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No. 93,448

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

CHRISTOPHER E. ZVOLANEK,

Appellant.

1. As a general rule, a party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. Even constitutional grounds for reversal asserted for the first time on appeal are generally not properly before the appellate court for review.

2. It is constitutionally impermissible for the State to elicit evidence at trial of an accused's post-Miranda silence.

3. Prosecutorial misconduct to which there was no objection at trial may nonetheless be reviewed on appeal where the prosecutor's misconduct is so prejudicial or constitutes a constitutional violation which, if not corrected, will result in injustice or a miscarriage of justice. If a claimed error implicates a defendant's right to a fair trial, the appellate standard of review is the same regardless of whether the issue of prosecutorial misconduct is preserved by an objection at trial.

4. When the State has filed a motion for a durational departure, evidence that is relevant only to a departure factor should be presented to the jury only during the bifurcated departure hearing after the defendant has been found guilty of the crime.

5. An appellate court's review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal.

6. In the second step of the two-step analysis on prosecutorial misconduct, the appellate court considers three factors to determine whether a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors.

7. The term "ill will," as used in the context of prosecutorial misconduct, requires a showing of malice or bad faith which is evidenced in the record.

8. Under the facts of this case, the defendant is not entitled to a new trial based solely on misconduct of the prosecuting attorney.

9. Generally, issues not raised before the trial court cannot be raised on appeal.

Appeal from Norton District Court; WILLIAM B. ELLIOTT, judge. Opinion filed October 21, 2005. Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

R. Douglas Sebelius, assistant county attorney, and Phill Kline, attorney general, for appellee.

Before HILL, P.J., PIERRON and MALONE, JJ.

MALONE, J.: Christopher E. Zvolanek appeals his convictions of burglary of a dwelling and misdemeanor theft. Zvolanek claims he was denied a fair trial because of prosecutorial misconduct. Specifically, Zvolanek argues that the prosecutor committed misconduct by offering evidence of his post-Miranda silence and by eliciting testimony regarding the sentimental value of the property taken by Zvolanek. Finally, Zvolanek claims there was insufficient evidence to support his conviction of burglary of a dwelling as opposed to burglary of a nondwelling.

On January 3, 2004, at approximately 2 a.m., Lucas Maddy was watching television in the family home when he observed a vehicle turn from a back road on his property. The Maddy family resided on a farm approximately 8 miles west of Norton, Kansas. In addition to the Maddy family residence, several other buildings occupied the property, including a two-bedroom house where the family had previously resided. The Maddys used the older residence for storage.

When Lucas saw the vehicle coming from the area of the storage house, he got into his father's pickup and followed the vehicle. Observing several items of personal property belonging to the Maddy family in the vehicle's trailer, Lucas stopped the vehicle, which was driven by Zvolanek. Eventually, Lucas succeeded in ordering Zvolanek out of his vehicle and into Lucas' pickup. Lucas then drove Zvolanek to the sheriff's office where Zvolanek was placed into custody. Zvolanek provided no explanation to either Lucas or the sheriff as to why he had taken the property.

Zvolanek was charged with burglary and felony theft. Prior to trial, the State filed a motion for dispositional and durational departure. A jury trial was commenced on July 1, 2004. Zvolanek testified that he had a hearing impairment. Zvolanek further testified that as a self-employed handyman, he had received a phone call on January 2, 2004, requesting that he haul trash from a white house located either 7 or 11 miles outside of Norton. However, Zvolanek testified, due to a miscommunication regarding the location of the house to be cleaned up, he mistakenly hauled things away from the Maddys' storage property. At the conclusion of the trial, the jury found Zvolanek guilty of burglary and misdemeanor theft. The trial court conducted a separate hearing on the departure motion, but the jury was unable to agree on any aggravating factors for a departure.

Zvolanek's criminal history classification was category C, and he received a presumptive sentence of 29 months' imprisonment for the burglary conviction and 12 months in the county jail for the misdemeanor theft conviction. He was placed on probation for 24 months. Zvolanek timely appeals. Additional facts will be provided to address the issues.

On appeal, Zvolanek complains that inadmissible evidence was presented to the jury, which denied him a fair trial. Specifically, Zvolanek complains about evidence of his post-Miranda silence and evidence regarding the sentimental value of the property taken from the Maddys. In general, the admission of evidence lies within the sound discretion of the trial court. State v. Holmes, 278 Kan. 603, 625, 102 P.3d 406 (2001).

