appropriate, we determine whether
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there was sufficient evidence, viewed in the light most favorable to the defendant or the
requesting party, to support the instruction. If error is present, this court must be firmly
convinced, based on a de novo review of the entire record, that the jury would have
reached a different verdict without the error. State v. Dominguez, 299 Kan. 567, 573-74,
328 P.3d 1094 (2014). Stewart has the burden to prove the degree of prejudice necessary
for reversal. See State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).
Analysis
Although the use of PIK instructions is generally not required, it is strongly
recommended, absent a particular need to alter or add to the PIK instructions under the
facts of the case at hand. Dominguez, 299 Kan. at 576; State v. Dixon, 289 Kan. 46, 67,
209 P.3d 675 (2009). Here, the district court followed that recommendation and relied on
the pattern instructions and verdict form specifically designed for trials in which the State
presents alternative theories of first-degree murder to the jury. See Notes on Use to PIK
Crim. 3d 56.02-A. The challenged Jury Instruction No. 15, patterned after PIK Crim. 3d
56.02-A, stated:
"In this case, the State has charged the defendant with one offense of murder in
the first degree and has introduced evidence on two alternate theories of proving the
crime.
"The State may prove murder in the first degree by proving beyond a reasonable
doubt that the defendant killed Stephen Cook and that such killing was done while in the
commission of aggravated robbery or in the alternative by proving beyond a reasonable
doubt that the defendant killed Stephen Cook intentionally and with premeditation, as
fully set out in these instructions.
"Where evidence is presented on the two alternate theories of proving the crime
charged, you must consider both in arriving at your verdict.
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"In instruction 17 the Court has set out for your consideration the essential claims
which must be proved by the State before you may find the defendant guilty of felony
murder, that is the killing of a person in the commission of aggravated robbery.
"In instruction 16 the Court has set out for your consideration the essential claims
which must be proved by the State before you may find the defendant guilty of
premeditated murder.
"If you do not have a reasonable doubt from all the evidence that the State has
proven murder in the first degree on either or both theories, then you will enter a verdict
of guilty.
"If you have a reasonable doubt as to the guilt of the defendant as to the crime of
murder in the first degree, then you must consider whether the defendant is guilty of
intentional murder in the second degree, unintentional murder in the second degree,
voluntary manslaughter or involuntary manslaughter."
For the first time on appeal, Stewart contends that the last paragraph of the
instruction was not legally appropriate because the felony murder alternative manner of
committing first-degree murder has been retroactively defined as containing no lesser
included offenses. K.S.A. 2015 Supp. 21-5402(d) and (e); see also State v. Todd, 299
Kan. 263, 274-79, 323 P.3d 829 (2014) (new definition of felony murder applied to all
cases not final). In contrast, the premeditated intentional murder alternative component of
first-degree murder continues to be defined as encompassing lesser included offenses.
Therefore, Stewart argues, the jury should have been instructed to consider the lesser
included offenses if it had a reasonable doubt as to Stewart's guilt as to the crime of
premeditated murder, rather than if it had a reasonable doubt as to the crime of murder in
the first degree.
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Stewart points to the verdict form, where the jury did not select premeditated
murder. He contends that verdict form indicates the jury had a reasonable doubt as to
whether Stewart committed premeditated murder, which would require the jury to
proceed to consider the lesser included offenses of premeditated murder, notwithstanding
its guilty verdict on felony murder. His argument is founded on the notion that, because
felony murder is not a lesser included offense of premeditated murder and has no lesser
included offenses of its own, felony murder should not be considered part of the "first
degree premeditated murder tree of lesser included offenses." In other words, the jury in
this case had to consider the lesser included offenses of premeditated murder, separate
and apart from its consideration of the elements of felony murder. We disagree.
As Stewart acknowledges, felony murder is not a lesser included offense of
premeditated murder. Likewise, premeditated murder and felony murder are not separate
and distinct crimes, notwithstanding their considerable differences. They are alternative
ways to commit the singular crime of first-degree murder. See K.S.A. 2015 Supp. 21-
5402(d); State v. Thomas, 302 Kan. 440, 448, 353 P.3d 1134 (2015); see also Dominguez,
299 Kan. at 576 (citing PIK Crim. 3d 56.02, Comment, noting that K.S.A. 21-3401
merely provides alternative methods of proving first-degree murder); State v. Starr, 259
Kan. 713, 720, 915 P.2d 72 (1996) ("Premeditated and felony murder are not separate
and distinct offenses but are two separate theories under which the crime of first-degree
murder may be committed.").
Consequently, the district court appropriately instructed the jury to simultaneously
consider both alternative theories of proving the charged crime of first-degree murder.
Only if it rejected both alternate theories of first-degree murder did the jury need to move
on to consider second-degree murder and other lesser included offenses. Stewart's
proposed instruction would have the jury simultaneously considering first- and second-
degree murder, which we have held is improper. See Dominguez, 299 Kan. 567, ¶ 1
14
("trial court errs by failing to instruct the jury that both theories are separate types of first-
degree murder and both theories must be considered before the jury arrives at a verdict
regarding the charge of first-degree murder").
