Opinion
No. 106,059.
2012-09-28
STATE of Kansas, Appellee, v. Spencer ADAMS, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant, and Spencer Adams, appellant pro se. Cathy A. Eaton, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant, and Spencer Adams, appellant pro se. Cathy A. Eaton, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Spencer Adams was convicted of attempted second-degree murder for beating and seriously injuring his girlfriend. Adams raises several issues on appeal including prosecutorial misconduct, ineffective assistance of trial counsel, improper exclusion of evidence, lack of black males on the panel of jurors, and the district court's inclusion and then redaction of a jury instruction on a crime that does not exist in Kansas. In addition, Adams asserts that his constitutional rights were violated in sentencing. After fully considering all of the claimed errors, we affirm.
Factual and Procedural History
On the evening of October 10, 2008, David McCarter, a friend of Adams, was at Adams' and Susan Pavlovic's apartment. McCarter left the apartment for about 40 minutes in order to walk to the store to purchase cigarettes. On his return to the apartment, McCarter walked into the bathroom and saw blood on the walls, bathtub, and toilet. He left the bathroom calling for both Adams and Pavlovic. While calling their names, McCarter heard several popping or hitting noises. He approached the bedroom door and, after it opened, McCarter saw Adams sitting in a chair and Pavlovic was slumped on the floor in front of Adams. There was blood all over Adams' clothing and all over the bed. Adams was holding a pot in his hands by the handle. McCarter saw that Pavlovic was unconscious, had a large wound on her head, and she was bleeding profusely. Adams told McCarter that McCarter needed to leave and said, “I think I done killed this white bitch.” As they were searching for some keys, Adams told McCarter to call the police. McCarter left the apartment, he contacted a group of young adults, and one of the women called 911 for him. The police arrived shortly thereafter.
At Adams' trial for attempted second-degree murder, Pavlovic testified that an argument between she and Adams that evening escalated to Adams hitting her with his fists and then with a cooking pan all over her arms and head. She testified that Adams was extremely angry and threatened to kill her.
Adams testified that on that evening he and McCarter left the apartment to go to the liquor store. When they returned from the store and entered the apartment, Adams noticed that the bedroom door was closed. When he went to open the door, he saw Pavlovic slumped over. Adams went to her and saw blood everywhere and when he took a hold of her, blood got on his shorts. He noticed a broken picture frame on the floor. He was trying to help her after he discovered that she was seriously injured and told McCarter to call 911. Later, when he heard someone knocking on the door, Adams stood up, saw the cooking pan on the end of the bed, picked it up, and put it in the sink. Adams vehemently denied that he caused Pavlovic's injuries.
Pavlovic suffered a subdural hematoma, a fractured skull, a laceration to her scalp, a fractured sternum, several broken ribs, and hemorrhaging in her abdomen. Her brain was visible through the hole in her skull.
Adams was subsequently found guilty by a jury of attempted second-degree murder.
Adams filed two untimely pro se motions for new trial. In his first motion, Adams asserted a claim of ineffective assistance of trial counsel for his counsel's failure to subpoena any witnesses or documents to aid in his defense and counsels failure to investigate and present exculpatory evidence. Adams also asserted there was new evidence that was not available at trial and that the evidence presented at trial was insufficient to support his conviction.
In his second motion, Adams asserted that the district court incorrectly granted the State's motion in limine regarding the victim's false report of assault and rape as well as the victim's history of mental illness; the admission of certain photographic evidence was more prejudicial than probative; the district court was incorrect when it allowed a witness to use the terms “splatter” or “blood splattering”; Juror No. 24 was struck without the defense counsel being able to conduct voir dire; the district court erred in issuing an incorrect jury instruction on unintentional second-degree murder, which is not a recognized crime in Kansas, and then correcting and clarifying the instruction after the jury started its deliberation; and trial counsel was ineffective for failing to investigate and introduce exculpatory evidence at trial and for failing to sufficiently cross-examine the State's witness.
After denying both motions, the district court found that Adams' criminal history score was a B and sentenced him to a 228–month term of imprisonment, with a 36–month term of postrelease supervision.
Adams filed a timely notice of appeal. We will address each of his alleged points of error on appeal, which include those raised by his appellate attorney and those separately raised by Adams in his supplemental pro se brief.