Furthermore, as a general rule, a party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. K.S.A. 60-404; State v. Kunellis, 276 Kan. 461, 477, 78 P.3d 776 (2003). Even constitutional grounds for reversal asserted for the first time on appeal are generally not properly before the appellate court for review. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). Here, Zvolanek failed to object at trial to any of the evidence he now claims on appeal was improperly admitted. However, for the first time on appeal, Zvolanek frames the evidentiary issues as prosecutorial misconduct and asks this court to grant him a new trial. We will first outline the evidence which Zvolanek claims was improperly admitted and then apply our standard of review for prosecutorial misconduct to determine if Zvolanek is entitled to a new trial.

Doyle violations

Zvolanek first claims the prosecution violated his right to a fair trial by raising his post-Miranda silence before the jury.

"It is constitutionally impermissible for the State to elicit evidence at trial of an accused's post-Miranda silence. Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976); State v. Gadelkarim, 256 Kan. 671, 685, 887 P.2d 88 (1994). A Doyle violation occurs when the State attempts to impeach a defendant's credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent. State v. Brinkley, 256 Kan. 808, 820, 888 P.2d 819 (1995)." State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998).

The Doyle prohibition against using post-Miranda silence to impeach a defendant is rooted in the Miranda warning's implicit promise that silence during custodial interrogation will carry no penalty. State v. Scott, 28 Kan. App. 2d 418, 427, 17 P.3d 966, rev. denied 271 Kan. 1041 (2001).

Zvolanek alleges several Doyle violations. First, Zvolanek takes issue with the following exchange, which occurred during the State's direct examination of Undersheriff Rich Wenzl:

"Q. So what did you proceed to do at that point?

"A. I came to the sheriff's office here in Norton, I interviewed Lucas Maddy and his mother, Patsy Maddy, and then I got their statements from them, and then I went to Mr. Zvolanek and Mirandized him. I was going to interview him, but he informed me he wanted an attorney, so I ended the interview with him at that time."

There was no objection or motion by the defense to strike the testimony. The testimony constituted a Doyle violation. However, we note that the witness' answer was nonresponsive to the prosecutor's specific question. Although the prosecutor's question was broad, we certainly cannot conclude that the prosecutor was intentionally attempting to elicit inadmissible evidence by asking the question.

Zvolanek also contends several Doyle violations occurred during the State's cross-examination of Zvolanek. First, Zvolanek complains of the following exchange:

"Q. Mr. Zvolanek, why is it that you haven't given either law enforcement, the Maddys, or myself this story prior to today?

"A. Because I haven't had a chance to testify before today, and so finally I get my chance to testify now.

"Q. Were you present during your preliminary hearing?

"A. Yes, I was.

"Q. Wasn't that an opportunity to fill law enforcement in on your version of the events?

"A. But I never had the opportunity at the preliminary hearing because it was, this was my first experience in the court system, and so I wasn't sure what I needed to do, and so, you know, I wanted to, you know, I figured this would be my day to give my testimony."

Next, Zvolanek takes issue with the following exchange:

"Q. Now, isn't it true, Mr. Zvolanek, that you had ample opportunity to give your version of what happened, your explanation of why you were out there, to Undersheriff Wenzl after this incident had occurred?

"A. I wasn't able to, I didn't tell him the whole story. I just told them about the caller ID and that Hill City police refused to put a trace on that . . . ."

Finally, Zvolanek complains of the following exchange:

"Q. Why didn't you tell Undersheriff Wenzel that you had made a mistake as to where you were going to pick up these goods?

"A. He read the Miranda rights to me and I had the right to remain silent, and if I said anything, it could have been used against me in the courts, so I decided not to say anything to Sheriff Wenzl, Undersheriff Wenzl at that time until we came to court."

All of this evidence constituted clear Doyle violations which were consciously elicited by the prosecutor. Zvolanek makes no complaint that the prosecutor highlighted the Doyle violations by referring to the evidence during closing argument. The State argues that Zvolanek opened the door for this testimony based upon the following exchange during his direct examination:

"Q. Did you try and explain to [Lucas Maddy] that it was a misunderstanding?

"A. Yes, but I was, I was frightened because, you know, he was acting pretty aggressive. He was a little aggressive, and, you know, I thought I better keep quiet and, you know, until we could go to court, or before I could tell my story that it was just a matter of misunderstanding and I could clear things up."

