State v. Suiter

NOT DESIGNATED FOR PUBLICATION
No. 120,990
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
AARON RAY SUITER,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed December 18,
2020. Affirmed.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ATCHESON, P.J., SCHROEDER and WARNER, JJ.
PER CURIAM: After a night of drinking, Aaron Suiter got into a heated argument
with his girlfriend, Bryena McQuitty. When Suiter awoke the next morning, he found
McQuitty dead in bed next to him, apparently strangled. Because Suiter had been
intoxicated the night before, he did not remember significant portions of what had
happened, including the killing.
1
A jury convicted Suiter of second-degree murder. He now appeals that conviction,
claiming various evidentiary rulings, individually or in combination, deprived him of a
fair trial. After carefully considering the record and the parties' arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Late on the evening of November 25, 2017, Suiter and McQuitty went to a local
Wichita bar. When the bar closed around 2 a.m. the next morning, Suiter had already left.
McQuitty, who received a ride from acquaintances, returned home around 2:30 a.m. and
began looking for Suiter. At some point, at McQuitty's request, Suiter's roommate called
Suiter to find out where he was; Suiter, who sounded out of it, stated he was at the corner.
Suiter eventually came home between 5 and 5:30 a.m., and he and McQuitty began
yelling at each other. After several minutes, the yelling subsided.
At about 10:30 a.m., Suiter frantically knocked on a neighbor's door. Suiter told
the neighbor that McQuitty was not breathing and asked him to call 911. When
emergency personnel arrived, they determined McQuitty was dead and likely had been
for quite some time. Wichita police noted bruising around her neck; a subsequent autopsy
indicated she had been strangled. Suiter had scratches on his neck; later DNA tests of
swabs taken from McQuitty's fingernails and neck were consistent with Suiter's DNA.
Later that morning, police took Suiter to the Wichita Police Department and
placed him in an interrogation room for an interview. Suiter was only wearing his
underwear when he was taken into custody, though a police officer gave him a blanket to
wrap himself. After about 3-1/2 hours, during which Suiter largely slept on the floor and
was periodically checked on by officers, a detective interviewed him. Suiter waived his
Miranda rights and agreed to speak. He explained that he had quite a bit to drink at the
bar, left McQuitty before the bar closed, began walking home, and stopped at a gas
station to warm up, but he could not remember leaving the gas station or returning home.
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Suiter's next memory was of waking up next to McQuitty and going to his neighbor's
house for help. Suiter also made several inculpatory statements during the interview,
stating that although he did not remember a fight, he must have been the one who killed
McQuitty.
The State charged Suiter with first-degree murder. Three motions—one by Suiter
and two by the State—are relevant to this appeal:
• Suiter moved to suppress post-Miranda statements, claiming they were not
voluntary.
• The State sought to admit testimony of Suiter's prior physical abuse of McQuitty
under K.S.A. 60-455—one incident when he had hit her in the face and one when
he had attempted to strangle her.
• At trial, the State sought to prevent Suiter's expert—Dr. Mark Goodman, a clinical
psychologist—from testifying about whether Suiter's intoxication prevented him
from intentionally committing the crime.
The court denied Suiter's suppression motion and granted both requests by the
State. It ruled that Suiter's post-Miranda statements were freely given and admissible;
found the State's proposed prior abuse testimony admissible under K.S.A. 60-455; and
allowed Suiter's expert to testify about the effects of alcohol on a person's cognitive
ability but did not permit the expert to opine on whether Suiter intentionally killed
McQuitty, finding such testimony would exceed the expert's demonstrated knowledge
and invade the jury's role as fact-finder.
At trial, Sergeant Christian Cory, the former detective who Mirandized and
interviewed Suiter, described the interview. And three police officers and a neighbor
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testified about two prior incidents of abuse against McQuitty. Suiter's defense focused on
how his intoxication impacted his ability to intentionally kill McQuitty, and his expert
witness described the effects of alcohol and alcohol-induced blackouts. At the end of the
presentation of evidence, the court instructed the jury on first-degree murder and on the
lesser-included offenses of second-degree murder and voluntary manslaughter. The court
also provided a voluntary intoxication instruction and gave a limiting instruction
regarding the K.S.A. 60-455 evidence.
