State v. Smith

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,573

STATE OF KANSAS,
Appellee,

v.

ALLEN DALE SMITH,
Appellant.


SYLLABUS BY THE COURT

1.
Under the 2008 version of K.S.A. 60-455, evidence of other uncharged crimes was
admissible only if (1) the evidence was relevant to prove a material fact; (2) the material
fact was disputed; and (3) the probative value of the evidence was not substantially
outweighed by the risk of undue prejudice. An appellate court reviews a district judge's
materiality determination de novo. It applies an abuse of discretion standard of review on
the existence of probative value and the weighing of it against the potential for undue
prejudice. The district judge also must have given a limiting instruction to ensure the jury
considered the evidence only for the specific reason or reasons it was admitted.

2.
Three other uncharged burglaries were admissible in a defendant's prosecution for
a fourth burglary and the murder of the burglarized home's resident as all of the
burglaries shared a characteristic unique to the defendant's participation with a State
witness: theft of credit cards. The K.S.A. 60-455 evidence of the three uncharged
burglaries to which the defendant had confessed was probative of the defendant's identity
as the accomplice in the fourth charged burglary when he asserted an alibi defense.
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3.
The district judge did not abuse his discretion in weighing the probative value of
evidence of three uncharged burglaries in a prosecution for a fourth burglary and the
murder of the burglarized home's resident against the risk of undue prejudice. The three
burglaries to which the defendant had confessed were temporal bookends to the charged
crimes, and the defendant asserted an alibi defense to the fourth burglary. In addition,
there was nothing extraordinarily brutal about any of the three other burglaries that might
have distracted the jury from its task of deciding guilt on the charged crimes.

4.
A K.S.A. 60-455 limiting instruction that tells the jury it may consider the
admitted evidence of uncharged crimes solely "on the issue of identity" rather than
"solely for the purpose of proving the defendant's identity" is not erroneous, much less
clearly erroneous.

5.
A district judge does not err in giving a cautionary accomplice witness instruction
in a case in which an accomplice testifies, even when a defendant seeks to omit it on the
ground that it creates a negative inference about the trustworthiness of the testimony of
other witnesses such as jailhouse informants.

6.
A prosecutor is permitted during closing argument to invite the jury to examine
and analyze the evidence before it and to focus on inconsistencies beyond various stories
told by a defendant. The prosecutor may not make a golden rule argument, appeal to the
jurors' sympathy, or shift the burden of proof to the defense.

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7.
During closing argument, a prosecutor may not claim sole possession of the
"truth." Doing so repeatedly is error and must be analyzed for harmlessness under both
the standard set forth in K.S.A. 60-261 and that in Chapman v. California, 386 U.S. 18,
22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Given abundant evidence against the
defendant in this case, the prosecutor's error is not reversible.

8.
The existence of only one trial error makes the doctrine of cumulative error
inapplicable.

9.
In Kansas, a defendant's convictions and sentences for both felony murder and the
underlying felony of aggravated burglary are not multiplicitous.

Appeal from Douglas District Court; MICHAEL J. MALONE, judge. Opinion filed December 21,
2012. Affirmed.

Adam M. Hall, of Collister & Kampschroeder, of Lawrence, argued the cause and was on the
briefs for appellant.

Charles E. Branson, district attorney, argued the cause, and Patrick J. Hurley, assistant district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: In this direct appeal from his jury convictions for aggravated burglary
and felony murder, defendant Allen Dale Smith argues that the district judge erred in
admitting evidence of other crimes and in giving a cautionary accomplice witness
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instruction over a defense objection. He also asserts that he is entitled to reversal of his
convictions because of prosecutorial misconduct. To the extent any one of these errors is
not enough on its own to require reversal, Smith invokes the cumulative error doctrine.
He also challenges his convictions and sentences as multiplicitous.

Although we hold that the prosecutor's repeated references to the "truth" during
closing argument did constitute misconduct, we are not persuaded that reversal of Smith's
convictions is required. Moreover, under our precedent, there is no merit to his
multiplicity argument. We therefore affirm his convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

On April 29, 2005, 77-year-old Clarence "David" Boose was found dead on his
kitchen floor, the victim of a gunshot wound to the back of the head. His Douglas County
home appeared to have been burglarized.

John Lewis, then a detective with the Lawrence Police Department, testified that
police initially had no leads on the murder, but they were investigating several other
burglaries in the area.

On May 7, 2005, Smith turned himself in at the Shawnee County Sheriff's
Department. He had outstanding warrants and was being sought for a burglary in
Pottawatomie County. He told police that his cousin, Leonard Price, had told him that he,
Price, shot someone during a burglary in Douglas County. Smith confessed to being
involved with Price in other burglaries in surrounding counties, including burglaries
occurring on April 25, 26, and May 3, 2005, i.e., within a few days before and after the
Boose burglary and murder.

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Smith was interviewed by law enforcement eight times from May 7 to October 31,
2005; only during the last two interviews was he treated as a suspect. Although his story
changed from interview to interview, he never admitted to being involved in the Boose
burglary and murder.

For his part, Price had fled the state and was picked up in Nebraska on May 9,
2005. He refused to talk with authorities at first but changed his mind in August 2005. At
that time, he did not confess to being involved in the Boose burglary and murder; instead,
he implicated Smith and Smith's brother, Scott. When interviewed again in October 2005,
Price confessed that he and Smith had committed the Boose burglary together; he said
that Smith had shot Boose. Price eventually pleaded guilty to felony murder as a result of
the Boose crimes.

Smith was charged with first-degree murder of Boose and aggravated burglary of
the Boose home.

The State filed a pretrial motion to admit K.S.A. 60-455 evidence of the April 25,
26, and May 3, 2005, burglaries committed by Smith and Price and to which Smith had
confessed. The State argued that the three other burglaries were relevant to establish
identity, plan, preparation, intent, and motive. Smith opposed the motion. The district
court judge concluded that the evidence was admissible, but only as relevant to identity.