Contrary to the State's assertion, this exchange during Zvolanek's direct examination did not open the door for the prosecutor's questions on cross-examination. A Doyle violation only occurs when the State attempts to elicit evidence at trial of an accused's post-Miranda silence to the police. Edwards, 264 Kan. at 195. On direct examination, Zvolanek was asked why he never offered an explanation of his actions to Maddy, the victim of the alleged burglary. This did not raise a Doyle issue, and the prosecutor was free to explore that same issue on cross-examination. However, the prosecutor went much further and questioned Zvolanek about his post-Miranda silence with the police, which constituted a clear Doyle violation. Likewise, Zvolanek's testimony on direct examination that he would save his explanation "until we could go to court" did not allow the prosecutor to ask why Zvolanek did not testify at his preliminary hearing. Zvolanek had the absolute right to save his explanation for the trial.

The record reflects an absence of contemporaneous objections on any grounds to the complained-of testimony. Furthermore, the defense never moved to strike the testimony, never requested an admonishment from the court or a mistrial, and never requested a cautionary instruction. The defense never even raised the issue in any postjudgment motion for relief from the conviction. Consequently, this issue would not normally be properly preserved for appeal.

There is a general exception to the contemporaneous objection rule which states that an appellate court has the power to consider a new issue on appeal "in exceptional circumstances . . . where consideration of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights." State v. Clemons, 251 Kan. 473, 483, 836 P.2d 1147 (1992). Zvolanek has not asked this court to apply that exception in order to review the Doyle violations committed in this case. In any event, our Supreme Court has specifically stated that in order to challenge a question or comment under Doyle, a defendant must lodge a timely and specific objection. State v. Haddock, 257 Kan. 964, 973, 897 P.2d 152 (1995), overruled on other grounds State v. James, 276 Kan. 737, 79 P.3d 169 (2003); see State v. Hazley, 28 Kan. App. 2d 664, 668, 19 P.3d 800 (2001); but see State v. Fisher, 222 Kan. 76, 84, 563 P.2d 1012 (1977) (even where state procedural grounds bar direct review of an issue, federal habeas corpus relief is still available).

Despite the absence of a contemporaneous objection, Zvolanek asks us to review this issue, claiming for the first time on appeal that the Doyle violations constituted prosecutorial misconduct. Our Supreme Court has stated that prosecutorial misconduct to which there was no objection at trial may nonetheless be reviewed on appeal where the prosecutor's misconduct is highly prejudicial or constitutes a constitutional violation which, if not corrected, will result in injustice or a miscarriage of justice. State v. Puckett, 230 Kan. 596, Syl. ¶ 1, 640 P.2d 1198 (1982). If a claimed error implicates a defendant's right to a fair trial, the appellate standard of review is the same regardless of whether the issue of prosecutorial misconduct is preserved by an objection at trial. State v. Doyle, 272 Kan. 1157, 1164, 38 P.3d 650 (2002).

Most reported cases reviewing the issue of prosecutorial misconduct address statements or comments made by prosecutors during closing argument. However, our Supreme Court has recognized that eliciting inadmissible testimony may also constitute prosecutorial misconduct. See, e.g., State v. Tosh, 278 Kan. 83, 94, 91 P.3d 1204 (2004); Kunellis, 276 Kan. at 477-79; State v. Flynn, 274 Kan. 473, 491, 55 P.3d 324 (2002). Thus, we will review whether Zvolanek is entitled to a new trial based on the Doyle violations in the context of alleged prosecutorial misconduct. But first, Zvolanek raises one additional complaint about evidence presented in his trial.

Testimony regarding sentimental value of the property

Zvolanek complains about evidence regarding the sentimental value of the property taken from the Maddys. He takes issue with the following exchange during his cross-examination by the prosecutor:

"Q. Do these people [the Maddys] agree that you could keep the Norton community high school annual?

"A. I don't understand. I don't understand your question.

"Q. Did these people agree that you could keep a number of match box toys?

"A. What I understood on the phone was just to clean up and they told me to pick up the stuff that was there. There was no specifics about anything."

Zvolanek argues that these questions were designed to elicit irrelevant and prejudicial testimony. However, we conclude that these particular questions were relevant to Zvolanek's defense. Zvolanek's defense was that he had been requested to haul away junk and that he would be allowed to keep whatever property he took for his personal use. Thus, it was relevant for the prosecutor to point out that Zvolanek had hauled away items that were not junk and would probably have personal or sentimental value to the owners. See K.S.A. 60-401(b) ("relevant evidence" means evidence having any tendency in reason to prove any material fact).