The jury found Suiter guilty of second-degree murder, and the court subsequently
imposed a 226-month prison sentence. Suiter appeals.
DISCUSSION
Suiter raises four arguments on appeal, all of which involve evidentiary rulings by
the district court. He argues the court erred in allowing inculpatory and involuntary post-
Miranda interview statements to be admitted. He also argues the court improperly found
prior instances of domestic abuse were admissible under K.S.A. 60-455. And he argues
the court erred by limiting the scope of his expert's testimony. Finally, he argues that
even if these errors individually do not require reversal, the combined effect of these
rulings denied him a fair trial.
1. Suiter's post-Miranda interview statements were voluntary and admissible.
During his police interview, Suiter made several comments to Sergeant Cory
indicating that he probably killed McQuitty. He asserts that the district court erred when
it denied his motion to suppress evidence of those statements. Suiter argues several
factors indicate his confession was involuntary: his drinking the night before, his distress
and state of undress, and his inability to communicate with McQuitty's family. After
considering the totality of the circumstances, we find his statements were voluntarily
given.
4
The Fifth Amendment to the United States Constitution, made applicable to the
states under the Fourteenth Amendment, protects an individual's right against self-
incrimination. State v. R.W., 58 Kan. App. 2d 135, Syl. ¶ 1, 464 P.3d 27, rev. denied 312
Kan. ___ (August 26, 2020). A coerced confession runs afoul of that right and is
therefore inadmissible. State v. Palacio, 309 Kan. 1075, Syl. ¶ 4, 442 P.3d 466 (2019).
"A confession is coerced—and inadmissible at trial—when a defendant's 'will was
overborne.'" R.W., 58 Kan. App. 2d at 144 (quoting Yarborough v. Alvarado, 541 U.S.
652, 667-78, 124 S. Ct. 2140, 158 L. Ed. 2d 938 [2004]).
Whether a confession is coerced turns primarily on its voluntariness—that is,
"'whether the statement was the product of the free and independent will of the accused.'"
R.W., 58 Kan. App. 2d at 144 (quoting State v. Groschang, 272 Kan. 652, 662, 36 P.3d
231 [2001]). The State bears the burden of demonstrating by a preponderance of the
evidence that a confession was voluntary. State v. Gilliland, 294 Kan. 519, Syl. ¶ 3, 276
P.3d 165 (2012). When making this determination, district courts rely on a nonexclusive
list of factors, including:
"(1) the accused's mental condition; (2) the duration and manner of the interrogation; (3)
the ability of the accused on request to communicate with the outside world; (4) the
accused's age, intellect, and background; (5) the fairness of the officers in conducting the
interrogation; and (6) the accused's fluency with the English language." 294 Kan. 519,
Syl. ¶ 3.
Courts' voluntariness analysis thus considers the totality of the circumstances under
which a statement was given. 294 Kan. 519, Syl. ¶ 3. This analysis does not merely tally
the factors; rather, the court must determine each factor's appropriate weight. One
particularly weighty factor, whether independently or when combined with others, may
support a finding that a statement was involuntarily given. 294 Kan. 519, Syl. ¶ 4.
5
Appellate courts apply a bifurcated standard when reviewing a district court's
voluntariness determination. We review the underlying facts for substantial competent
evidence but analyze the ultimate voluntariness determination de novo. State v.
Randolph, 297 Kan. 320, 326-27, 301 P.3d 300 (2013). But we do not reweigh the
evidence or resolve conflicting evidence. And our vantage point on appeal does not allow
us to make credibility determinations. 297 Kan. at 327.
After reviewing a recording of the interview, summarizing relevant portions of the
recording in some detail, and reviewing the voluntariness factors listed above, the district
court found Suiter's statements were voluntary. It noted that although Suiter was
distraught when first taken to the interview room, he was well-behaved and cooperative
when the interview began. While there was a long initial wait, the actual interview was
relatively short and conducted in a respectful manner. The court found that it was not
unreasonable for the officers to deny Suiter's request to contact McQuitty's family, given
the ongoing investigation. And it found Suiter conducted himself in an appropriate
manner given his age, intellect, and background; the interview was fair and respectful;
and Suiter spoke and understood English.