In short, the district court did not err in instructing the jury to simultaneously
consider premeditated and felony murder, and, upon finding Stewart guilty on either or
both theories, to sign the verdict form, ending deliberations without consideration of any
lesser included homicide offenses. Without error, the instructions could not be clearly
erroneous. See Williams, 295 Kan. at 515 (to determine whether an instruction was
clearly erroneous, reviewing court necessarily must first determine whether it was
erroneous).
INSTRUCTION ON FORCE
For his second alleged instructional error, Stewart contends that the district court
failed to instruct the jury that the justified force reflected in the self-defense jury
instruction could not satisfy the element of force to find he committed aggravated
robbery, the underlying crime for his felony-murder conviction. The State argues that
Stewart invited any error by urging the district court to refrain from defining the element
of force for aggravated robbery when responding to the jury's question seeking the
definition of that element.
Invited Error
Because Stewart did not object to the district court's alleged failure to give a jury
instruction distinguishing the element of force for self-defense and aggravated robbery,
this court, as discussed, would generally review the jury instruction to determine whether
it was clearly erroneous. See K.S.A. 22-3414(3); Williams, 295 Kan. at 510. However, a
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defendant's ability to allege an instructional error, even under K.S.A. 22-3414(3), is not
absolute.
A defendant may not invite and lead a district court into error and then complain
of the error on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). The
invited error doctrine precludes a challenge to an instruction as clearly erroneous under
K.S.A. 22-3414(3) when the district court gives a defendant's requested instruction to the
jury. State v. Jones, 295 Kan. 804, 811-12, 286 P.3d 562 (2012). The doctrine can also
apply where there has been an on-the-record agreement to the wording of the instruction
at trial. State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012). This court has also
applied the invited error doctrine in reviewing a district court's response to a jury
question. See State v. Adams, 292 Kan. 151, 163-65, 254 P.3d 515 (2011).
"Robbery is the taking of property from the person or presence of another by force
or by threat of bodily harm to any person." (Emphasis added.) K.S.A. 21-3426. The crime
of robbery is aggravated under K.S.A. 21-3427 "when the robber is armed with a
dangerous weapon or inflicts bodily harm upon any person in the course of the robbery."
State v. Harris, 297 Kan. 1076, 1082, 306 P.3d 282 (2013).
Here, the district court properly instructed the jury on the following elements of
aggravated robbery, modified from PIK Crim. 3d 56.31, based on how the State charged
the crime:
"To establish [aggravated robbery], each of the following claims must be proved:
"1. That the defendant intentionally took a wallet from the person or presence
of Stephen Cook;
"2. That the taking was by force;
"3. That the defendant was armed with a dangerous weapon; and
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"4. That this act occurred on or about the 28th day of June, 2010, and the
29th day of June, 2010, in Johnson County, Kansas." (Emphasis added.)
For the first time on appeal, Stewart argues that if the jury believed he used force
to defend himself, but later took the wallet, he would have committed a theft, not
robbery. In other words, the jury could not use any justified self-defense force to meet the
requisite "force" element of robbery. He contends that the district court should have, sua
sponte, instructed the jury about that distinction and that a question from the jury
demonstrates that the absence of such an instruction would have changed the outcome.
During deliberations, the jury posed the following question: "What's the definition
of the use of force in taking the wallet?" When the court sought input from the parties,
defense counsel, with Stewart present, stated:
"I think the best thing to do is just to have the jury refer back to the jury instructions.
They've already been instructed on the law. We've agreed what the instructions should be
and to not give a further definition of force. Everything that we wanted to have in there is
in that jury instruction packet." (Emphasis added.)
Defense counsel further clarified, "Our request would be to just give them the
generic, we must refer . . . to the instructions. My experience has been that typically it's
the instructions as a whole and leave it at that, rather than a specific instruction." When
asked if there was any objection to the district court's suggested response, "I must refer
you back to the jury instructions for any definition of the use of force in taking the
wallet," defense counsel replied, "No." A written document in the record on appeal,
signed by the trial judge, reflects the identical response.
As Stewart points out in his brief, his underlying premise—that self-defense force
is not proof of the taking-by-force element of robbery—is not settled law in this state. To
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the contrary, the Court of Appeals has held that "self-defense does not justify the taking
of money or property from an aggressor, and the lawfulness of the force used to
accomplish the theft is immaterial." State v. Antwine, 4 Kan. App. 2d 389, 400, 607 P.2d
519 (1980). Nevertheless, we need not consider that question further in this case.
Stewart had the opportunity to seek to dispel any purported confusion about force
in response to the jury's question. The response to the jury explaining what constituted
force for aggravated robbery could also have explained what did not constitute force.