Smith's first trial ended with a hung jury. During his retrial in November 2008,
Smith's counsel adequately preserved the K.S.A. 60-455 issue for this appeal by lodging
contemporaneous objections during the testimony of witnesses and by seeking and
obtaining a continuing objection.

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The facts relating to the three other burglaries came in through Price's testimony as
well as through the testimony of officers from the counties in which the burglaries
occurred. The officers relied on their investigations and on their interviews with Smith.
The details of the burglaries included the following:

On April 25, 2005, Smith and Price drove from Topeka to Meriden in Jefferson
County. They stopped at the home of John and Patricia Wellborn. No one was home.
They broke in and ransacked the home, taking various personal items—checks, food,
power tools, a compound bow, and a shotgun—and loaded them into the trunk of Price's
car. They drove to Price's camper in Topeka and unloaded the items. Price testified that
Smith cashed a forged check stolen from this home. Troy Frost of the Jefferson County
Sheriff's Department testified about Smith's confession to the burglary and the details of
the forged check investigation. According to Frost, it was not difficult to determine who
had forged and cashed the stolen check: Smith had provided his name, Social Security
number, and driver's license number; and he was identifiable on the bank's surveillance
video.

On April 26, 2005, Smith and Price drove to the home of Andrea Rolfe and Travis
Greene, which was in or near Holton in Jackson County. No one was home. Price used a
shotgun to break in by shooting the door at its locking points. The cousins took personal
checks and a card they thought was worth $1,000. Other stolen items included tools; a
DVD player; a game station; horse saddles; and several guns, including a black powder
cap-and-ball .45 six-shot revolver. Again, they unloaded these items at Price's camper.
Thomas Drewel, Jr., formerly with the Jackson County Sheriff's Department, testified
about his interview of Smith regarding this burglary. Smith told Drewel where many of
the stolen items ended up, and these leads checked out. Smith also told Drewel that Price
shot a hole in the floor of the home while trying to load a shotgun.

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On May 3, 2005, Price and Smith drove to Wamego in Pottawatomie County,
specifically to the home of Chris and Diana Umscheid. No one was home. While Price
and Smith were loading Price's truck, Diana's brother drove by, saw Price's truck, and,
knowing the Umscheids were not home, stopped to talk to Price and Smith about what
they were doing. Price and Smith began shooting at the brother, who sped away. The
items stolen from the Umscheids included financial instruments, guns, canned goods,
jewelry, a four-wheeler, and a washer and dryer. Again, Price and Smith took the
property to Price's camper. Bradley Rose of the Pottawatomie County Sheriff's
Department investigated and interviewed Smith about this burglary. Rose testified that
Smith became a suspect because of the similarity between this crime and other burglaries.
He testified it was "uncommon" to have a burglary in which the victim's house was "tore
up like that." During the interview, Smith first denied that he had fired at the man who
stopped by, but he eventually admitted he had fired a few rounds. Smith also discussed
where he and Price had unloaded the stolen items and where they could be found.
According to Rose, Smith wanted to pursue a deal on the burglaries in exchange for
information about the murder in Douglas County.

Boose's long-time girlfriend also testified at Smith's retrial. She said that the last
phone message she had received from Boose was at 1:25 p.m. on April 29, 2005. When
she did not hear from him for the rest of the afternoon and was unable to get hold of him
that evening, she drove to his Lecompton home and discovered his body on the floor of
his kitchen, with his head positioned in a doorway, surrounded by a pool of blood.

Price was the State's key witness about the Boose burglary and murder. He
admitted his multiple prior convictions for crimes of dishonesty, including five
misdemeanor thefts, nine burglaries, and two felony thefts. He testified that he was
currently serving a 13-1/2-year sentence for the Pottawatomie County burglary and
attempted murder. Price also was facing a sentence of 20 years to life after his guilty plea
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to felony murder in the Boose case. He testified that he was promised nothing in
exchange for testimony but that he hoped his sentences would be ordered to run
concurrent.

According to Price, he and Smith reconnected a short time before the string of
burglaries started, and Smith began staying with Price. The cousins needed money for
drugs, and Price said they both came up with the idea of committing burglaries of rural
houses. Price talked about the three other burglaries occurring about the time of the
Boose burglary and murder, and he said there were "some [other burglaries] that we ain't
been charged for."

Price discussed the Meriden burglary and the Holton burglary, during which he
and Smith obtained the black powder cap-and-ball revolver. He then focused on the April
29 Boose crimes in Lecompton. Price testified that, the night before, he and Smith talked
about their plan to commit a burglary the next day in order to get money for drugs. Price
spent the night in his camper, and Smith stayed at the home of relatives Robert and
Rashell Reisinger. The next morning, Smith asked Price to bring guns and the black
powder revolver because Smith had arranged for their sale.

The pair drove around for a while before settling on the Boose house. Once there,
Smith knocked on the door while Price backed up the car. Believing no one was home,
Price began rummaging through a glass or crystal change bowl on a dresser in a bedroom.
He pocketed some of its contents, including a wallet. Price then heard someone say,
"What are you doing in my house?" and turned to find himself face to face with Boose.
Price tried to find a way to run out; the man stepped backward toward the kitchen; then
Price heard a gunshot and saw the man collapse. Price stepped around the body and into
the kitchen, where Smith was standing with the revolver in his hand. Price and Smith
argued because Smith wanted to keep going through the house and Price wanted to leave
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immediately. Price went to the car, and Smith followed. Still arguing, they left the scene.
According to Price, Smith threw out the revolver and a cell phone on the drive, but he
held on to the stolen wallet. The pair first drove to Price's camper, and then Price took
Smith to the Reisingers' house.
Price also testified that although he did not want to, he and Smith committed one
more burglary so that Smith would have money to leave town. On May 3, they broke into
a house and "tore it up." Someone, a relative of the homeowners, came up the drive to see
what was going on. Price testified that when he came out of the house and saw this,
Smith had "already opened up on [the man] with one of the .22s." Price picked up another
.22 rifle, and both he and Smith shot at the man's truck. The man took off, and Price and
Smith left shortly thereafter, taking the four-wheeler and washer and dryer they had
stolen.
Because law enforcement was looking for him, Price left Kansas for Nebraska. He
was apprehended by authorities there.
Price did not see Smith again until Price's preliminary hearing on charges filed for
the May 3 Pottawatomie County burglary case. Smith testified against Price in that
hearing. Price said Smith walked into the courtroom with a smile on his face, took the
stand, and said that Price did everything and that he, Smith, had nothing to do with it.
Price pleaded guilty in Pottawatomie County and then told his attorney he wanted to talk
to Douglas County Sheriff's Department personnel to set the facts straight. He admitted
that he initially told police that Smith committed the Boose burglary and murder with
someone else. Eventually he confessed his involvement.