Prosecutorial Misconduct
Adams argues that during closing argument the State committed prosecutorial misconduct. According to Adams, the first instance of prosecutorial misconduct occurred when the State misstated the law during closing argument when it told the jurors that they did not have to look at the lesser included offenses if they were first able to agree that Adams was guilty of attempted second-degree murder. The second instance of prosecutorial misconduct was when the State, during closing argument, commented on the credibility of the State's key witnesses.
When an appellate court reviews an allegation of prosecutorial misconduct, a two-step analysis is required. First, it must be determined whether the comments made by the State's prosecutor went outside the wide latitude allowed when discussing the evidence. Second, if the comments did fall outside the wide latitude afforded, the appellate court must determine whether the misconduct prejudiced the jury against the defendant and denied him or her a fair trial. State v. Marshall, 294 Kan. 850, Syl. ¶ 1, 281 P.3d 1112 (2012). Accordingly, we will first examine whether the prosecutor's comments constituted misconduct.
Comments on the Credibility of Key Witnesses
Adams contends that the prosecutor's references to the credibility of key witnesses constituted misconduct. The specific instances to which Adams points to are as follows: When referring to both Pavlovic and McCarter, the prosecutor stated, “Both these people are credible witnesses and they both told you what happened.” In addition, when speaking about Pavlovic's memory of the incident and what she told detectives, the prosecutor stated, “She didn't make this up.” Moreover, when rebutting defense counsel's implication that Pavlovic was not credible because of her bipolar disorder, the prosecutor stated, “So I'd submit to you she is credible.”
In general, prosecutors are not allowed to “offer juries their personal opinions on the credibility of witnesses. [Citation omitted.] We prohibit the prosecutor from expressing personal opinions on the credibility of a witness because such comments are ‘unsworn, unchecked testimony, not commentary on the evidence of the case.’ [Citation omitted.]” State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011). When reviewing a prosecutor's comments, an appellate court should not view the comments in isolation but in the context they were made. Duong, 292 Kan. at 831.
“[W]e permit lawyers to make statements during closing arguments that draw reasonable inferences from the evidence. [Citation omitted.] Specifically, prosecutors may explain “ ‘to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses.’ “ [Citations omitted.] We recognize that it is proper for a prosecutor to assert ‘reasonable inferences based on the evidence and that, when a case turns on which of two conflicting stories is true, certain testimony is not believable.’ [Citation omitted.] Nevertheless, the jury must be left to draw the ultimate conclusion regarding the credibility of a witness. [Citation omitted .]” Duong, 292 Kan. at 830.
When reading the prosecutor's comments in isolation, it does appear that an opinion on the credibility of the witnesses was made. However, this court must view the comments in the context that they were made. As such, the following is a recitation of the context around the comments:
The first instance of possible misconduct is as follows:
“You heard from the victim, who described it to you. And you heard from [the defendant's] friend, a friend that was staying with him, David McCarter, who came in the middle of this act. But for David McCarter, this would be a murder case. David McCarter walked in—he's got no reason to tell you anything different. He's the defendant's friend and he told you what happened. He told you what he saw.
“And Susan Pavlovic, his girlfriend, who Keri Christian said in the hospital was saying, ‘I love him, I love him, don't want to leave him.’ She cares about him. What's her motive to say anything? She's explaining—even in her worst condition, she still told Detective Stuart Littlefield that the defendant was the one who did this. Both these people are credible witnesses and they both told you what happened.”
When reviewing the prosecutor's comments in this instance, it appears that the comments were based upon a review of the evidence. In addition, the comments detailed for the jury the factors that it could and should consider in determining the credibility of the witnesses. The comments appear as more of an attempt to summarize the conclusion the prosecutor wanted the jury to reach from the evidence rather than expressions of the prosecutor's own opinion on the credibility of the witnesses. Therefore, these comments were within the wide latitude afforded to prosecutors during closing arguments.
The second instance of possible misconduct is as follows:
“Now, [defense counsel]'s gonna—has made a big issue about Susan. Susan has problems. But look at this. [Defense counsel] suggested that maybe her caretakers are telling her what to say. You didn't hear that her caretakers were at the hospital with her coaching her telling her what to say when Detective Littlefield went there. That was in her worst condition. She's being treated two weeks after this happened. She's still in ICU. And, yes, she doesn't remember a lot about what happened. Stuart Littlefield told you that she remembered bits and pieces.