Instead, defense counsel invited the district court not to provide the jury with any further
definition of what satisfied the element of force for the crime of aggravated robbery,
"[t]he key question for this issue" on appeal according to Stewart. More importantly,
defense counsel explicitly told the district court, "Everything that we wanted to have in
there is in that jury instruction packet."
In short, if there was any instructional error, the defense's unequivocal affirmative
assertion that the instruction packet contained all the instructions Stewart wanted
precludes this first-time-on-appeal argument that the jury instructions were clearly
erroneous under K.S.A. 22-3414(3). See Peppers, 294 Kan. at 393 (when a defendant has
invited error, he or she cannot complain of the error on appeal).
COMPETENCY TO STAND TRIAL
Stewart argues that the district court should have found him incompetent to stand
trial based on the evidence of his low intelligence quotient (IQ) with corresponding
impaired cognitive function. The State responds that substantial competent evidence
supports the district court's ruling of competency and that this court should not reweigh
the evidence or assess the credibility of the parties' respective experts.
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Standard of Review
An appellate court applies an abuse of discretion standard when reviewing a
district court's decision that a defendant is competent to stand trial. Woods, 301 Kan. at
860. A judicial action constitutes an abuse of discretion if the action is (1) arbitrary,
fanciful, or unreasonable, (2) based on an error of law; or (3) based on an error of fact.
301 Kan. at 861.
Stewart does not argue an error of fact or law. Accordingly, "''[i]f reasonable
persons could differ as to the propriety of the action taken by the trial court, then it cannot
be said that the trial court abused its discretion." [Citations omitted.]'" State v. Hill, 290
Kan. 339, 367, 228 P.3d 1027 (2010). Stewart bears the burden of showing such abuse of
discretion. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
Analysis
"The criminal trial of an incompetent person violates due process. Medina v.
California, 505 U.S. 437, 453, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992)" Woods, 301
Kan. at 857. A defendant is incompetent to stand trial when he or she is charged with a
crime and, because of mental illness or defect, is (1) unable to understand the nature and
purpose of the proceedings or (2) cannot make or assist in making his or her defense.
K.S.A. 22-3301(1). This standard is in accord with Dusky v. United States, 362 U.S. 402,
402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960), which held that a criminal defendant may not
stand trial unless he or she has sufficient present ability to consult with his or her lawyer
with a reasonable degree of rational understanding and a rational as well as factual
understanding of the proceedings against him or her. See State v. Barnes, 293 Kan. 240,
256, 262 P.3d 297 (2011).
19
A defendant is presumed competent to stand trial. Woods, 301 Kan. at 860.
However, the defendant, defendant's counsel, the prosecutor, or the judge sua sponte may
raise the issue of a defendant's competency to stand trial any time between the filing of
the charging document and before pronouncement of sentence. If the judge has reason to
believe that the defendant is incompetent to stand trial, the proceedings are suspended
and a competency hearing must be held. K.S.A. 22-3302(1). The party who raises the
issue of a defendant's competency to stand trial has the burden of going forward with the
evidence. The district court measures the evidence presented by a preponderance of the
evidence standard. Barnes, 293 Kan. at 256. Generally, a preponderance of the evidence
means "'"evidence which shows a fact is more probably true than not true."'" State v.
Barlow, 303 Kan. 804, 810, 368 P.3d 331 (2016) (quoting In re B.D.-Y., 286 Kan. 686,
691, 187 P.3d 594 [2008]).
A defendant may raise both procedural and substantive competency claims on
appeal. A procedural competency claim falls under K.S.A. 22-3302 and is generally
based upon the district court's alleged failure to hold a competency hearing or its failure
to hold an adequate competency hearing. A substantive competency claim alleges the
defendant was tried and convicted while, in fact, incompetent. Woods, 301 Kan. at 858.
Here, Stewart makes a substantive competency claim, arguing he was in fact incompetent
to stand trial so that the district court erred when it concluded otherwise.
The defense first raised the question of Stewart's competency in a June 2011
motion seeking to suppress statements Stewart made to detectives during the
interrogation in Wichita. The defense hired Dr. Kathie Nichols, a clinical psychologist, to
assess whether Stewart had knowingly and voluntarily waived his rights under Miranda
v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
20
At a November 2011 suppression hearing, Nichols testified that she administered
the Wechsler Adult Intelligence Scale, Fourth Edition (WAIS-IV) to measure Stewart's
cognitive ability. According to Nichols, Stewart's index score of 70 on the WAIS-IV
subscale measuring verbal comprehension fell within the borderline intellectual
functioning range between low average and mental retardation. Taking into account the
remaining index scores of the WAIS-IV, Nichols determined that Stewart had a full-scale
IQ of 75, placing him on the borderline of cognitive function or in the bottom 5 percent
among his peers. Nichols also found that Stewart met the criteria for PTSD. Nichols
concluded that Stewart could not have knowingly and intelligently waived his Miranda
rights nor adequately asserted his right to an attorney.