Although Price testified that he had "a very good memory," his testimony was
inconsistent on whether he and Smith reconnected about 3 months or just a few days
before the first burglary. He also could not remember his own girlfriend's last name and
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suggested "Davenport" when it was "Whitcomb." He could not remember Smith's wife's
name or whether Smith and his wife had previously been living in Nebraska, Ohio, or
Texas.

Contrary to one of Smith's statements to police, Price testified that he never forced
Smith to participate in a burglary and never tricked him into going along by saying he
was going "junking" or looking for scrap metal. He also testified that he never committed
burglaries by himself; he was always with someone, not always Smith.

At Smith's preliminary hearing, Price had testified that he committed 10 to 15 rural
burglaries similar to those at issue here without Smith's help. At Smith's retrial, Price said
that his burglaries followed the same pattern, regardless of his accomplice: he sought out
unoccupied rural residences, took along guns, wore gloves, looked for the same sorts of
items, and took items back to the camper or to his girlfriend's house. Price testified that
he never took checks or credit cards from the houses he burglarized with Smith; Smith
alone did that. Price said he had never used a credit card before, did not know how, and
was afraid that using checks or credit cards would make authorities suspicious of him.
Price also testified that, although he always took guns with him, he did not take guns
inside the houses he burglarized. He also said that he and Smith only used Price's
vehicles, and Price drove.

During cross-examination, defense counsel established that Price repeatedly lied to
law enforcement to throw suspicion on Smith and others and keep himself "out of the
picture."

Sandy Whitcomb, who was dating Price at the time of the Boose murder, testified
that Price and Smith would occasionally stay at her house. She also testified that Price got
a washer and dryer for her about May 3, 2005. He told her they had come from an
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auction, and she paid him $60. She said she was unaware of the burglaries until police
executed a search warrant at her house.

Several deputies with the Douglas County Sheriff's Department testified about the
Boose investigation, including discovery of Boose's driver's license and flosscard in
Price's camper; Boose's bank card on the Kansas River levee not far from Whitcomb's
house; and a number of cell phones along with Boose's Visa bank card in Smith's car.
Officers also testified about their inability to locate the black powder revolver and about
their investigation of cell phone records, prison visitations, and recorded calls.

Detective Pat Pollock described Smith's series of eight interviews.

Pollock told the jury about Smith turning himself in on May 7 and about his
confession to involvement in some burglaries, including the Pottowatomie County
burglary in which he and Price shot at a man who interrupted them. Smith then offered
information about the Boose homicide, saying that Price told him about it on Whitcomb's
deck on the evening of April 29 and that Price claimed he had shot an old man.

Pollock said that Smith offered more information on May 8 about the other
burglaries he and Price had committed together. During this interview, police learned that
Smith possessed some of the credit cards taken from the Boose home.

The next day, Pollock said, Smith offered to take a polygraph test, and police
administered one. Police also had obtained statements from the Reisingers, who said
Smith was babysitting their children on the day of the Boose crimes. When police asked
Smith whether and when he babysat the Reisingers' children, Smith said he believed that
he had babysat on April 28 and on May 1.

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Pollock described Smith's June 7 interview as a general follow-up.

The next day, June 8, according to Pollock, Smith was to be transported from the
Jackson County Jail to the Douglas County Jail. Although Smith had not previously
indicated that he knew precisely where the Boose murder happened, he suggested that, if
police wanted to take him by the area perhaps he could "help [them] figure out where
[Price] might have thrown the gun." On the drive, they crossed over several waterways,
but Smith pointed out a particular one about 1/10 of a mile and visible from the Boose
home, saying "that looked like a place that [Price] might have thrown the gun."

Approximately 2 months later, on July 28, police did another general follow-up
interview with Smith but obtained little new information, Pollock said.

By August 4, Pollock said, police were ready to confront Smith with
inconsistencies between his statements and the statements of others gathered during the
investigation. Smith asked if he was a witness or a suspect, and he was told that the
authorities should know the answer by the end of the interview. During this encounter,
Smith said he had not had any contact with or seen Price from April 28 through April 30,
which conflicted with his original statement that Price had confessed to him on April 29.
Confronted with the conflict, Smith admitted that he had not been completely truthful. He
continued contradicting himself and, for the first time, he maintained he was watching the
Reisingers' children all day on April 29. He said that he and his wife had talked on the
phone about this.

Finally, Pollock testified, after Price's mid-October confession that he and Smith
committed the Boose burglary and killed Boose, police confronted Smith on October 31.
Smith made no further admissions and gave police no additional information.

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Smith's wife, Terra, testified that she was hospitalized shortly after she and Smith
moved back to Kansas from Ohio, and she did not see Smith until April 30. She and
Smith were not staying together at that point; Smith was staying with Price. She said she
was aware that Price and Smith were robbing people and doing drugs. She heard from her
cousin, Rashell, that Smith was watching the Reisingers' children the day of the Boose
murder. When Terra learned this, she told police. She was unaware that Rashell had
already told police the same thing.