On appeal, Suiter contends that his mental state, the interrogation's duration, and
his inability to communicate with the outside world rendered the statement involuntary.
He argues that his mental state was not amenable to a voluntary statement: he had been
drinking the night before, appeared to either retch or vomit multiple times into a trash can
in the interrogation room, and was crying and wailing while waiting. As to the duration
of the interview, he points out that he waited by himself for 3-1/2 hours in the
interrogation room before the interview began, during which he only wore his underwear
and was wrapped up in a blanket. And finally, he again points out that police did not
allow him to speak to McQuitty's family.
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Our review of the recording of the interview shows that the district court's factual
findings are supported by substantial competent evidence. And based on the totality of
the circumstances, the district court did not err in concluding Suiter's statements were
voluntary. Although he had been drinking the night before, Suiter's interactions with
police during the interview do not indicate that either alcohol or grief rendered him
incapable of speaking or understanding others. While he was very distressed and retched
multiple times while waiting, the duration of that initial wait appears to have allowed him
to calm down and sleep off some of the effects of the alcohol. We observe that Suiter had
calmed down significantly by the time he was interviewed. And though he was taken to
the police station in his underwear (and provided a blanket), this condition did not appear
to prevent him from engaging in conversation with Sergeant Cory or answering his
questions.
Nor was the interview unduly long. Though he initially waited for 3-1/2 hours,
given Suiter's initial distress, that time and the officers' actions to make him more
comfortable allowed him to collect himself, improving his mental state. The following
interview—a collective 75 minutes across three meetings interspersed by a collective 95
minutes of breaks—was not unduly lengthy. He behaved appropriately, and the interview
was not conducted in a forceful or intimidating manner.
Finally, like the district court, we do not believe that the officers' refusal to allow
Suiter to call his or McQuitty's family—and particularly McQuitty's mother—rendered
his interview involuntary. We note that while Suiter mentioned his family at one point,
the focus of his efforts was to contact McQuitty's, not his, family members. Our Kansas
Supreme Court has recognized that while isolation from the outside world is one of the
factors we consider in determining whether an interview was coerced, "it is to be
expected that police will take steps to limit the ability of potential witnesses and suspects
to communicate and, potentially, conspire during an investigation." State v. Walker, 283
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Kan. 587, 598, 153 P.3d 1257 (2007). Suiter's interview and resulting statements were
not made involuntary by the officers' refusal to allow him to speak to the victim's family.
The totality of the circumstances demonstrate that Suiter's post-Miranda
statements were voluntarily made. The district court did not err when it denied Suiter's
pretrial motion to suppress and allowed Sergeant Cory to testify about those statements at
trial.
2. The district court did not abuse its discretion when it found that the probative
value of the State's K.S.A. 60-455 evidence outweighed its potential for undue
prejudice.
Suiter argues the district court erred by permitting evidence of two prior instances
of physical abuse against McQuitty under K.S.A. 60-455. Notably, he does not challenge
the district court's finding that this evidence was relevant to prove disputed material facts
in the case. Rather, he challenges the district court's assessment of the accompanying
prejudice, arguing the court erred when it found the probative value of the evidence did
not outweigh its potential for undue prejudice.
K.S.A. 2019 Supp. 60-455(a) prohibits the introduction of a person's prior crimes
or other bad acts as a basis for inferring that a person has a criminal disposition and,
therefore, likely committed another crime. But under K.S.A. 2019 Supp. 60-455(b), prior
crimes or other wrongs may be admissible to prove other material facts, such as a
person's intent, or plan, or the absence of a mistake. State v. McCune, 299 Kan. 1216,
Syl. ¶ 2, 330 P.3d 1107 (2014).
Courts engage in a multi-step analysis when determining whether evidence is
admissible under K.S.A. 2019 Supp. 60-455(b). 299 Kan. 1216, Syl. ¶ 1. This includes
three determinations:
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• whether the evidence is material to prove a disputed fact—that is, whether the
evidence goes to intent, absence of mistake, or another fact and has a real bearing
on the case;
• whether the evidence is probative of the disputed material fact—that is, the
evidence tends to prove the disputed fact; and
• whether the probative value outweighs the potential of creating undue hardship or
prejudice.