The State referred Stewart to Dr. Mitchell Flesher, a clinical psychologist. Flesher
administered two subtests of the Wechsler Individual Achievement Test, Second Edition
(WAIT-II) and found that Stewart had a second grade reading comprehension level and a
listening comprehension corresponding to a fourth grade level. Flesher agreed with
Nichols' scoring of Stewart's borderline IQ. The January 2012 psychological evaluation
report included an Axis I diagnosis of PTSD and Learning Disorder, Not Otherwise
Specified (Verbal), and an Axis II diagnosis for Antisocial Personality Disorder. Flesher,
however, concluded that the evaluations conducted by him and Nichols did not support a
finding that Stewart suffered from a "mental condition" at the time of the interview in
police custody preventing him from knowingly waiving his Miranda rights.
In March 2012, the defense filed a motion under K.S.A. 22-3302(1) requesting a
determination of Stewart's competency to stand trial. The district court ordered an
evaluation to assess Stewart's competency to stand trial and to make or assist in his
defense.
21
Mark Rychlec, a clinical psychologist, interviewed and observed Stewart for
approximately 50 minutes and performed some limited testing (Flostein Mini-Mental
Status Exam) indicating that Stewart had a "moderate cognitive impairment," which
Rychlec believed was "most likely" attributable to a "lower intellectual function as
opposed to neurological impairment." Rychlec concluded that Stewart was competent to
stand trial and did not display "severe cognitive impairment" preventing him from
assisting in his defense. Rychlec's competency evaluation report included the caveat,
"[E]ducation on legal terminology and rehearsals be utilized to assure [Stewart]
understands the material being discussed in the courtroom." Relying on Rychlec's report,
the district court found Stewart competent to stand trial.
In June 2012, the district court granted a request from new attorneys for Stewart
for additional testing by Nichols to aid in Stewart's defense. That same month, the district
court held the continued suppression hearing on the question of whether Stewart had
knowingly and voluntarily waived his Miranda rights. Nichols and Flesher offered
competing testimony as to whether Stewart had such an ability.
In September 2012, the defense moved to reopen the issue of competency and to
commit Stewart to Larned for further testing under K.S.A. 22-3303. The defense
expressed concern with Stewart's ability to assist in his defense and asserted that Nichols
disagreed with Rychlec's conclusions and would testify Stewart was incompetent to stand
trial.
The district court held a hearing to address Stewart's supplemental motion to
determine competency to stand trial. The defense presented Nichols, who testified that,
given her overall diagnoses of Stewart, she did not believe Stewart could understand the
nature of the proceedings against him or aid in his defense. After noting the conflicting
expert opinions of Rychlec and Nichols, the district court ordered Dr. Bascom Ratliff, a
22
social worker for Associates at Hope Harbor, to conduct an independent competency
evaluation of Stewart.
Ratliff interviewed Stewart on at least two occasions and performed verbal and
cognitive testing. Ratliff concluded that Stewart was not competent to stand trial because
Stewart did not understand courtroom procedures due to the cognitive impairment from a
borderline IQ of 75; Stewart's knowledge was limited in assisting with his defense; and
Stewart had been diagnosed with, and suffered from, PTSD.
In October 2012, the district court found Stewart incompetent to stand trial under
K.S.A. 22-3302. The district court ordered Stewart committed to Larned for evaluation
and treatment pursuant to K.S.A. 22-3303(1) for a period not to exceed 90 days and
ordered that the hospital staff submit a written report as to their findings and conclusions
within that 90-day period. The district court filed a subsequent order of committal under
K.S.A. 22-3303(1), directing Stewart to submit to a mental examination under K.S.A. 22-
3219(1) to see if he lacked the mental state required as an element of the alleged offenses.
Larned held Stewart for 90 days for observation and evaluation. At the conclusion
of the evaluation, the Larned team filed a forensic evaluation report with the district court
on January 30, 2013. The Larned report, authored by psychologist Dr. Renee Clarke,
concluded that Stewart was competent to stand trial and that he did not lack the requisite
mental state at the time of the alleged offenses.
The Larned report indicated Clarke administered the Mini-Mental State
Examination-Second Edition (MMSE-2) to assess Stewart's current cognitive state and
the Wide Range Achievement Test-Fourth Edition (WRAT-4) to assess his basic
academic and literacy skills. The report noted that Stewart's scores for both the MMSE-2
and WRAT-4 might have been "depressed" or "impacted" due to a lack of effort. Clarke
23
administered the following battery of tests to determine whether there was evidence of
Stewart malingering: Structured Interview of Reported Symptoms-Second Edition
(SIRS-2), Test of Memory Malingering (TOMM), and Structured Inventory of
Malingered Symptomatology (SIMS). Stewart's responses for the SIRS-2 indicated he
had an increased likelihood of feigning his symptoms and required further evaluation.
Stewart's subsequent scores for the TOMM "rarely" occurred from honest responders
with cognitive impairments and were "common for someone who is intentionally trying
to do poorly" and "suggestive of malingering." His total score for the SIMS was
"significantly elevated above" the recommended cutoff score for suspected malingering.