Michael Blodgett testified about conversations with Smith while both were
incarcerated, specifically saying that Smith told him about multiple crimes committed
with Price. Blodgett testified that Smith discussed how, during a robbery of a jeweler in
Douglas County, Price had ended up shooting the victim. Smith threw away the gun.
Blodgett admitted that he had not initially been forthcoming with police about the
information on the Douglas County burglary and murder. He also admitted that he had
been following the story in the news and may have learned some details of the case that
way.

Tim James, another witness who had been housed with Smith while both were
incarcerated, testified that Smith had said he was locked up because he had committed a
burglary with his uncle and they had had to shoot their way out when the homeowner
came home. When James told Smith that he "had that same look in his eyes" as other
people James had known who had killed, Smith told him that he and his uncle or cousin
were burglarizing a residence when "the gentleman came home and [Smith] shot him."

Smith's mother, Elizabeth Falter, testified that she went looking for Smith in early
May 2005 and ultimately dropped him off at the police station. She testified that Smith
gave her his cell phone, and she erased some or all of the telephone numbers from it. She
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told Rashell that her son would "not go down for this." Ms. Falter also testified that
Price's aunt said Price's family would not let Price take the blame.

Dr. Erik Mitchell, the coroner, described the scene at the Boose home and his
autopsy of the body. He opined that Boose's death was a homicide and that, based on the
evidence, the shooter was standing behind Boose, near a kitchen table when Boose was
shot.

After the State rested its case, the defense called Robert and Rashell to the stand.
The Reisingers both testified that Smith was at their house on April 29 and watched their
children from early in the day until afternoon, while they picked up Robert's paycheck
and cashed it and then ate at Wendy's. When they returned, Robert gave Smith money he
owed him. Smith left for a short time, then returned and spent the afternoon and/or
evening doing drugs with Robert. State cross-examination of the Reisingers drew out
some inconsistencies in their testimony and previous statements made to police.

Barbara Parks, a loss prevention specialist with Food 4 Less, corroborated Robert's
testimony that he was at the store and cashed his check on April 29 at 1:26 p.m.

Officers Lyle Hagenbuch and Jason Grems both testified that they went to the
Reisinger home and interviewed Rashell and Robert separately on May 9. The officers
said that Rashell and Robert told them Smith had watched their children from morning
until the afternoon on April 29, that he left for a while to get drugs, and that he then
returned and "partied" with Robert until dark. They also said Smith's wife may have been
at their home part or all of that day.

Erika Newcombe, the secretary at Quincy Elementary School, testified that all of
the Reisinger children had unexcused absences from school on April 29.
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The last evidence introduced by the defense focused on the credibility of James'
testimony by suggesting that James was motivated to falsely implicate Smith in order to
distract police investigating James' son.

At the close of all of the evidence, Smith asked the district judge not to give a
cautionary instruction on accomplice testimony. The judge denied the request. The judge
also provided a limiting instruction on the K.S.A. 60-455 evidence, to which Smith's
counsel did not object. Thus the jury instructions included:

"Instruction No. 6: An accomplice witness is one who testifies that he was
involved in the commission of the crime with which the defendant is charged. You
should consider with caution the testimony of an accomplice."

"Instruction No. 9: Evidence has been admitted tending to prove that the
defendant committed crimes other than the present crime charged. This evidence may be
considered solely on the issue of identity."

After the jury's guilty verdicts, Smith moved unsuccessfully for a new trial based
in part on the admission of K.S.A. 60-455 evidence. He also sought to vacate his first-
degree murder conviction on Count I as multiplicitous of his aggravated burglary
conviction on Count II, arguing that a defendant cannot be prosecuted and punished for
both felony murder and the underlying felony. The district judge rejected this argument.
Smith received a sentence of life imprisonment for the felony murder and a sentence of
136 months for the aggravated burglary. The sentences were to run consecutive to each
other, but concurrent with Smith's sentence in the Pottawatomie County case.

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DISCUSSION

K.S.A. 60-455 Evidence of Three Other Burglaries

Smith argues that the K.S.A. 60-455 evidence of the three other burglaries was not
relevant to establish identity and was more prejudicial than probative. He also argues that
the district judge's limiting instruction was erroneous.

Our rules of evidence state that all relevant evidence is admissible. See K.S.A. 60-
407(f). But a judge may, in his or her discretion, exclude otherwise admissible evidence
if its probative value is substantially outweighed by the risk that its admission will
unfairly prejudice the party against whom it is offered. K.S.A. 60-445; State v. Leitner,
272 Kan. 398, 415, 34 P.3d 42 (2001) (although K.S.A. 60-445 requires probative versus
prejudicial balancing only when opposing party claims surprise, balancing may require
exclusion "as a rule of necessity" when probative value substantially outweighed by risk
of unfair prejudice); see K.S.A. 60-403.

Under the version of K.S.A. 60-455 applicable at the time of Smith's 2008 trial,
evidence of other crimes or civil wrongs was inadmissible to establish a disposition to
commit such acts as the basis for an inference that the person committed the offense at
issue. But such evidence could be admitted to prove some other material fact, such as
those listed in the statute, e.g., motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. Cf. K.S.A. 2011 Supp. 60-455(a), (b).

This court's rubric for evaluating the admissibility of K.S.A. 60-455 evidence
under that version of the statute required that (1) the evidence be relevant to prove a
material fact; (2) the material fact be disputed; and (3) the probative value of the evidence
not be substantially outweighed by the risk of undue prejudice. See State v. Torres, 294
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Kan. 135, 139-40, 273 P.3d 729 (2012) (citing State v. Inkelaar, 293 Kan. 414, 424, 264
P.3d 81 [2011]); State v. Prine, 287 Kan. 713, 724-25, 200 P.3d 1 (2009); State v.
Vasquez, 287 Kan. 40, 49, 194 P.3d 563 (2008); State v. Reid, 286 Kan. 494, 503, 186
P.3d 713 (2008); see K.S.A. 60-406. We review a district judge's materiality
determination de novo. State v. Wilson, 295 Kan. __, Syl. ¶ 3, __ P.3d __ (No. (102,931,
filed September 28, 2012); Reid, 286 Kan. at 509. This court applies an abuse of
discretion standard of review on the existence of probative value and the weighing of it
against the potential for undue prejudice. Wilson, 295 Kan. ___, Syl. ¶ 3; Torres, 294
Kan. at 140. If K.S.A. 60-455 evidence is admitted, a district judge also must give a
limiting instruction to ensure the jury considers the evidence only for the specific reason
or reasons it is admitted. Torres, 294 Kan. at 140.