“What does she remember? What does stand out? Spencer Adams. What stand out? Hit me with a pot? What stands out? He said he was trying to kill me? She didn't make this up.”
Again, the prosecutor's comment on Pavlovic's credibility appears to stem from the evidence that surrounds the circumstances in which her comments were made. As above, the prosecutor's comments on Pavlovic's credibility seem to be more of an attempt to summarize the conclusion the prosecutor wanted the jury to reach from the evidence rather than expressions of the prosecutor's own opinion on the credibility of the witness. Thus, the comment on Pavlovic's credibility did not constitute misconduct.
The third instance of possible misconduct is as follows:
“You didn't hear any evidence that because she's bipolar, she has hallucinations or she makes things up. In fact, Dr. Barefoot told you that she wasn't schizophrenic, that she wasn't the type of bipolar that would have anything like that. So I'd submit to you she is credible. Just because she's bipolar and has different types of mood issues, that she's—maybe has times she's depressive doesn't mean that she's dishonest. Doesn't mean that she's not credible.”
Again, the comments appear to be a conclusion the prosecutor wanted the jury to reach from the evidence rather than expressions of the prosecutor's own opinion on the credibility of the witness. Therefore, this comment on the credibility of the witness did not constitute misconduct.
Misstatement of the Law
“When a prosecutor deliberately misstates the controlling law, he or she steps outside the considerable latitude given prosecutors. [Citation omitted.]” State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012). When a defendant challenges a prosecutor's statement regarding the law, an appellate court “must consider the challenged statements in the context of the entire closing argument and in conjunction with the instructions given at trial.” Burnett, 293 Kan. at 851.
The following statements by the prosecutor are those that Adams deems improper:
“If you go into the jury room and there's no reasonable doubt as to attempted murder in the second degree, then you should find a finding of guilty and not look at the lessors [ sic ]. Lessers are what you look at if you can't come to a conclusion, a unanimous decision beyond a reasonable doubt.”
Adams relies heavily on State v. Miller, 293 Kan. 46, 259 P.3d 701 (2011), for his proposition that the State's prosecutor went outside of the wide latitude afforded to prosecutors in closing argument by misstating the law regarding the jury's ability to review the crime charged, as well as the lesser included offenses, in a sequential manner rather than in conjunction with each other.
It should be noted that Miller does not pertain to prosecutorial misconduct during closing argument. Miller dealt with two contradictory jury instructions given by the district court. Miller was charged with first-degree murder. The district court gave the lesser included offense instructions on second-degree murder and voluntary manslaughter. The district court instructed the jury that it should simultaneously consider the lesser included offenses of second-degree murder and voluntary manslaughter. However, the district court then gave the jury an instruction that directed the jury to consider voluntary manslaughter only if it could not agree on the offense of second-degree murder. In other words, the jury was given contradictory instructions to consider the lesser included offenses of second-degree murder and voluntary manslaughter simultaneously and sequentially. Our Supreme Court found the sequential instruction to be plainly erroneous and reversed and remanded the case. Miller, 293 Kan. at 50–54.
In this case, because attempted voluntary manslaughter was submitted to the jury as a lesser offense of the crime of attempted second-degree murder, the district court was required to give the standard jury instruction as set out in PIK Crim.3d 56.05, Alternative B. This instruction requires the jury to review both attempted second-degree murder and attempted voluntary manslaughter simultaneously. It appears that the district court gave this instruction, and Adams concedes that the district court gave the jury the proper instruction on lesser included offenses.
Adams appears to analogize Miller to the factual scenario in his case. Specifically, because a district court must give a proper jury instruction on the lesser offenses of attempted second-degree murder—which includes the requirement that the jury must review both attempted second-degree murder and attempted voluntary manslaughter simultaneously—then a prosecutor cannot argue in closing that the jury can review them sequentially. This makes sense. In essence, the prosecutor in Adams' case not only misstated the applicable law, but also misstated the jury instructions provided to the jury.