However, Zvolanek also takes issue with the following exchange, which took place during the State's direct examination of Patsy Maddy:

"Q. Mrs. Maddy, how did you react when you saw the kinds of things that were taken from your property there south of your residence?

"A. Oh, I felt violated because I knew someone had been in my house and taken my things. There were some things that, if I would have lost completely, you know, like my grandma's high chair and things like that, you know, those things you can't ever get back. And it's not necessarily dollar value that they're worth, but more of a, you know, momento [sic] from my grandparents and things like that."

Zvolanek complains that this testimony was highlighted by the prosecutor with the following comment during closing argument:

"[Prosecutor] I think you can recall Mrs. Maddy's description when I asked her how did it make you feel when somebody took those things from you. And it rather turns up the intensity on theft and burglary when it's things like your husband's annual, your grandmother's rocking chair. Items that belonged to kids in the family, toys. Things of intrinsic value. Not things that perhaps Mr. McEwen could put much of a value on, but it's unimportant as to this when it is obviously between $500 and $25,000."

Zvolanek claims this testimony and comment had no relevance other than to incite the passions of the jury against him. The State responds by arguing that the victim-impact evidence was relevant to its departure motion. The State had filed a motion against Zvolanek for an upward durational sentence departure. This required a bifurcated trial and a separate determination by the jury that aggravating factors existed for a durational departure. K.S.A. 2004 Supp. 21-4718(b)(4). One of the aggravating factors cited by the State against Zvolanek was that his crime manifested abnormal callousness and disregard for the feelings and well-being of the victims.

The State is correct in asserting that the victim-impact evidence was relevant to the aggravating departure factor. However, what the State fails to realize is that this evidence should not have been presented to the jury during the guilt phase of Zvolanek's trial. Evidence that is relevant only to a departure factor should be presented to the jury only during the bifurcated departure hearing after the defendant has been found guilty of the crime. K.S.A. 2004 Supp. 21-4718(b)(5).

We agree with Zvolanek that the question and comment about how Maddy reacted to the theft of the property was irrelevant during the guilt phase of the trial. However, in the absence of a contemporaneous objection, this issue is preserved for appeal only in the context of prosecutorial misconduct.

Prosecutorial misconduct

Our review for an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005).

In the second step of the two-step analysis, the appellate court considers three factors to determine whether a new trial should be granted:

"(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. 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 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial] have been met." Tosh, 278 Kan. 83, Syl. ¶ 2.

As previously noted, most reported cases reviewing the issue of prosecutorial misconduct address statements or comments made by prosecutors during closing argument. The two-step analysis was developed to apply primarily in that context. However, the analysis can be adapted to also apply to allegations of prosecutorial misconduct involving the elicitation of inadmissible testimony.

The facts of each case must be scrutinized in determining whether prosecutorial misconduct entitles a defendant to a new trial. Tosh, 278 Kan. at 85. Here, we have no difficulty concluding that the prosecutor's Doyle violations were outside the wide latitude that the prosecutor is allowed in discussing or presenting the evidence. Likewise, the question and comment concerning the impact of the crime on the victim was irrelevant and improper during the guilt phase of the trial. Thus, we turn to the second step of the analysis to determine whether the misconduct constituted plain error denying Zvolanek a fair trial.

Regarding the prosecutor's reference to the sentimental value of the property, we again note that this testimony was relevant to Zvolanek's defense. We also note that Zvolanek was convicted of only misdemeanor theft and not felony theft as charged, so the jury certainly was not prejudiced against Zvolanek about the value of the property. The improper question and comment about the impact of the crime on the victim was relatively isolated. Zvolanek points out that victim-impact testimony has been found to constitute prosecutorial misconduct in other cases. See State v. Henry, 273 Kan. 608, 641, 44 P.3d 466 (2002); State v. Donesay, 265 Kan. 60, 89, 959 P.2d 862 (1998). However, the violations in Zvolanek's case were not nearly as egregious as the violations in Henry and Donesay.