In this case, Smith admitted he was involved in three burglaries but denied
involvement in the one during which Boose was killed. His theory of defense on the
Boose crimes was alibi. In the district judge's detailed ruling on the State's motion to
admit evidence of the three burglaries, he specifically set out our standards for admission
and found that the disputed issue of material fact was identity, i.e., whether Smith was
Price's accomplice at the Boose burglary. The district judge was persuaded that
similarities among the burglaries made them probative on identity because all took place
within 8 days of each other; involved rural residences; were within driving distance of
Topeka; led to ransacking of the victims' belongings, including financial instruments,
with no particular targeted property; and resulted in the taking or use of firearms. In
addition, all of the burglaries were committed by Price. The district judge recognized that
the K.S.A. 60-455 evidence was prejudicial, but he ruled that it was highly relevant to
prove identity and that its potential for undue prejudicial effect was outweighed by its
logical, probative value. The district judge also gave a limiting instruction.

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Smith's first argument is specific: He asserts on appeal that the similarities relied
on by the district judge did not actually point to him, as Price testified that he had
committed numerous burglaries using the same methods without Smith. In short, Smith
argues, none of these burglary characteristics was unique to his identity as Price's
accomplice and, thus, the three other burglaries had no probative value at a trial on the
Boose crimes. The State does not directly address this nuanced argument, instead
summarily stating that the evidence was probative on identity, that it was corroborated by
multiple witnesses, and that Smith's concerns were adequately addressed by the limiting
instruction.

Given Smith's alibi defense, it is beyond serious dispute that the identity of Price's
accomplice was a material fact and that it was in issue at trial. We therefore turn
immediately to whether the evidence of the three burglaries met the other requirement of
relevance: probative value.

This court has provided that, in analyzing the identity factor of K.S.A. 60-455, the
evidence offered
"should disclose sufficient facts and circumstances of the offense to raise a
reasonable inference that the defendant committed both offenses. Similarity must be
shown in order to establish relevancy. . . .[T]here should be some evidence of the
underlying facts showing the manner in which the other offense was committed so as to
raise a reasonable inference that the same person committed both offenses." State v.
Blackmore, 249 Kan. 668, Syl. ¶ 4, 822 P.2d 49 (1991).

See also State v. Baurock, 41 Kan. App. 2d 178, Syl. ¶ 9, 201 P.3d 728 (2009) (where
offered to prove identity, other crimes evidence should disclose sufficient facts and
circumstances of the offense to raise a reasonable inference that defendant committed all
19



of the offenses; crimes must be similar, not identical, to those charged), rev. denied 289
Kan. 1280 (2009).

Smith's precise argument has logical and legal merit. If used to prove identity
under K.S.A. 60-455, a similar crime must have at least one feature it shares with the
charged crime that is unique to the defendant the State seeks to convict. We agree with
this general principle.

We disagree, however, with Smith's view about how the principle applies in this
case. He argues that the three other burglaries and the Boose burglary lacked a shared
feature unique to him. This is not correct. Price testified that he never stole checks or
credit cards; Smith did so. This particular category of theft was common to the three
other burglaries and the Boose burglary, and Smith possessed at least one credit card
stolen from the Boose home. When this factor is considered, along with all of the other
similarities mentioned by the district judge, we see no abuse of discretion in the
determination that evidence of the three other burglaries was probative on the identity of
Price's accomplice in the Boose burglary and its associated felony murder.

Smith next argues that the district judge abused his discretion in weighing
probative value and the risk of undue prejudice. We disagree.

First, the evidence was not merely cumulative. It was telling. Although there was
circumstantial evidence against Smith, only the testimony of Price, Blodgett, and James
directly connected both Price and Smith to the Boose burglary and murder. In addition,
Smith's confession to the other burglaries that were temporal bookends to the Boose
crimes for which Smith advanced an alibi defense meant the probative value of the
K.S.A. 60-455 evidence on identity was enhanced. See People v. Perry, 166 Cal. App. 3d
20



924, 929, 212 Cal. Rptr. 793 (1985) (uncharged joint robbery evidence probative of
identity when one or two defendants not identified by witnesses).

In addition, any prejudice would not qualify as undue, much less overmatch the
substantial probative value. For example, there was nothing extraordinarily brutal about
any of the three other burglaries that might confuse the jury or result in defendant's
effectively being tried for those crimes rather than the crime charged. See Perry, 166 Cal.
App. 3d at 930-33 (reversible prejudice arises out of mistreatment of victim of other
crime).

Under these circumstances, although the other crimes evidence was pervasive at
trial, we hold that the district judge did not abuse his discretion in conducting the balance
between probative value on identity and the risk of unfair prejudice.

Finally, Smith challenges the correctness of the K.S.A. 60-455 limiting
instruction. Because he did not object to this at trial, we are governed by K.S.A. 22-
3414(3). We must determine, first, whether the instruction was error and, only if it is,
whether it qualifies for the label "clearly erroneous." We will hold that an instruction is
clearly erroneous only if we are "firmly convinced that the jury would have reached a
different verdict had the instruction error not occurred." State v. Williams, 295 Kan. ___,
Syl. ¶ 5, 286 P.3d 195 (2012); see State v. Washington, 293 Kan. 732, 740-41, 268 P.3d
475 (2012).