State v. Seacat, 303 Kan. 622, 631, 366 P.3d 208 (2016); State v. Hart, 297 Kan. 494,
511, 301 P.3d 1279 (2013). If the evidence is admitted, the court must also instruct the
jury on the limited basis for which the evidence may be considered. 297 Kan. at 511.
Though appellate courts review the first step in this analysis—materiality—de
novo, we review the district court's assessment of the probative value of the evidence and
its weighing that probity against undue hardship for an abuse of discretion. 297 Kan. at
511. A court abuses its discretion when its decision is based on a factual mistake, a legal
mistake, or when no reasonable person would agree with the decision. Seacat, 303 Kan.
at 634-35.
Before trial, the State filed a motion seeking a determination on the admissibility
of evidence involving two prior instances of violence between Suiter and McQuitty.
These included (1) an October 2015 incident when, after an argument, police found
McQuitty with a swollen face and potentially a broken nose and Suiter with a stab wound
in the chest, and (2) a November 2016 incident when, after a night of drinking, Suiter
became angry and hit and choked McQuitty. After considering both parties' arguments,
the district court found that the evidence was relevant to prove material facts of intent,
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knowledge, motive, and opportunity. And the court found that the relevance of the
evidence of these prior instances was not unduly prejudicial.
At trial, Sergeant Cory testified that during his interview, Suiter indicated that
there were two prior instances when he had been violent with McQuitty, including one
incident when Suiter had choked her. Later in the trial, the State called four witnesses—
three Wichita Police officers and a neighbor—to testify about those previous instances
when Suiter had physically abused McQuitty. The State also used the witnesses to admit
photographs of the injuries.
Suiter only objected to Sergeant Cory's testimony based on the voluntariness of his
statement; he did not object to the testimony regarding prior violent incidents between
himself and the victim. He did object to the testimony of the other witnesses and the
admission of the photographs. At the close of the trial, the court instructed the jury that
the evidence of the prior altercations could be considered only for the limited purposes of
assessing Suiter's intent and plan, as well as evidence of Suiter and McQuitty's discordant
relationship.
On appeal, Suiter does not dispute the district court's ruling that the evidence of
the earlier violent incidents was relevant to prove disputed material facts. Nor does he
challenge the court's limiting instruction. Instead, he challenges the court's weighing of
the evidence's probative value against its potential for prejudice. He argues the evidence's
admission painted him as a serial abuser, resulting in the jury discounting his intoxication
defense and providing it an incentive to convict him for these prior acts.
As a preliminary matter, the State argues that Suiter cannot challenge the
introduction of this evidence on appeal because he failed to object to Sergeant Cory's
initial testimony. It asserts that once this testimony was given, the evidence was before
the jury—regardless of the other four witnesses' later testimony.
10
It is true that a party must timely object for a court to overturn a verdict based on
the improper admission of evidence. See K.S.A. 60-404. And even when a court has
taken up the admissibility of certain evidence in a pretrial motion, a party must generally
object to the admission of that evidence at trial to preserve the issue for appellate review.
State v. Solis, 305 Kan. 55, Syl. ¶ 1, 378 P.3d 532 (2016); see also State v. Holman, 295
Kan. 116, Syl. ¶ 1, 284 P.3d 251 (2012) (applying rule to K.S.A. 60-455 challenge),
overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016).
Though Suiter did not object to Sergeant Cory's summary of Suiter's previous
violent acts, most of the evidence involving the incidents—including photographs of
McQuitty's injuries—was introduced through the later testimony of the three other police
officers and neighbor. We do not agree with the State that the introductory explanation
provided by Sergeant Cory, even without an objection, opened the door to the detailed
testimony these other witnesses provided, the sole point of which was to discuss the
earlier altercations, or the photographs of McQuitty's previous injuries. Thus, we find that
under these circumstances, the issue is properly before us.
We thus turn to whether the district court abused its discretion when it found that
the probative value of this evidence outweighed its potential for undue prejudice. Courts
have long recognized that this type of weighing is a matter we entrust to "the district
court's sound judgment." United States v. Abel, 469 U.S. 45, 54, 105 S. Ct. 465, 83 L. Ed.