Based on the fact that controlling law requires the jury to review attempted second-degree murder and attempted voluntary manslaughter simultaneously, and that PIK Crim.3d 56.05, Alternative B, specifically requires such, the prosecutor in Adams' case committed misconduct in closing argument when the jury was told to consider the two offenses of attempted second-degree murder and attempted voluntary manslaughter sequentially instead of simultaneously.
Was the misconduct so prejudicial that it denied Adams a fair trial?
If the prosecutor's conduct is deemed misconduct, then this court must conduct the harmlessness inquiry under the second prong of the prosecutorial misconduct analysis. Within the second prong of the prosecutorial misconduct, there are three additional factors this court must analyze: (1) whether the prosecutor's conduct was gross and flagrant; (2) whether the conduct was motivated by ill will; and (3) whether the evidence was so direct and overwhelming that the conduct would likely have had little weight in the jury's mind. No one factor is controlling. Marshall, 294 Kan. at 857.
Gross and Flagrant: When determining whether the misconduct was gross and flagrant, the following factors should be considered: (1) whether the comment was repeated or emphasized by the prosecutor; (2) whether the comment was made in a calculated manner; (3) whether the comment violated a long-standing, unequivocal rule designed to protect a constitutional right; (4) whether our caselaw has clearly stated the long-established rule. Marshall, 294 Kan. at 861.
Although the prosecutor's misstatement of the law was said two times, the misstatements occurred in close proximity to each other and were never mentioned again throughout closing arguments. Therefore, it does not appear that the misstatement of law was repeated or emphasized. There is no indication one way or the other that the prosecutor's misstatement of law was calculated. It occurred near the end of the first portion of the closing argument, when the prosecutor was summing up the argument and listing out the charged offense along with the lesser included offenses and applying the facts to the offenses. However, it was not a spur-of-the-moment comment made in rebuttal to defense counsel's closing argument either. The comment also violates the long-standing rule that a prosecutor must not misstate the law, and our courts have been clear in stating this rule.
Based on the above, we find that the prosecutor's misstatement of the law was not gross and flagrant. There is no indication that it was calculated or that it was repeated or emphasized. Moreover, the jury instructions provided were clearly correct and informed the jury that it was to review the evidence with both the offenses of attempted second-degree murder and attempted voluntary manslaughter in mind.
Ill Will: When analyzing whether the misconduct constituted ill will, the following factors should be considered: (1) whether the misconduct was deliberate; (2) whether it was repeated; or (3) whether it was done in apparent indifference to a court's ruling. When determining whether the misconduct “was deliberate and demonstrated an indifference to prior rulings, it is appropriate to consider the balance between the reality of a trial and the special duties imposed on a prosecutor.” Marshall, 294 Kan. at 862.
Although the comment was said twice, it occurred in a short span of time and was never mentioned again. The comment also did not appear to be a deliberate misstatement of the law. It seems like the prosecutor merely made a mistake. Moreover, there is no indication that the prosecutor's comment was made with indifference to any of the district court's prior rulings. We find that the prosecutor's comments did not exhibit ill will.
Direct and Overwhelming Evidence: When considering whether the evidence was direct and overwhelming so much so that the misconduct would likely have had little weight in the jury's mind, it is the State's responsibility to establish beyond a reasonable doubt that the error did not affect the defendant's substantial rights. In addition, an appellate court should consider the prosecutor's comments in light of the circumstances and the entire record. Marshall, 294 Kan. at 864.
At trial, McCarter testified that when he entered the apartment, he heard several popping noises and upon entering the bedroom saw Adams holding a cooking pan while sitting in a chair and Pavlovic was slumped between Adams' legs. McCarter testified that Adams told him to call the police and that he thought he may have killed Pavlovic.
Pavlovic testified that she and Adams were in an argument when he started hitting her. Pavlovic said that Adams was extremely angry and threatened to kill her.
Based on the two witnesses' testimony, there was overwhelming evidence so that the misconduct would likely have had little weight in the minds of the jury. Therefore, although the comment constituted misconduct, it was harmless and did not deny Adams a fair trial.
Motion for New Trial
Adams argues that the district court's denial of his motion for new trial should be remanded because the district court failed to make the requisite findings of fact and conclusions of law on his claim of ineffective assistance of counsel.