Defendant is correct that the language used by the district court in Instruction No.
9 was slightly different than that in PIK Crim. 3d 52.06. Rather than inform the jury that
"[t]his [other crimes] evidence may be considered solely for the purpose of proving the
defendant's . . . identity," as PIK Crim. 3d 52.06 reads, Instruction No. 9 informed the
jury that "[t]his [other crimes] evidence may be considered solely on the issue of
21



identity." (Emphasis added.) Defendant argues that the language employed does not
prevent an illegal use of the evidence, i.e., that the jury would consider the other crimes
evidence as evidence of defendant's propensity for violence or propensity to burgle.

We are not persuaded that the instruction was erroneous, much less clearly
erroneous. It was consistent with Kansas law. It informed the jury that the evidence of
other burglaries was to be considered for a specific purpose, and this limited permissible
use was reiterated by the prosecutor in closing argument. Although the instruction did not
track the language of the pattern instruction verbatim, it was factually and legally
appropriate in light of the entire record. See Williams, 295 Kan. ___, Syl. ¶ 4. Smith is
entitled to no relief on the ground of this instruction.

Cautionary Accomplice Witness Instruction

Smith's next argument on appeal echoes his district court challenge to the giving
of the cautionary accomplice witness instruction over his objection.

When a party has objected to an instruction at trial, the instruction will be
examined on appeal to determine if it properly and fairly states the law as applied to the
facts of the case and could not have reasonably misled the jury. When making this
determination, an appellate court is required to consider the instructions as a whole and
not to isolate any one instruction. State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525
(2009).

Smith asserts that the accomplice witness instruction, directing the jury to consider
Price's testimony with caution, created a negative inference regarding the testimony of
others in this trial. In short, he complains that his jury would have understood that the
22



testimony of other witnesses, specifically nonaccomplice jailhouse informants, should not
be weighed with caution.

Smith acknowledges, however, that the district judge was correct about existing
law making the instruction appropriate. See, e.g., PIK Crim. 3d 52.18; State v. Anthony,
242 Kan. 493, 498-502, 749 P.2d 37 (1988) (accomplice instruction proper even when
accomplice testimony favorable to defendant, defendant objects to the instruction). Smith
seeks a holding that a defendant should be allowed to waive the giving of the instruction
for strategic reasons.

Our 1988 Anthony case presented this court with the first-impression question of
whether it was improper for a trial judge to give an accomplice instruction over a
defendant's objection when the accomplice's testimony was favorable to a criminal
defendant. 242 Kan. at 500. The court acknowledged the then-majority rule that an
accomplice instruction is required only when the testimony is harmful to the defendant,
but "adopt[ed] the minority view that a cautionary instruction on accomplice testimony is
proper in all circumstances where an accomplice testifies." Anthony, 242 Kan. at 501-02.
The court reasoned that

"[s]uch testimony on behalf of defendants is becoming more prevalent all the time,
particularly by spouses or convicted friends of the accused who have nothing to lose by
taking the blame. Here, the defendant was not branded as one who committed a crime.
The instruction states the accomplice witness is one who testifies he was involved in the
commission of the crime 'with which the defendant is charged.' That is not prejudicial,
particularly where the witness testifies she committed the crime and the defendant is
innocent." Anthony, 242 Kan. at 502.

As Smith concedes, Anthony is still good law. In addition, in the recent case of
State v. Elnicki, No. 96,179, 2009 WL 2242417 (Kan. App. 2009) (unpublished opinion),
23



rev. denied 290 Kan. 1097 (2010), a defendant urged the Court of Appeals to reject the
Anthony rule. Noting it was duty-bound to follow this court's precedent, and noting that
there was no indication this court was departing from Anthony, the panel declined the
defendant's invitation and found no error in the district court accomplice instruction.
Elnicki, 2009 WL 2242417, at *3-4 (Kan. App. 2011) (also noting several other
jurisdictions have adopted Kansas' approach since Anthony); see also State v. Rodarte,
No. 102,132 2011 WL 1814709, at *3-4 (Kan. App. 2011) (unpublished opinion)
(rejecting same argument; Anthony controlling). This court denied review of Elnicki.

Before Elnicki was decided, one panel of our Court of Appeals suggested that, in
certain circumstances, "an accomplice instruction could potentially prejudice a
defendant" and under such circumstances, "[a] sua sponte accomplice instruction . . .
would [be] inappropriate." State v. Swarthout, No. 94,823, 2007 WL 2377084, at *3
(Kan. App. 2007) (unpublished opinion) (where defendant denied participation in crimes,
accomplice's testimony at trial consistent with defense, use of accomplice instruction as
to accomplice's pretrial statements inculpating defendant could raise inference that all of
accomplice's statements suspect; no error in failure to give instruction), rev. denied 285
Kan. 1177 (2008). Here, however, the circumstances are less compelling than those in
Swarthout. Smith's argument is that the giving of the instruction, although not in and of
itself prejudicial, created a negative inference about the testimony of other witnesses
whose testimony arguably should also have been considered with caution. We see no
reason to depart from our precedent at this time. We therefore hold that the district judge
did not err in giving the accomplice witness instruction over Smith's objection.

24



Prosecutorial Misconduct

Smith also argues on appeal that he is entitled to reversal of his convictions and a
new trial because of several instances of what he believes to have been prosecutorial
misconduct during closing argument.

Appellate review of an allegation of prosecutorial misconduct involving improper
comments to the jury requires a two-step analysis. First, the court determines whether the
prosecutor's comments were outside the wide latitude the prosecutor is allowed in
discussing the evidence. If misconduct is found, the appellate court must determine
whether the improper comments constitute plain error; that is, whether the statements
prejudiced the jury against the defendant and denied the defendant a fair trial. State v.
Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012); see State v. Elnicki, 279 Kan. 47, 58,
105 P.3d 122 (2005).