The Doyle violations are more troubling. This court has previously considered whether a Doyle violation can contribute to a finding of prosecutorial misconduct. In Hazley, 28 Kan. App. 2d at 668, the court ruled that a Doyle violation, which had not been objected to at trial, was not properly before the court for review as an evidentiary issue. However, the court reversed the defendant's conviction based upon prosecutorial misconduct during closing argument, which included reference to the Doyle violation, along with several other flagrant comments. 28 Kan. App. 2d at 670. In State v. DuMars, 33 Kan. App. 2d 735, 747, 108 P.3d 448, rev. denied 280 Kan. ___ (2005), a Doyle violation was considered as one of many factors in finding reversible error based upon prosecutorial misconduct.

To determine whether the Doyle violations in Zvolanek's case constituted prosecutorial misconduct, we must consider whether there is any evidence of ill will on the prosecutor's part. The term "ill will" has not been defined by the Kansas appellate courts in the context of prosecutorial misconduct. However, we know that ill will must be something more than "gross and flagrant" conduct, because these are considered separate factors in the analysis.

Although not specifically defined, the term "ill will" has been equated with malice. See State v. Donahue, 197 Kan. 317, 319, 416 P.2d 287 (1966). The term has also been equated with a prosecutor's lack of good faith. See Tosh, 278 Kan. at 94. Thus, we conclude that the term "ill will," as used in the context of prosecutorial misconduct, requires a showing of malice or bad faith which is evidenced in the record.

In Zvolanek's case, if the prosecutor had continued with Doyle violations after being instructed by the court not to do so, ill will could be more easily inferred. For instance, if the prosecutor had violated an in limine order by eliciting the Doyle testimony, this could help establish ill will. See State v. Gleason, 277 Kan. 624, 641, 88 P.3d 218 (2004). However, this case did not present such a situation. Furthermore, the prosecutor in this case did not discuss or emphasize the improper Doyle evidence during closing argument.

A finding of ill will and prosecutorial misconduct should not be made lightly by an appellate court. The term "misconduct" has been defined as a dereliction of duty; unlawful or improper behavior. Black's Law Dictionary 1019 (8th ed. 2004). A finding of prosecutorial misconduct implies a violation of the Kansas Rules of Professional Conduct. One commentator has suggested that courts have an obligation to report prosecutorial misconduct to the Disciplinary Administrator's office. Gernon, Prosecutorial Misconduct in Kansas: Still Hazy After All These Years, 41 Washburn L.J. 245, 266-67 (2002).

Here, it is unclear whether the prosecutor was being intentionally overzealous by presenting inadmissible evidence or whether the prosecutor simply did not know better. Neither the defense counsel nor the trial judge attempted to intervene. The first scenario supports a finding of ill will, but the second scenario does not. There is nothing else in this case to establish malice or bad faith by the prosecutor. Based upon the totality of the record, we are unable to discern any ill will by the prosecutor in this case sufficient to support a finding of prosecutorial misconduct.

Finally, we note that the evidence of Zvolanek's guilt was strong. Zvolanek's act of hauling away the Maddys' personal property at approximately 2 a.m. was strongly suggestive of his criminal intent. Even Zvolanek's explanation at trial that he had been directed to the wrong house did not explain why he was hauling away property in the middle of the night. Zvolanek provided absolutely no corroborating evidence of his defense at trial.

A defendant in a criminal case is entitled to a fair trial, but not a perfect one. State v. Chandler, 252 Kan. 797, 801, 850 P.2d 803 (1993). Zvolanek's trial was far from perfect. But, in the absence of contemporaneous objections, Zvolanek's evidentiary complaints, which he makes for the first time on appeal, can only be reviewed in the context of prosecutorial misconduct. Although this case may be closer than some others, we decline to find that Zvolanek is entitled to a new trial based solely on misconduct of the prosecuting attorney.

Sufficiency of evidence supporting burglary of a dwelling

Finally, Zvolanek contends there was insufficient evidence supporting his conviction of burglary of a dwelling. Burglary of a dwelling is classified as a person felony, whereas burglary of a structure which is not a dwelling is classified as a nonperson felony. K.S.A. 21-3715. Zvolanek claims that the Maddys' older residence which was used for storage did not constitute a dwelling.

This issue, which does not involve prosecutorial misconduct, is being raised for the first time on appeal. Generally, issues not raised before the trial court cannot be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). Although there are some exceptions to the general rule, we do not find that any of the exceptions apply in this case. This issue is not properly preserved for appeal. Nevertheless, we have reviewed the record and conclude there was sufficient evidence to support Zvolanek's conviction for burglary of a dwelling.

Affirmed.

END