2d 450 (1984). This is "particularly true" when it comes to the "'on-the-spot balancing of
probative value and prejudice, potentially to exclude as unduly prejudicial some evidence
that already has been found to be factually relevant.'" Sprint/United Management Co. v.
Mendelsohn, 552 U.S. 379, 384, 128 S. Ct. 1140, 170 L. Ed. 2d 1 (2008) (quoting 1
Childress & Davis, Federal Standards of Review § 4.02 [3d ed.1999]). Because this
weighing does not require fact findings or legal determinations, we only reverse the
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district court's assessment when no reasonable person would take the view it adopted. See
State v. Miller, 308 Kan. 1119, 1138, 427 P.3d 907 (2018).
Our review of the record and the court's reasoning shows that the district court did
not abuse its discretion when it found the relevance of this evidence outweighed its
potential for undue prejudice. The November 2016 incident was certainly probative of the
facts surrounding McQuitty's death; both incidents involved arguments that arose after
Suiter had been drinking, and both ended with Suiter choking (or strangling) McQuitty.
The October 2015 incident was perhaps less probative; it occurred more than two years
earlier, no evidence indicates either Suiter or McQuitty had been drinking, and the
method of harm was different. But it establishes a history of arguments escalating to
violence, consistent with the State's theory as to the events that led to McQuitty's death.
While the photographs of the injuries increased the prejudice, reasonable people could
disagree about whether the evidence's probative value outweighed its potential for undue
prejudice. Given this potential for disagreement, the district court did not abuse its
discretion in admitting evidence of prior instances of abuse.
And even if we were to conclude that this evidence should not have been admitted,
Suiter has not convinced us that it affected the outcome of his trial. Courts apply the
statutory harmless error standard to the erroneous admission of K.S.A. 60-455 evidence.
State v. Torres, 294 Kan. 135, 143-44, 273 P.3d 729 (2012). Suiter argues introduction of
this evidence was not harmless because it was highly prejudicial and caused the jury to
convict him based on this past conduct. We note, however, that Suiter did not object
when Sergeant Cory testified that Suiter himself had brought up the previous incidents
during his interview. More importantly for purposes of a harmless-error analysis, Suiter's
primary defense at trial was that he could not have formed the requisite intent to kill
McQuitty, and evidence presented at trial indicated that he did.
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Suiter told Sergeant Cory during the interview that he likely was the person who
killed McQuitty. And the form of death—strangulation—suggests that a killing was
intentionally performed. See Solis, 305 Kan. at 67. The fact that the jury convicted Suiter
of second-degree murder, a lesser-included offense, shows the jury did not merely
convict him due to the prior instances of abuse but rather carefully considered the
evidence. Under these circumstances, we find there is no reasonable probability that the
admission of the State's K.S.A. 60-455 evidence affected the trial's outcome.
The district court did not err—and certainly did not commit reversible error—
when it admitted evidence of the two prior violent arguments between Suiter and
McQuitty.
3. The court did not err when it ruled that Suiter's expert witness could not provide
an opinion as to whether Suiter could form the intent to kill while intoxicated.
Suiter argues the district court erred by restricting the testimony of his expert, Dr.
Goodman. Suiter hired Goodman to determine if Suiter's intoxication prevented him from
forming the requisite intent to kill McQuitty. In his report, Goodman opined Suiter likely
could not form that intent; he based this conclusion on Suiter's statement that he could not
remember what happened and on various videos and transcripts in which others stated
Suiter would black out and lose his memory when drinking. At trial, Suiter intended to
call Goodman to testify about several matters, including alcohol-induced blackouts
generally and whether Suiter could have intentionally killed McQuitty during a blackout.
The court allowed Goodman to testify about the former but ruled that any opinion on
Suiter's ability to form the requisite intent would exceed the expert's ability to testify and
invade the jury's fact-finding role.
As part of the fundamental right to a fair trial, a defendant is entitled to present a
theory of defense. Holman, 295 Kan. 116, Syl. ¶ 5. A court violates that fundamental
right by excluding relevant, admissible, and noncumulative evidence vital to that defense.
13
But that right is not unlimited; evidence must conform with statutory requirements. 295
Kan. 116, Syl. ¶ 5. An expert may offer an opinion if doing so would help the jury and
the testimony is based on sufficient facts, reliable principles and methods, and the reliable
application of those principles and methods to the facts of the case. K.S.A. 2019 Supp.