Clarke also tested Stewart for competency, using the Evaluation of Competency to
Stand Trial-Revised (ECST-R). The Larned report stated that several scales of the ECST-
R "revealed some evidence of feigned incompetency and possible over reporting" and
that the "severe" rating of impairment Stewart received for the Factual Understanding of
the Proceedings scale of the ECST-R was questionable given Stewart's effort in
responding to questions.
The Larned report included Axis I diagnoses of adjustment disorder with
depressed mood, polysubstance dependence, physiological dependence (in a controlled
environment), and malingering. The report also indicated an Axis II diagnosis for
antisocial personality disorder. In discussing the Axis I diagnosis of malingering and its
impact on assessing Stewart, the report summarized,
"Mr. Stewart also meets the criteria for Malingering. He is intentionally
producing false or grossly exaggerated physical or psychological symptoms, motivated
by external intensives such as evading criminal prosecution. Malingering should be
strongly suspected if any combination of the following is noted[:] any sort of mediolegal
[sic] context in their presentation, any marked discrepancy between people's claimed
stress or disability and objective findings, and if a person lacked cooperation during
24
diagnostic evaluation, and the presentation of Antisocial Personality Disorder. Mr.
Stewart meets all of these criteria. . . . Mr. Stewart has been diagnosed with Antisocial
Personality Disorder and on some of the psychological testing [sic] the TOMM, SIMS,
and SIR-2 [sic] it showed Mr. Stewart was malingering.
"Mr. Stewart has also previously been diagnosed with Borderline Intellectual
Functioning with an IQ of 75 on one of his previous competency evaluations. However,
[due] to his malingering and lack of effort it is difficult to assess if Mr. Stewart really
does suffer borderline intellectual functioning. Therefore, it is not diagnosed at this time."
As to the issue of Stewart's competence, the Larned report indicated Stewart was
not exhibiting symptoms during the current evaluation "that significantly impact his
understanding of his current legal circumstances or his ability to assist counsel." The
report also clarified that, despite Stewart's claims at Larned of not knowing information
related to competency, he had demonstrated factual knowledge during two previous
competency evaluations. The report attributed Stewart's claims to his malingering, noting
that Stewart "did not appear to be putting forth his best effort throughout his competency
evaluation, responding I don't know to almost every question." The report recommended
that if Stewart continues to present himself as incompetent to stand trial it should be
"regarded as voluntary and not due to any psychiatric issues." The report concluded that,
"taking into consideration all of the available data, Mr. Stewart fulfills the criteria to be
considered competent to stand trial."
At the March 2013 competency hearing, the defense presented the testimony of
Ratliff. Nichols did not testify. The district court admitted the affidavit and report Nichols
prepared in support of Stewart's September 2012 motion, asking that he be committed to
Larned; neither is in the record on appeal. Flesher, Rychlec, and Clarke testified for the
State.
25
Ratliff testified that he tested Stewart's cognitive level and determined that Stewart
was "borderline functioning and that he was not competent." Ratliff attributed his
conclusion to Stewart's restricted vocabulary, difficulty with being distracted, and
inability to understand certain questions and words. Ratliff disagreed with the
malingering diagnosis from Larned, instead attributing the Larned results to Stewart's
PTSD, or survival instincts from being in a different environment, and Stewart's lower
intellectual functioning. Ratliff opined that Larned's failure to test Stewart for PTSD and
his intellectual functioning made the malingering diagnosis "less valid."
Flesher acknowledged that he did not examine Stewart to test for competency.
Flesher, however, testified that based on his observations during the approximately 3
hour interview, in which Stewart's counsel was present for about an hour, there was no
indication Stewart was unable to assist in his defense. He appeared to understand the role
of an attorney, and he could communicate with his attorney.
Rychlec testified that despite Stewart's moderate cognitive impairment, which he
attributed to lower intellectual functioning, Stewart understood the different roles in the
courtroom and was capable of assisting his attorney with his defense and understood the
process with "a degree of coaching and education on legal terminology."
Clarke testified that Stewart was placed in the group at Larned designed to restore
competency and teach information needed for lower functioning individuals to be
competent to stand trial. Larned did not mandate participation in the group―Stewart
chose to attend 4 of the 10 group lessons and 3 of the 4 individual lessons. Clarke noted
that when Stewart did attend the group sessions he would sit with his head on the table or
sleep, "but he never participated." Clarke stated that she felt it necessary to test Stewart
for malingering given his level of effort and that the subsequent testing indicated Stewart
was feigning a mental disorder and malingering. Clarke testified she did not diagnose
26
Stewart with PTSD because she did not observe those symptoms during the 3-month
observation period, and that because of Stewart's malingering and lack of effort she was
unwilling to evaluate his intellectual functioning. Clarke opined that Stewart was
competent to stand trial and that if Stewart was unable to assist in his defense it would be
"due to his choice."