“The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice.” K.S.A. 22–3501(1). An appellate court reviews the trial court's decision on a motion for new trial for an abuse of discretion. See State v. Mathis, 281 Kan. 99, 103–04, 130 P.3d 14 (2006) (judge's discretion to deny a motion for new trial or to recall a jury is limited and particularly warrants articulation of the reasons for the “ ‘discretionary’ “ decision if a defendant's constitutional right has been violated during trial).
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). Consequently, the appellate court “reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo.” Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
To merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently is insufficient. Rather, before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Harris, 288 Kan. at 416.
The court ultimately rejected Adams' motions for new trial. In its ruling, the district judge stated:
“The ineffective assistance of counsel argument is probably the weakest argument presented by counsel and the defendant in that it's this court's recollection firsthand that the defendant's substantial criminal rights were protected at every stage of these proceedings vigorously and within the boundaries of the law by his trial counsel....
“There is—it was an open file, as I recall. And there was absolutely no evidence or particularity brought to the court's attention that would imply anything whatsoever of a Brady source that the defendant did not have and was not allowed to pursue. There was no evidence of a third party, third person, other guy. Based upon all of the evidence presented during the course of this trial by both sides, it was apparent to the court and certainly the jury that the only one with an opportunity to have committed this crime was, in fact, the defendant.
“I think the record will bear out that there was no ineffective assistance of counsel by trial counsel. Certainly the criteria necessary to prove the same has not been met at this hearing.”
The district court did make some factual findings regarding some of Adams' arguments. However, even if the district court failed to make specific findings of fact and conclusions of law an appellate court may review the defendant's assertions when the record on appeal is sufficient for resolution. See State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000); State v. Paredes, 34 Kan.App.2d 346, 349, 118 P.3d 708 (“The record is sufficiently complete for this court to decide Paredes' ineffective assistance of counsel argument. We see no reason to remand the case to the trial court for consideration of the issue.”), rev. denied 280 Kan. 989 (2005).
We find the record is sufficient to conduct a thorough review of Adams' argument.
Failure to subpoena the victim's case worker
In Adams' motions for new trial, his first allegation of ineffective assistance of counsel was his trial counsel's failure to subpoena Pavlovic's case worker as a witness. However, in his motions there is no indication as to what this witness would testify to or how her testimony would be beneficial to Adams' case. Adams failed to show to the district court why this witness would benefit his theory of defense in his motions for new trial and at the hearing on the motions. Whether or not the district court made factual findings on this particular issue, Adams did not show in his motions, at the hearing, or in his appellate brief how or why this particular witness could have been helpful at trial. See State v. Gonzales, 289 Kan. 351, 359, 212 P.3d 215 (2009) (mere conclusory statements are insufficient to satisfy the burden of proof necessary to find ineffective assistance of trial counsel). Therefore, the district court did not abuse its discretion regarding this particular allegation of ineffective assistance of counsel.
Failure to collect and test certain evidence
Adams' second claim of error was that his trial counsel was ineffective for failing to collect and have tested his clothing from the night of the incident, the crime scene, and the cooking pan used as the alleged weapon. Specifically, regarding his clothing, Adams' contends that if he had done what the State alleges, blood would have been all over his clothing. However, as the State points out, at trial Adams admitted to having Pavlovic's blood on his clothing because he attempted to hold her after he saw her injuries. In addition, Adams admitted to touching the cooking pan when he moved it from the bed to the kitchen sink. There appears to be no reason to have this particular evidence tested because the tests would not have exonerated Adams because he admitted that the blood on his clothes was Pavlovic's blood and that he touched the cooking pan when he moved it from one room to another. Therefore, the district court did not abuse its discretion regarding this particular allegation of ineffective assistance of counsel.
Cross-examination of McCarter
Adams' third claim of error was that his trial counsel failed to rigorously cross-examine McCarter on his inconsistent statements between talking to detectives on the night of the incident and the trial. When he spoke with detectives, McCarter stated that when he entered the bedroom, he saw Adams standing over Pavlovic with the cooking pan in his hand. At trial and the preliminary hearing, McCarter testified that when he entered the bedroom, he saw Adams sitting in a chair holding the cooking pan and Pavlovic was slumped between his legs.