60-456(b). If those conditions are met, an expert opinion is not objectionable merely
because it embraces an ultimate issue to be decided. K.S.A. 2019 Supp. 60-456(d).
Suiter frames this issue as a denial of his fundamental right to present a defense,
which appellate courts review de novo. See State v. Suter, 296 Kan. 137, Syl. ¶ 4, 290
P.3d 620 (2012). But this issue turns on whether the district court properly limited the
extent of the expert's testimony given our rules of evidence—questions we review for an
abuse of discretion. See State v. Shadden, 290 Kan. 803, Syl. ¶ 10, 235 P.3d 436 (2010).
As Suiter notes, Goodman's testimony is not objectionable merely because it
embraces an ultimate issue. Unlike their federal counterpart, the Kansas Rules of
Evidence do not prohibit testimony on whether a person possessed a specific mental state.
Compare K.S.A. 2019 Supp. 60-456(d) with Fed. R. Evid. 703(b). If an expert's
testimony meets the requirements of K.S.A. 2019 Supp. 60-456(b), that testimony is
admissible up to the point where the opinion requires passing on the credibility of a
witness or the weight of disputed evidence. State v. Horton, 300 Kan. 477, Syl. ¶ 3, 331
P.3d 752 (2014).
Goodman's testimony about Suiter's intent was inadmissible because Goodman
omitted a critical step: establishing the relationship between alcohol-induced blackouts
and the ability to form a specific degree of intent. At trial, Goodman discussed alcoholic
blackouts, explaining that drinking excessive amounts of alcohol may result in memory
loss. But there is no discussion, either in Goodman's report or his trial testimony, linking
blackouts with the inability to form a certain mental state. In other words, it does not
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necessarily follow that if intoxication interferes with a person's memory, then that person
could not have acted intentionally while intoxicated.
Goodman could have opined that Suiter experienced an alcoholic blackout:
Goodman explained the basis for alcoholic blackouts; Suiter had been drinking and could
not remember what had happened; and others stated this occurred when he drank. But
without making the connection between alcoholic blackouts and the ability to form intent,
the next step—that because Suiter experienced a blackout, he could not have intentionally
killed McQuitty or strangled her with the intent to kill her—lacks support.
Even had Goodman presented a link between alcohol-induced blackouts and the
ability to form intent, the State notes that any hypothetical he could answer would be
based on insufficient facts and thus could not have been helpful to the jury in determining
whether Suiter could have intentionally killed McQuitty. Goodman had no information
regarding how many alcoholic beverages Suiter had consumed, when he had consumed
them in relation to the argument with McQuitty, and what effect this level of alcohol
consumption would have had on his ability to form the intent to act. See Staudinger v.
Sooner Pipe & Supply Corp., 208 Kan. 100, 101-02, 104-07, 490 P.2d 619 (1971)
(district court did not abuse its discretion when sustaining objections to hypotheticals
posed to an expert to ascertain how intoxicated a driver had been during a car accident
because hypotheticals concerning intoxication must include the person's age and weight,
the amount of food eaten, the number and strength of drinks consumed, and the period
over which these drinks were consumed).
The district court did not abuse its discretion when it prevented Goodman from
testifying about whether Suiter could form the requisite intent to kill McQuitty.
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4. Suiter has not shown cumulative errors.
Finally, Suiter argues that cumulative errors deprived him of a fair trial. Under a
cumulative-error analysis, appellate courts determine whether, under the totality of the
circumstances, the defendant was deprived of a fair trial. State v. Harris, 310 Kan. 1026,
1041, 453 P.3d 1172 (2019). To make that assessment, we consider all errors found in the
context of the entire record. 310 Kan. at 1041.
A claim of cumulative error necessarily requires the existence of more than one
error. State v. Gonzalez, 307 Kan. 575, 598, 412 P.3d 968 (2018). Here, we have found at
most one possible error in the court's weighing of the K.S.A. 60-455 evidence and
concluded that error did not affect the outcome of Suiter's trial. As such, Suiter's claim of
cumulative error fails as a matter of law.
Affirmed.
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