In April 2013, the district court heard arguments before taking the matter of
competency under advisement. In argument, defense counsel pointed out that despite the
competency concerns that prompted Stewart being sent to Larned, i.e., PTSD and low
intellectual functioning, Larned focused only on whether Stewart was malingering.
Defense counsel asserted that the district court should disregard the Larned report
because Ratliff correctly concluded, that had Larned tested for PTSD and low intellectual
functioning, the results might have explained any concerns about Stewart malingering.
The State argued the evidence clearly supported that Stewart was malingering and,
irrespective of any concern espoused by Ratliff regarding Stewart having "difficulty"
understanding, the proper standard was whether he was "unable" to understand the
proceedings.
The next month, the district court announced its ruling from the bench. In
summarizing the evaluations by the various experts, the district court quoted from the
portion of Rychlec's report discussing the competency interview with Stewart and his
observations:
"'Mr. Stewart understands the nature and purpose of the proceedings against him. He
correctly identified the major participants in the courtrooms and their respective
functions. He stated that he fired his attorney, Angela Keck, which indicated he's aware
that the defense attorney works with him to make a legal defense.
27
"'Mr. Stewart understands the roles of [the] prosecuting attorney and the Judge
that presides over the case. His responses were unsophisticated, but he understands the
difference between a verdict of guilty and not guilty. There are some terms he indicated
he did not understand: Plea Bargain, cross-examine, attorney-client privilege. This
appears to be as a result of Mr. Stewart's lower academic achievement and not the result
of a psychiatric condition. Finally, Mr. Stewart is aware of the importance of displaying
appropriate courtroom behavior.'"
The district court found that Stewart did not have a significant psychiatric
impairment and that Stewart's borderline IQ did not render him incompetent to stand trial.
The district court stated, "There's nothing presented here from all the evaluations . . . that
keeps Mr. Stewart from being able to participate in his own defense and to understand
what he's charged with. . . . The Court thinks he is competent to stand trial." The district
court opined that Rychlec "got it right." Pointing to Rychlec's competency interview with
Stewart, the district court noted that during the interview "Stewart was able to respond to
those questions and make his views felt and the fact that he felt he was relying on self-
defense throughout and that position he held throughout that long interview." The district
court subsequently denied Stewart's June 2011 suppression motion.
Stewart complains that no reasonable judge "would give more weight" to the
opinion of the State's expert from Larned that Stewart was competent to stand trial, when
his own expert witnesses established that Stewart's cognitive level interfered with his
competence to stand trial. But our trial judges are frequently presented with competing
expert opinion testimony, requiring the jurists to assess the credibility of the witnesses
and weigh the conflicting evidence to reach a decision that comports with one opinion
and contradicts the other opinion. We endow our district courts with the authority and
responsibility to make that choice, i.e., to trust one opinion over another. See Hill, 290
Kan. at 370-71 (to extent trial judge trusted opinions originating from Larned team more
than those from defense, "he was entitled to do so"). Moreover, we defer to the district
28
court's decision when it is presented with conflicting evidence on competency. See State
v. Barnes, 263 Kan. 249, 263, 948 P.2d 627 (1997).
Without doubt, Stewart has some level of cognitive impairment because of his low
IQ. But we have never declared that a defendant's low IQ, standing alone, renders a
person incompetent to stand trial. Cf. Atkins v. Virginia, 536 U.S. 304, 318, 122 S. Ct.
2242, 153 L. Ed. 2d 335 (2002) ("Mentally retarded persons frequently know the
difference between right and wrong and are competent to stand trial."). Competency to
stand trial addresses the defendant's ability to understand the charges and proceedings
and/or assist his or her counsel in defending against those charges. See Barnes, 293 Kan.
at 256.
While both defense experts, Nichols and Ratliff, opined that Stewart was
incompetent to stand trial, the State's experts—Flesher, Rychlec, and Clarke—had the
opposite opinion. Flesher testified that Stewart understood the role of an attorney and
could communicate with his attorney and assist in his defense. Rychlec concluded that,
despite Stewart's cognitive impairment, he understood the nature of the proceedings and
different roles in the courtroom and was capable of assisting with his defense. Clarke
found that Stewart did not exhibit any symptoms that impacted his competency to
understand his current legal circumstances or ability to assist his defense, unless he made
the choice not to do so, i.e., unless he was malingering.
Stewart's attempt to pick apart the opinions of the State's experts is simply
unavailing. While Stewart's low IQ score certainly placed his competency to stand trial in
issue, a preponderance of the evidence supported the district court's determination that he
was competent to stand trial. See Barnes, 293 Kan. at 256. The district court acted well
within its discretion when it relied on the opinions of the State's experts, after carefully
weighing the conflicting evidence. It cannot be said that no reasonable person would
29
agree with the district court. See Hill, 290 Kan. at 366-67. Accordingly, the district
court's finding that Stewart was competent to stand trial is affirmed.