Although the statements may be inconsistent with each other regarding Adams' location within the bedroom, the context is identical. Basically, both of McCarter's statements indicate that Adams was the only one in the room with Pavlovic, she was slumped on the floor, and Adams was holding the cooking pan. In essence, it would have been unhelpful for Adams' trial counsel to question McCarter on his inconsistencies because in most respects, the statements are the same. Therefore, the district court did not abuse its discretion regarding this particular allegation of ineffective assistance of counsel.
Cross-examination of Pavlovic
Adams argues that his trial counsel was ineffective for failing to fully cross-examine Pavlovic regarding whether she had help remembering the incident. Adams asserts that during her cross-examination Pavlovic stated that “she did not remember what had happened to her, and that she had help in remembering what happened to her.”
There is no indication in the record that Pavlovic ever stated that she could not remember the incident and that someone helped her remember what happened. The burden is on the appellant to designate a record to support a claim of error at the trial court. Without such a record, the claim of alleged error fails. State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). Because Adams failed to properly designate the record and support his argument with facts in the record, his claim lacks merit.
In sum, the district court did not abuse its discretion when it denied Adams' motions for new trial pertaining to his allegations of ineffective assistance of counsel.
Exclusion of Evidence of an Unprosecuted Rape Allegation by the Victim
Adams argues that the district court improperly excluded two pieces of evidence. First, he contends the district court erred when it excluded evidence of an unprosecuted rape allegation made by Pavlovic. Adams contends that the rape report was a false report and he should have been allowed to admit it as evidence to question Pavlovic's credibility. In addition, Adams asserts that he should have been allowed to cross-examine Pavlovic on her bipolar disorder in order to place her credibility into question.
When reviewing a district court's decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). All relevant evidence is admissible unless statutorily prohibited. K.S.A. 60–407(f). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b). There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan 252, 261–62, 213 P.3d 728 (2009). Evidence is probative if it has “ ‘any tendency in reason to prove’ “ a fact. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008) (quoting K.S.A. 60–401[b] ). The issue of whether evidence is probative is reviewed under an abuse of discretion standard, whereas the materiality of evidence is reviewed de novo. State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010). However, even if evidence is both probative and material, the trial court must still determine whether the probative value of the evidence outweighs its potential for producing undue prejudice. Appellate courts review this determination for abuse of discretion. State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009).
Unprosecuted rape allegation
Adams contends the district court erred when it excluded evidence of an unprosecuted rape allegation made by Pavlovic. Adams contends that the rape report was a false report and he should have been allowed to admit it as evidence to question Pavlovic's credibility. It should be noted that Adams was not the alleged rapist in the report. Moreover, there is nothing in the record that indicates that the report was false. The only indication is that Pavlovic did not wish to prosecute the case and it was eventually dropped. The district court excluded the rape report because of its lack of relevance. It appears that the unprosecuted rape allegation is neither probative nor material. Because the report cannot be said to be false, there is no way it could be used to question Pavlovic's credibility. Thus, the district court did not abuse its discretion when it determined that the report was not relevant.
Evidence of the effects of medication the victim took for her bipolar disorder
Adams asserts that he should have been allowed to cross-examine Pavlovic on her bipolar disorder in order to place her credibility into question. In that regard, defense counsel attempted to question Pavlovic on the particular medications she was taking for her bipolar disorder. The State objected, arguing that the medications were irrelevant to her ability to remember and testify accurately. The district court sustained the objection ruling that the medication was irrelevant. Even if defense counsel had been able to ascertain what medications Pavlovic was taking either at the time of the alleged incident or on the day of trial, there was no expert witness to inform the jury how those medications would have potentially affected Pavlovic's memory or accuracy. Therefore, the district court did not abuse its discretion when it determined that Pavlovic's medications were irrelevant.
Motion for Mistrial
Adams contends that the district court abused its discretion when it denied his motion for mistrial. He asserts two bases for a mistrial.
Lack of black males on the jury panel
Adams asserts that his right to impartial jury was violated because the jury panel did not have any black males on it. In addition, Adams argues that the jury instructions process in his case requires a mistrial.
On appeal, a trial court's decision denying a motion for mistrial is reviewed under an abuse of discretion standard. Judicial discretion is abused if the judicial decision (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. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
In evaluating a motion for mistrial, the trial court must use a two-step analysis. First, the court must decide if there is some fundamental failure of the proceeding. If a failure has occurred, the trial court must then assess whether it is possible to continue the trial without an injustice; in other words, the trial court must decide if the damaging effect of the prejudicial conduct can be removed or mitigated by an admonition or instruction to the jury. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial. Ward, 292 Kan. at 550.
