State v. Owens

1

State of Kansas, Appellee, v. Dane Owens, Appellant.

No. 120, 753

Supreme Court of Kansas

October 15, 2021

SYLLABUS BY THE COURT

1 K.S.A. 2020 Supp. 60-460(d)(3), the contemporaneous statement exception to the hearsay rule, allows a district court judge to admit testimony of a declarant who is unavailable as a witness, if the declaration was made at a time when the matter had been recently perceived by the declarant, while the declarant's recollection was clear, and the declaration was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.

2 K.S.A. 60-445 authorizes the district court to exclude relevant evidence if its probative value is substantially outweighed by the risk of unfair prejudice. But Kansas law favors the admission of relevant evidence, and the exclusion of relevant evidence under K.S.A. 60-445 is an extraordinary remedy that should be used sparingly.

3. Under K.S.A. 22-3423(1)(c), a trial court may declare a mistrial if there was prejudicial conduct either inside or outside the courtroom that makes it impossible for the trial to proceed without injustice to either the defendant or the prosecution. This statute creates a two-step process. First, the trial court must determine if there was some fundamental failure of the proceeding. If so, the trial court moves to the second step and assesses whether it is possible to continue without an injustice. In other words, the trial court must decide if the prejudicial conduct's damaging effect can be removed or mitigated by an admonition, jury instruction, or other action. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so declare a mistrial. On appeal, the court's abuse of discretion inquiry is divided into two parts, asking: (1) Did the trial court abuse its discretion when deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion when deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice?

4. The State committed prosecutorial error in its closing argument by asserting that the defendant's medical records reflected instances where the defendant missed scheduled appointments, but the admitted records did not substantiate this argument. By doing so, the State improperly argued facts not in evidence.

5. This court may reverse a defendant's convictions for cumulative error when the totality of the circumstances demonstrate that the defendant was substantially prejudiced by cumulative errors and was denied a fair trial.

6. Kansas' criminal restitution scheme implicates a defendant's right to trial by jury in section 5 of the Kansas Constitution Bill of Rights by converting restitution orders, in which a judge determines the damages proximately caused by the criminal act, into civil judgments, thus bypassing the traditional function of juries to determine civil damages.

Therefore, a criminal defendant will not be faced with a civil judgment for criminal restitution unless it has been obtained separately through a civil cause of action.

Appeal from Sedgwick County District Court; Kevin J. O'Connor, judge.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

OPINION

WALL, J.

A jury convicted Dane Owens of first-degree felony murder and aggravated burglary in connection with the shooting death of his ex-girlfriend, Rowena Irani. Owens appeals, arguing that multiple evidentiary, trial, and prosecutorial errors require reversal of his convictions.

However, upon thorough examination of the record and briefing, we determine that only two potential errors occurred during the proceedings. First, the prosecutor committed error by referring to a fact not in evidence during closing argument. But this error primarily affected Owens' defense to first-degree, premeditated murder, and the jury acquitted Owens of this offense. This fact, along with other circumstances, demonstrate the prosecutorial error was harmless.

Second, we presume, without deciding, that the State's failure to disclose the findings of its pseudo-expert witness before trial constituted a fundamental failure in the proceedings. However, the presumed error did not inhibit Owens' defense, and the trial court implemented ameliorative measures to mitigate potential prejudice, which made it possible to proceed with the trial without injustice. Thus, the record confirms the district court did not abuse its discretion in denying Owens' motion for mistrial.

These two errors were not interrelated in a way that amplified their prejudicial force when viewed together. Whether viewed independently or in the aggregate, these errors did not deprive Owens of a fair trial.