BLOOD SPATTER EVIDENCE
Next, Stewart challenges the admissibility of the blood spatter evidence.
Specifically, Stewart argues that the trial judge abdicated his duty to independently
consider and rule on the defense's trial objection to Morris' testimony. Instead, the trial
judge, without any inquiry, blindly adopted the result of a different judge's pretrial ruling
rejecting Stewart's motion seeking a Frye hearing. Stewart requests a remand so that the
district court can hold a Frye hearing. The State disagrees and responds that the trial
judge made a reasonable decision not to reconsider an issue already decided at an earlier
proceeding.
Standard of Review
Because the parties frame this issue differently, they disagree on the appropriate
standard of review. Stewart asks this court to apply the standard of review used to
consider a district court's application of the Frye standard for the admissibility of
scientific evidence, which would be a de novo review. See City of Wichita v. Molitor, 301
Kan. 251, 257, 341 P.3d 1275 (2015) ("[W]hether the district court failed to correctly
apply the Frye standard for the admissibility of scientific evidence is an abstract question
of law subject to de novo review.") (citing Kuhn v. Sandoz Pharmaceuticals Corp., 270
Kan. 443, 455-56, 14 P.3d 1170 [2000]). De novo review is appropriate in such
circumstances "because the outcome of a Frye holding transcends individual cases such
that applying less than a de novo standard could lead to inconsistent treatment of
similarly situated claims." State v. Shively, 268 Kan. 573, 576, 999 P.2d 952 (2000).
30
The State, on the other hand, contends that the abuse of discretion standard is
appropriate because the actual question presented is whether it was reasonable for the
trial judge to decline to reconsider a pretrial ruling by a different judge. We agree.
Stewart does not argue the merits of Judge Tatum's pretrial Frye ruling, but rather
he argues that the trial judge should have reviewed the merits of that prior ruling before
applying it at trial. Stewart asks for a remand for another Frye hearing, not because the
initial ruling on the merits was erroneous, but because of an alleged procedural failure by
the trial court. The reconsideration of earlier pretrial rulings is a matter within the trial
court's broad discretion. Cf. State v. Riedel, 242 Kan. 834, 838, 752 P.2d 115 (1988)
("Reconsideration of earlier pretrial rulings, when necessary to prevent prejudice and
assure the parties a fair trial, cannot be said to be an abuse of the trial court's broad
discretion."). Consequently, we will apply an abuse of discretion standard of review.
"'A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful,
or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact.' State
v. Dobbs, 297 Kan. 1225, 1232, 308 P.3d 1258 (2013) (citing State v. Ward, 292 Kan.
541, 550, 256 P.3d 801 [2011], cert. denied [565 U.S. 1221] [2012]). A defendant bears
the burden to demonstrate the existence of an abuse of discretion. State v. Baker, 297
Kan. 482, 484, 301 P.3d 706 (2013)." State v. Hilt, 299 Kan. 176, 186, 322 P.3d 367
(2014).
One way in which a defendant can demonstrate the existence of an abuse of
discretion is to show that the district court failed to exercise its discretion, either because
it refused to do so or because it failed to discern that it was being called upon to exercise
discretion. Specifically, we have said:
"It is an abuse of discretion for a district court to issue a 'blanket ruling' that disposes of a
discretionary determination automatically without analyzing the factors that would enter
into the discretionary decision; i.e., it is an abuse of discretion to refuse to exercise
31
discretion or fail to appreciate the existence of the discretion to be exercised in the first
place. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 569–70, 232 P.3d 856 (2010).
'A tribunal's failure to exercise its discretionary authority is an abuse of discretion.'
Powell, 290 Kan. 564, Syl. ¶ 5." State v. Horton, 292 Kan. 437, 440, 254 P.3d 1264
(2011).
Analysis
At the time of Stewart's trial, a party offering expert opinion testimony based on
scientific methods or procedures was required to satisfy the Frye test. In re Girard, 296
Kan. 372, 372, 294 P.3d 236 (2013). But cf. L. 2014, ch. 84, § 2 (amending K.S.A. 60-
456(b) with respect to expert testimony on scientific, technical, or other specialized
knowledge). The Frye test required a "showing that the basis of a scientific opinion is
generally accepted as reliable within the expert's particular scientific field." State v.
Shadden, 290 Kan. 803, 819, 235 P.3d 436 (2010). In other words, expert testimony
based upon the results of a new or experimental scientific technique that has not been
generally accepted as reliable should not be admitted into evidence. Kuhn, 270 Kan. at
454 (citing State v. Canaan, 265 Kan. 835, 848, 964 P.2d 681 [1998]). On the other hand,
the requirement that the State undertake the burden to satisfy the Frye test and prove the
reliability of the underlying scientific theory upon which the expert opinion is based
arises "[o]nly when there is a doubt as to the scientific reliability of evidence." Canaan,
265 Kan. at 849.
As noted above, defense counsel's pretrial motion for a Frye hearing sought to
exclude both DNA and blood spatter evidence, and it was argued to Judge Tatum at a
suppression hearing. Defense counsel argued that, although she had seen the State's DNA
evidence and blood spatter analysis, she had not seen the curriculum vitae of the State's
experts to assess their qualifications. Nor had she seen any quality assurance protocol or
standard operating procedures for the laboratory to assess the reliability of the actual
32
testing. The State countered that the defense was confusing the question of the reliability
of the scientific technique involved with the question of whether the general foundational
requirements for admitting expert testimony were present and whether generally accepted
techniques had been performed in a competent manner.