Adams contends that he was denied the right to an impartial jury because no black males were on the jury panel. Adams' claim appears to be conclusory at best. He does not explain how or why the lack of black males on his jury panel would deem the panel impartial. A point raised incidentally in a brief and not argued there is deemed abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). An issue upon which a defendant fails to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority will be deemed abandoned. Berriozabal, 291 Kan. at 594.
Incorrect jury instruction
Adams' next argument is that his motion for mistrial should have been granted because the district court gave an incorrect instruction to the jury, but it then retracted the instruction and asked the jury to begin its deliberations all over again with a new set of instructions without considering the incorrect instruction.
At the close of the evidence, the district court instructed the jury on attempted second-degree murder-intentional and attempted second-degree murder-unintentional but in a reckless manner, as well as the lesser included offenses. Adams did not object to the instructions, although he did seek some additional instructions which are not at issue in this appeal. While the jury was deliberating and after it had asked what the difference was between intentional and unintentional attempted second-degree murder, the district court and the attorneys discovered that based upon our Supreme Court's holding in State v. Shannon, 258 Kan. 425, Syl. ¶ 2, 905 P.2d 649 (1995), attempted unintentional second-degree murder is not a crime in Kansas. After discovering the mistake, the district court created an entirely new set of instructions for the jury, reinstructed the jury with the new set of instructions, and ordered the jury to begin its deliberations anew without considering the incorrect instruction. Adams requested a mistrial because of the confusion created by the jury instructions, but the district court denied the motion.
Because the district court was able to correct the jury instructions before the jury finished deliberating, reinstructed the jury on the new instructions, and required the jury to begin its deliberations anew without considering the incorrect jury instruction, we find the district court did not abuse its discretion when it denied the motion for mistrial.
Aggravated Sentence
Based on Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), and Apprendi v. New Jersey, 530 U .S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Adams contends that the district court violated his Sixth and Fourteenth Amendment rights when it sentenced him to the presumptive aggravated sentence based on aggravating factors without presenting the aggravating factors to a jury and requiring the State to prove them beyond a reasonable doubt. Adams acknowledges our Supreme Court's ruling in State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008), and includes this issue solely to preserve it for federal review.
K.S.A. 21–4721(c) provides that an appellate court shall not review on appeal a sentence for a felony conviction that is (1) within the presumptive guidelines sentence for the crime, or (2) the result of a plea agreement between the State and the defendant which the trial court approved on the record. Where the imposed sentence is within the presumptive guidelines sentence, the appellate court lacks jurisdiction to consider the appeal. Johnson, 286 Kan. at 851–52.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). It does not appear that our Supreme Court is departing from the position it holds in Johnson as it has reaffirmed its holding in State v. Gaona, 293 Kan. 930, 958, 270 P.3d 1165 (2012).
Adams' criminal history score was B and his conviction was for a severity level 3 person felony. Under K.S.A. 21–4704, the presumptive prison sentencing range was 228 months (aggravated), 216 months (standard), or 206 months (mitigated). The district court sentenced Adams to 228 months of imprisonment. This court must dismiss this issue for lack of appellate jurisdiction because Adams' sentence was within the presumptive guidelines sentence.
Criminal History Score
Adams asserts that the district court erred when it sentenced him based on a criminal history score that relied on prior convictions which were not proven to a jury beyond a reasonable doubt. Adams relies on Apprendi, 530 U.S. 466, but acknowledges our Supreme Court's holding State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and solely raises this issue to preserve it for federal review.
Absent some indication that our Supreme Court is departing from its position in Ivory, this court is bound thereby. Jones, 44 Kan.App.2d at 142. Our Supreme Court continues to apply its decision in Ivory without divergence. See, e.g., State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011) (affirming Ivory, 273 Kan. at 46–48). Similarly, the United States Supreme Court recently reaffirmed that prior convictions need not be proven to a jury beyond a reasonable doubt. See James v. United States, 550 U.S. 192, 213–14, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). This court is duty bound to follow Ivory. Thus, we reject Adams' claim that his rights were violated under Apprendi.
Affirmed in part and dismissed in part.