As for Owens' sentence, the district court's restitution order does implicate section 5 of the Kansas Constitution Bill of Rights under the current statutory scheme. Several statutory provisions serve to convert a district court's restitution order, in which a judge determines the damages proximately caused by the criminal act, into a civil judgment. Through this process, the statutes bypass the traditional function of Kansas juries to determine civil damages. However, based on our holding in State v. Arnett, 314 Kan.__, (No. 112, 572, this day decided), the constitutional infirmity is cured by severing the offending statutory provisions. By severing these provisions, Owens will not be subject to a civil judgment for his criminal restitution order, unless it is obtained separately through a civil cause of action. Accordingly, the district court's restitution order satisfies constitutional requirements.

For these reasons, we affirm Owens' convictions and restitution order.

Factual and Procedural Background

On October 3, 2016, Owens entered the home of his ex-girlfriend Rowena and fired a single bullet, killing Rowena. Police arrested Owens the same day and charged him with premeditated first-degree murder-or felony murder in the alternative-as well as aggravated burglary.

Pretrial Evidentiary Issues

Before trial, the State moved to determine the admissibility of hearsay statements by Rowena. The State sought to introduce testimony from Rowena's brother, Rooshad Irani, about statements Rowena had made to him-both in person and via text message- concerning her relationship and breakup with Owens.

Specifically, the State sought to admit Rooshad's testimony that Rowena told him that Owens said he had "dug a hole" for an ex-girlfriend after she broke up with him. The State argued this evidence was relevant in establishing Rowena's state of mind at the time of the shooting. Owens opposed the admission of this "dug a hole" testimony on several grounds. The district judge found the statements admissible under K.S.A. 2020 Supp. 60-460(d), the contemporaneous statement hearsay exception, because they went to Rowena's state of mind and the fact that Owens would not have been welcome in her home. The district judge recommended a limiting instruction.

The State also sought to admit the following text messages between Rowena and Rooshad:

Sender

Message Content

Rooshad

"You and dane working a few things out?"

"His fb popped up as complicated relationship."

Rowena

"lord"

"he called yesterday saying he wanted to work it out and to give him a chance all that i told him to give me some time to think"

"mom texted me saying she had a strong feeling he was going to physically abuse me if i went back"

Rooshad

"Ok? Bas? That's it?"

Rowena

"mhm"

Rooshad

"Kk"

"Was it a decent convo or was he being an ass"

Rowena

"it was alright i guess he just kept trying to justify everything"

"saying i need to trust him and let things flow and that he's not telling me to give anything up"

"my thing like why go back and then have the same feelings in a month"

Rooshad

"Yup"

"Don't do it"

Rowena

"i have therapy tomorrow so i'm kinda just waiting to talk to him about it"

Rooshad:

"Just leave it alone and when he asks tell him you thought long and hard and decided it's best for you 2 to go your separate ways"

"Do I need to intervene?"

Rowena

"no"

"not yet anyway"

Rooshad

"K"

Rowena

"what's the worse that'll happen hell take a rifle and shoot me [emoji smiling with bead of sweat on forehead]"

Rooshad

"Shut up"

Rowena

[three emojis smiling with beads of sweat on foreheads]

Rooshad

[sends a screenshot of texts Owens sent him asking about Rowena]

Rowena

"story of my life"

Rooshad

"Yup"

Rowena

"getting on my fuckin nerves"

Rooshad

"Yup"

Rowena

[emoji smiling with bead of sweat on forehead; gun emoji pointed at other emoji]

The State argued these texts were relevant to Rowena's state of mind. Owens argued they were not probative of the mindset the State was attempting to establish because the emojis suggested Rowena truly did not think Owens would shoot her and, instead, she was just annoyed with him. Further, Owens argued "under the facts of this case, where [he was] accused of intentionally shooting her in the head, that those are certainly more prejudicial than probative." The district judge ruled that the texts were admissible.

Prosecutor's Opening Statement

The case proceeded to a jury trial. In its opening statement, the State informed the jury that Detective Robert Chisholm had tried on Owens' sling (which Owens wore following shoulder surgery on September 29, 2016) and used a gun to reconstruct or test Owens'...