State v. Owens

496 P.3d 902

STATE of Kansas, Appellee,

v.Dane OWENS, Appellant.

No. 120,753

Supreme Court of Kansas.

Opinion filed October 15, 2021.

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.

The opinion of the court was delivered by 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. ––––, 496 P.3d 928 (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"

Sender	Message Content
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"

Sender	Message Content
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’ description of how he wielded the gun inside the sling at the time of the shooting. Based on this reconstruction, the State said Detective Chisholm would testify that Owens’ account of the shooting was not feasible.

After opening statements, Owens moved for a mistrial, arguing the State committed discovery violations by failing to disclose Detective Chisholm's reconstruction analysis the prosecution had described in opening remarks. The State argued there was no discovery violation; the gun and the sling would both come in as evidence, and the detective could do this reenactment in front of the jury. The State further argued the jury itself could do the same with the gun and sling once it deliberated in the jury room. The district court denied the request for mistrial.

Trial Evidence

During the trial, Detective Chisholm testified about his interrogation of Owens the day of the shooting. According to Chisolm, Owens said he drove his truck to Rowena's neighborhood, parked, and walked to her home. He opted not to park in the Irani family's driveway because he did not want them to call the police. Once there, he saw one of the family's dogs in the front yard. He let the dog inside and followed it into the home. After entering the home, Owens said Rowena "came around the corner, he was startled, she was startled, and the gun just went off."

Owens then admitted he pulled the trigger. When Detective Chisholm asked why, Owens "kind of shrug[ged] his shoulders" and said "I mean—I mean, pretty much accepted the fact that we were done." Owens claimed he "wasn't trying to hurt anyone," and while admittedly angry, he had typically been able to control his emotions. But when asked about the breakup with Rowena, Owens said he was " ‘blindsided’ " by it and was tired of being " ‘fucked over.’ " He said he took the gun to Rowena's house "so she would take him seriously."

Detective Chisholm said Owens informed law enforcement that he threw his handgun, magazine, and Rowena's cell phone in ponds near his parents’ house. Police were able to fish out the gun, a .45 caliber Smith and Wesson. Detective Chisholm testified the gun had a 7-pound trigger pull and a trigger safety preventing the weapon from firing unless a finger was on the lower part of the trigger. Owens told Detective Chisholm that he always carried the handgun around, but it was usually in a backpack. Owens said he had the gun inside the sling he was wearing on his right arm when he entered Rowena's home. He also informed Detective Chisholm that he is right-handed but shoots left-handed.

Before trial, Detective Chisholm decided to see if it was feasible to hold the gun inside the sling; he tried on the sling and held a gun inside it in the way Owens described. Detective Chisholm went through this same reconstruction while on the stand. Through this process, Detective Chisholm determined the gun's slide would have been obstructed by the sling. He reasoned that, if the slide was obstructed by the sling, the shell casing would not have ended up where it was ultimately found in the Iranis’ home. Further, Owens told Detective Chisholm that as he left the Iranis’ home, he had a live bullet in the gun's chamber. To Detective Chisholm, this suggested the gun's slide likely was not obstructed at the time of the shooting. Detective Chisholm also observed no burns, abrasions, or other marks on the sling indicating that a...