In evaluating prejudice, the appellate court considers three factors: "(1) whether
the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the
prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming
nature that the misconduct would likely have had little weight in the minds of jurors."
State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012). "'None of these three factors is
individually controlling. Before the third factor can ever override the first two factors, an
appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 . . .
and Chapman v. California, 386 U.S. 18, [22,] 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)
. . ., have been met.' [Citation omitted.]" State v. McCaslin, 291 Kan. 697, 715-16, 245
P.3d 1030 (2011). The basic test asks whether the error affected the defendant's
substantial rights, meaning whether the error affected the outcome of the trial. See State
v. Ward, 292 Kan. 541, 553-55, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594
(2012). The State, as the party benefitting from the alleged misconduct, bears the burden
25



to establish that there is no reasonable possibility the error affected the verdict. Inkelaar,
293 Kan. at 430-31.

Smith points to several comments made by the prosecutor. In addition to
highlighting these comments in his brief, Smith submitted two letters of additional
authority to the court under Kansas Supreme Court Rule 6.09(b) (2011 Kan. Ct. R.
Annot. 49), alleging that the prosecutor in his trial has repeatedly made similar comments
in other cases. He asserts that this pattern means the comments in this case were not
innocent or isolated but were part of a pattern of gross, flagrant misconduct that
demonstrates ill will.

We address the propriety of each challenged comment individually before
addressing Smith's attack on the collective comments or his allegation of a pattern of
misconduct demanding reversal of his convictions.

Smith first suggests that the prosecutor improperly vouched for Price's testimony:

"And, you know, I know it's difficult to say, 'Believe Leonard Price.' And he is
believable. When you go back and think about it, there are lots of reasons to believe him.
And if you believe him, you find Allen Smith is indeed a cold-blooded murderer here in
killing [the victim] in his own kitchen."

It is improper for prosecutors to offer juries their personal opinions on the
credibility of witnesses. State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010). And it
would be improper for the prosecutor to say only that a witness "is believable." However,
when this comment is reviewed in the context in which it was offered, it merely invited
the jury to analyze the evidence supporting Price's testimony; to consider its believability;
and, if the jury believed it, to find Smith guilty. But for the court reporter's choice of
26



punctuation in the transcript, the prosecutor's statement could be interpreted to say, "[I]t's
difficult to say, 'Believe Leonard Price,' and 'He is believable.' [But] . . ., there are a lot of
reasons to believe him." This does not constitute "vouching" for a witness' credibility. Cf.
Elnicki, 279 Kan. at 58-68.

Smith also argues that the prosecutor made an improper appeal to the jurors'
sympathy when suggesting that "there wasn't a person in this courtroom that was listening
to Leonard Price" who "didn't imagine him in their own house. It's disturbing to hear.
Especially for anyone who's ever been burglarized."

Although this comment was arguably improper as a golden rule or sympathy
argument and did not address the evidence in this case, it focused on Price, the State's
witness, rather than on Smith. It also was innocuous when compared to sympathy appeals
held to be reversible misconduct. See State v. Kunellis, 276 Kan. 461, 476-80, 78 P.3d
776 (2003) (prosecutor's statements, testimony painting "Norman Rockwellesque" picture
of victims' lives just before accident designed to inflame jury); State v. Finley, 268 Kan.
557, 570-72, 998 P.2d 95 (2000) (improper appeal to sympathy, local standards when
prosecutor informed jurors they enforced laws, could not tolerate "this kind of drug use in
our community").

Smith also faults the prosecutor for telling the jury which parts of the alibi defense
to believe. But we see the complained-of portion of the argument differently. It was fair
comment on the inconsistencies in Smith's series of shifting stories to police about his
whereabouts and activities during the days surrounding the Boose burglary and murder.
As such, it was within the wide latitude afforded the State in closing argument.

Smith also argues that the prosecutor engaged in improper name calling and
commented on Smith's credibility in her rebuttal by stating:
27




"You know, closing argument is a time for a lot of things, and generally I don't
stand up here and call anyone names, but [defense counsel] kind of did it for me. He went
ahead and said, you know, all these different things about his client being a liar and, you
know, looking bad.

"Well, he doesn't look bad, he looks guilty. And you know one thing he didn't
call him, which we also all know about Allen Smith, is that he's a snitch. And this is a
case where, yeah, you could name a lot of people being snitches, but who was the first?"

The State argues that "no error occurs where questionable statements by
prosecuting attorney are provoked and made in response to prior . . . statements by
defense counsel." Defense counsel, in closing, admitted that Smith was a "criminal," a
"burglar," an "attempted murderer," and a "liar"; and counsel used the word "snitch"
several times in reference to other witnesses. Although these comments could not
properly "provoke" the prosecutor to "respond" by adding that Smith was also a "snitch,"
the prosecutor's comment was, in fact, made in the context of describing the evidence. In
her earlier discussion, the prosecutor asked the jury to compare how Price and Smith
came forward to police. Price was, for several months after being picked up, silent. But
Smith turned himself in and began "singing away." The prosecutor's rebuttal statement
that, in fact, Smith "was the number one snitch in this case . . . first in the door" was a fair
description of the evidence before the jury.

Smith also faults the prosecutor for misstating the State's burden of proof by
telling jurors that "[i]f you believe Leonard Price, if you believe him, you have vaulted
yourself over the hurdle of beyond a reasonable doubt, because he sets out every single
element right there. He sets it out, and Allen Smith is guilty if you believe Leonard
Price."

28



As the State argues, this statement, taken in context, was merely an invitation to
examine the State's evidence; it was not an attack on material that Smith presented or
failed to present, and it did not constitute improper burden shifting. Cf. State v. Pabst,
268 Kan. 501, 511, 996 P.2d 321 (2000) ("If you don't believe [defendant], then he's
guilty. And he admits it"; improper statement of State's burden).

Smith's final attack on the prosecutor's argument centers on her repeated use of the
word "truth" to describe the State's case.

"And you know, it is hard work to get to the truth, and there is a lot to sort through. But
the truth is there, and the truth is here in this courtroom, and the truth was presented to
you through the course of last week.

"And the truth is the only thing that David Boose has right now. He was alone in
his kitchen. He was surprised by these two people trying to take things that were his. He
was unprotected, and he was shot. Executed.