Judge Tatum ruled for the State, noting that DNA evidence and blood spatter
testimony had "been around for a long time" and did not qualify as a "new or
experimental scientific technique." On that basis, the court found that the need for a Frye
test was not triggered. Nevertheless, Judge Tatum said he would keep the issue open in
the event defense counsel obtained information that would permit the defense to argue
something more than it had presented so far. The court ordered the State to provide the
defense with the blood spatter expert's CV, any treatises used by that expert, and the
complete crime lab file.
As related above, new defense counsel advised the trial judge that the defense was
renewing its pretrial objection to the DNA and blood spatter evidence in order to preserve
its challenge with a contemporaneous objection. See K.S.A. 60-404 (contemporaneous
objection rule); State v. King, 288 Kan. 333, 341-42, 204 P.3d 585 (2009) (statutory
contemporaneous objection rule requires timely, specific objection to admission of
evidence at trial in order to preserve issues arising from that admission for appellate
review). The defense offered no new evidence or argument to cast doubt on the scientific
reliability of the techniques, and the trial judge simply adopted "what Judge Tatum had
done in the prior hearings."
Stewart complains that it appeared that Judge Ryan did not know the basis of
Judge Tatum's ruling and simply adopted the same result without any independent
examination of the reasons for the objection. Stewart's argument that he was entitled to
have the trial judge consider the merits of his contemporaneous objection is seductive.
33
Even when an issue has been thoroughly argued and ruled upon prior to trial, this court
will not consider it on appeal if the defendant did not reassert the challenge at trial with a
specific and timely objection. "The purpose of the [contemporaneous objection] rule is to
avoid the use of 'tainted evidence [and thereby] avoid possible reversal and a new trial.'
[Citation omitted.]" State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011). If a
contemporaneous trial objection to a pretrial ruling is deemed necessary to avoid the
reversible admission of tainted evidence, a corollary to the rule would logically require
the trial judge's informed decision on the merits of the objection. Otherwise, without an
actual reconsideration of the pretrial ruling, the contemporaneous objection rule would
not accomplish our stated purpose.
Moreover, if we invest the trial judge with discretion to determine whether expert
testimony is admissible, the failure to exercise that discretion is erroneous. But even if we
determine here that Judge Ryan should have exercised his discretion by ruling on the
merits of Stewart's objection, rather than automatically adopting the result of the prior
ruling without further analysis, Stewart cannot get the relief he seeks.
The defense attorney filing the motion for a Frye hearing appeared to concede that
DNA testing and blood spatter analysis were not new or experimental techniques and
made no other credible argument that would trigger the need for a hearing on the
scientific bona fides of those accepted techniques. Nevertheless, Judge Tatum left the
door open for the defense to make a colorable claim for a Frye hearing, after receiving all
of the pertinent information. Yet, at trial, defense counsel did not proffer any additional
evidence or argument challenging Judge Tatum's ruling that DNA testing and blood
spatter analysis had been around a long time and had been generally accepted practices in
his court. Moreover, on appeal, Stewart makes no attempt to explain the error in Judge
Tatum's ruling that the defense had not shown why Frye testing of well-established
procedures was necessary. Consequently, on the record before us, any abuse of discretion
34
by the trial judge in failing to independently consider the merits of Stewart's objection is
harmless.
CUMULATIVE ERROR
Finally, Stewart argues that his convictions should be reversed based on the
cumulative effect of the individual trial errors he alleged on appeal. Even if no individual
trial error is sufficient to support reversal of a defendant's conviction, the cumulative
effect of multiple errors may be so great as to require reversal. State v. Warren, 302 Kan.
601, 620, 356 P.3d 396 (2015).
Above, we acknowledged that the record suggested the possibility that the trial
court abused its discretion by failing to rule on the merits of the defense objection to
testimony about DNA and blood spatter. We also noted that any shortcoming in the jury
instruction on the force element of robbery was invited by the defense. But even if we
treat those two circumstances as multiple trial errors, a reversal is not appropriate in this
case. When faced with a cumulative error claim, this court conducts an unlimited review
of the entire record to determine whether the totality of the circumstances establishes that
the cumulative effect of trial errors substantially prejudiced the defendant and denied the
defendant a fair trial. State v. Smith, 296 Kan. 111, 134, 293 P.3d 669 (2012). The errors
in this case did not produce that level of prejudice, and reversal is not required.
Affirmed.
35