"But today, in this courtroom, he has the truth. And the truth will give him a
verdict against Allen Smith for aggravated burglary, and a verdict against Allen Smith for
shooting David Boose in the head. Those verdicts won't replace David Boose. They won't
bring him back. They won't fill the hole that is in his family's life, but they will give us
the truth." (Emphasis added.)

In our 2005 decision in Elnicki, a prosecutor's statement that "'the truth shows you
beyond a reasonable doubt the defendant is guilty of the crimes with which he is
charged'" was held to be an improper comment on the credibility of the State's evidence.
Elnicki, 279 Kan. at 64. The State argues that the prosecutor did not do the equivalent
here; she merely stated that the victim would find justice through the truth, and her
argument pointed out evidence that defendant had burglarized the house and shot Boose.

29



We disagree. We regard the prosecutor's repeated invocation of the "truth" as error
of exactly the same type we saw in Elnicki. Moreover, Elnicki was not news on the
impropriety of such an invocation. We and other judges, including the justices of the
United States Supreme Court, had previously said that prosecutors should not assert sole
possession of the "truth." See, e.g., United States v. Young, 470 U.S. 1, 4-14, 105 S. Ct.
1038, 84 L. Ed. 2d 1 (1985); State v. Pham, 27 Kan. App. 2d 996, 1004-06, 10 P.3d 780
(2000); State v. Mosley, 25 Kan. App. 2d 519, 524-25, 965 P.2d 848, rev. denied 266
Kan. 1113 (1998), overruled on other grounds by State v. Jasper, 269 Kan. 649, 8 P.3d
708 (2000); see also Pabst, 268 Kan. at 506 (citing Kansas Rules of Professional Conduct
[KRPC]; American Bar Association of Standards of Criminal Justice); KRPC 3.4 (2011
Kan. Ct. R. Annot. 566).

Even without the episodes described in the Rule 6.09 letters, which are dependent
on material outside the record before us, the prosecutor's behavior is perilously close to
gross and flagrant and demonstrative of ill will. However, the evidence against Smith,
both direct and circumstantial, was abundant and reinforced by his confession to a string
of contemporaneous rural residence burglaries with Price. We have no hesitation in
holding that the prosecutor's error was harmless under both the K.S.A. 60-261 standard
and the Chapman standard. Smith is not entitled to reversal and new trial for
prosecutorial misconduct.

Cumulative Error

Cumulative trial errors, when considered collectively, may require reversal
of the defendant's convictions when the totality of circumstances substantially
prejudiced the defendant and denied the defendant a fair trial. If the evidence is
overwhelming against the defendant, however, no prejudicial error may be found
30



based upon this cumulative error rule. Thompson v. State, 293 Kan. 704, 721, 270
P.3d 1089 (2011).

Having discerned only one trial error in this case and dealt in the preceding section
with whether it required reversal, we need not evaluate cumulative error. See State v.
Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).

Multiplicity

Whether convictions or sentences are multiplicitous is a question of law over
which this court's review is unlimited. State v. Simmons, 282 Kan. 728, 743, 148 P.3d
525 (2006); State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006).

Smith argues that, under the identical elements test, aggravated burglary and
felony murder based on aggravated burglary as the underlying felony are the "'same'
offense," i.e., they are multiplicitous; that our Schoonover decision interpreting the statute
to allow multiple punishment for, in that case, robbery and felony murder, was wrongly
decided; that K.S.A. 21-3436 does not provide for cumulative punishment but merely
codifies the merger doctrine; and that he cannot be punished for both felony murder and
aggravated burglary under the federal Double Jeopardy Clause. Although phrased as a
challenge to both convictions and sentences, this argument potentially affects only
Smith's sentences, as his counsel acknowledged at oral argument.

Smith points to Whalen v. United States, 445 U.S. 684, 692, 100 S. Ct. 1432, 63 L.
Ed. 2d 715 (1980), and argues that the crime of felony murder includes all of the
elements of the crime of aggravated burglary. But Smith fails to acknowledge that felony
murder requires proof of an element not necessary to prove aggravated burglary, i.e., the
killing of a human being. See Schoonover, 281 Kan. at 498.
31




Smith suggests that this court's statement in Schoonover that the legislature
authorized multiple punishments by enacting K.S.A. 21-3436 was mere dicta and this
court should cease relying on it. See Schoonover, 281 Kan. at 490.

K.S.A. 21-3436 lists certain inherently dangerous felonies that do not merge with
homicide and therefore can support a felony-murder charge/conviction. State v. Lamae,
268 Kan. 544, 556, 998 P.2d 106 (2000). Aggravated burglary is one of them. K.S.A. 21-
3436(a)(10); State v. Makthepharak, 276 Kan. 563, 571, 78 P.3d 412 (2003); see K.S.A.
2011 Supp. 21-5402(c)(1)(J). Contrary to Smith's position, an inherently dangerous
felony such as aggravated burglary does not merge into felony murder under Kansas'
statutory scheme, and a defendant may be convicted and sentenced for both offenses even
when the aggravated burglary is the underlying felony for the felony murder. See State v.
Pham, 281 Kan. 1227, 1262-63, 136 P.3d 919 (2006) (inherently dangerous felony
statute, K.S.A. 21-3436, states legislature's intent to allow cumulative punishment for
felony murder and inherently dangerous felonies). Smith's citation to other caselaw,
treatises, and the rule of lenity is inapposite where, as in Kansas, the legislature has
spoken clearly. Cf. Whalen, 445 U.S. at 692.

Smith offers no compelling reason for us to revisit or revise the Schoonover
analysis or related caselaw. As recently as a few months ago, we specifically declined an
invitation to do the same in an appeal from convictions of felony murder and aggravated
robbery. State v. Parks, 294 Kan. 785, 801-04, 280 P.3d 766 (2012).

32



CONCLUSION

Because we hold that defendant Smith has demonstrated the existence of only one
trial error and it does not demand reversal of his convictions, the judgment of the district
court is affirmed.