Opinion
No. 107,651.
2013-03-15
STATE of Kansas, Appellee, v. Ruben Nelson BENNETT, Jr., Appellant.
Appeal from Shawnee District Court; Philip Sieve, Judge. John A. Fakhoury, Fakhoury Law Office, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Philip Sieve, Judge.
John A. Fakhoury, Fakhoury Law Office, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
After a bench trial, Bennett was convicted of one count of domestic battery. On appeal, Bennett raises two separate speedy trial arguments and one sufficiency argument. Specifically, Bennett contends that both his statutory and constitutional speedy trial rights were violated and that the State failed to present sufficient evidence to support his conviction. We disagree. Bennett's statutory speedy trial right was not violated because his trial commenced within the statutory time frame, and there is no indication that the State tried to manipulate the speedy trial statute to its advantage. Moreover, his constitutional speedy trial rights were not violated. Finally, there was sufficient evidence to support Bennett's domestic battery conviction. Accordingly, we affirm.
The underlying facts of this case are undisputed. On October 27, 2010, Michelle Richards went to the Topeka police station to report a domestic battery. Once there, Richards talked to Officer John Soden. Richards told Officer Soden that when she came home from work on October 24, 2010, Bennett, her live-in boyfriend, started yelling at her. Richards told Officer Soden that Bennett had told her to get her “sorry worthless ass out of his house.” As Richards was gathering clothes to leave, she alleged that Bennett locked her in the bedroom, punched her repeatedly in the face, choked her, and tried to place a rope around her neck. After Richards told Officer Soden what happened, she wrote and signed a statement regarding the incident. Officer Soden then took photographs of Richards' injuries. Bruising on Richards' face and neck was noted in the photographs.
Bennett was later charged with two counts of domestic battery. On January 19, 2011, Bennett was arraigned, and he entered a plea of not guilty. Bennett's trial was set for May 17, 2011. On the scheduled trial date, the State moved for a continuance so that Richards, the alleged victim, could be appointed counsel. Apparently, Richards planned to recant her previous report, stating that she had made the story up. The trial court then appointed Richards counsel and rescheduled the trial for June 15, 2011. On June 15, 2011, the State filed another continuance motion because Officer Soden was unavailable. The trial court then rescheduled Bennett's trial for July 12, 2011.
Bennett's case proceeded to a bench trial as scheduled on July 12, 2011. At trial, the State called Officer Soden to testify. Officer Soden testified to what Richards had told him at the police station and explained what he saw when he talked to her. Officer Soden testified that he noticed bruising under Richards' chin, on her throat, and on her arm. Officer Soden also testified that he saw what he believed to be a condition called petechial hemorrhaging, which is the rupturing of blood vessels in the eye that can occur when someone has been choked.
After Officer Soden's testimony, the State called Richards to the stand. When called to testify, Richards decided to invoke her Fifth Amendment right against self-incrimination. Thus, she did not testify about the events that allegedly occurred in October 2010. Because Richards decided to invoke her Fifth Amendment rights, the State moved for a recess so that it could obtain a “use immunity” for Richards' testimony. Over Bennett's objection, the trial court recessed the trial court to August 23, 2011, to allow the State to obtain a use immunity.
On August 23, 2011, both Bennett and Richards failed to appear at trial. The trial court recessed the trial to October 18, 2011. But on October 18, 2011, the trial judge who heard the first day of trial was unavailable. The State moved for another recess so that the same trial judge could hear the remainder of the trial. The trial court granted the continuance over Bennett's objection. The trial was scheduled to reconvene on November 1,2011.
On November 1, 2011, Bennett's trial resumed and the State called Richards to testify a second time. During Richards' second testimony, she did not invoke her Fifth Amendment right against incrimination. Instead, Richards recanted her previous police report and testified that her previous report was false. Richards testified that she filed the false report because she was mad at Bennett. Richards stated that she had a friend inflict the bruises on her. Richards explained that she had her friend punch her so that her story seemed more believable. To explain the bruising, Richards said that she had an iron deficiency which caused her to bruise easily.
Bennett did not present any evidence under his defense and was found guilty of one count of domestic battery. The trial court dismissed the remaining domestic battery count and sentenced Bennett to 12 months' probation with an underlying sentence of 5 months in jail. Was Bennett's statutory or constitutional right to a speedy trial violated when his trial commenced 174 days after arraignment but did not end until almost 4 months later?
Bennett first argues that both his statutory and constitutional rights to a speedy trial were violated. Appellate courts exercise unlimited review over a trial court's determination regarding a defendant's statutory right to a speedy trial. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009). Similarly, whether Bennett's constitutional right to a speedy trial was violated is a question of law, which is reviewed de novo. State v. Rivera, 277 Kan. 109, 113, 83 P.3d 169 (2004).
Statutory Speedy Trial
The time limitation applicable to a defendant's statutory speedy trial right depends on whether or not that defendant is in custody. Because Bennett was held to answer on an appearance bond, K.S.A. 22–3402(2) applies:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).”
In this case, Bennett expressly concedes that he was brought to trial within 180 days after arraignment. Bennett was arraigned on January 19, 2011, which started his speedy trial clock. Then, Bennett was brought to trial 174 days later, which fell within the 180–day time limitation under K.S.A. 22–3402(2). Because Bennett was brought to trial within 180 days after arraignment, the State complied with the technical requirements of K.S.A. 22–3402(2).
Nevertheless, Bennett maintains that his statutory speedy trial right was violated because the recesses which were granted allowed the State to avoid the time limits of K.S.A. 22–3402. In other words, Bennett argues that the time it took to complete the trial should have been tacked to the 174 days that accrued before the trial's commencement.
In responding to Bennett's argument, the State relies on State v. Brown, 22 Kan.App.2d 560, 920 P.2d 460 (1996). In Brown, the defendant's trial was conducted on 3 separate days. Although the defendant was brought to trial within 180 days of arraignment, approximately 3 months passed between the first and second days of trial, and approximately 1 month passed between the second and third days of trial. If the time period it took to complete the trial was added to the total days before the trial's commencement, then the total number of days would have been greater than the 180–day statutory time period of K.S.A. 22–3402(2).
The defendant in Brown, raised an argument similar to Bennett's argument here, i.e., that even though he was brought to trial within 180 days, his statutory speedy trial right was violated because his trial took too long to complete. Rejecting the defendant's argument, the Brown court stated the following:
“It is clear that his trial was not completed within 180 days. However, K.S.A. 22–3402 requires only that a defendant be brought to trial within 180 days of his or her arraignment; it does not require that the trial be concluded within that time frame. We are aware of no authority, statutory or otherwise, nor does defendant supply us with any, that requires a trial to be started and completed within 180 days or within any specific time frame.” (Emphasis added.) 22 Kan.App.2d at 562–63, 920 P.2d 460.
The Brown court's reasoning is sound. K.S.A. 22–3402(2) requires that a defendant only be brought to trial within 180 days of his or her arraignment. As mentioned earlier, Bennett was brought to trial 174 days after arraignment, which falls within the 180–day requirement of K.S.A. 22–3402(2). While over 3 months passed between Bennett's first and second days of trial, the State complied with the requirements of K.S.A. 22–3402(2) by bringing Bennett to trial within 180 days of arraignment. Consequently, the Brown court's decision offers a strong argument that Bennett's statutory speedy trial right was not violated.
Nevertheless, Bennett's primary argument seems to be that his statutory speedy trial right was violated because the multiple recesses which were granted were used as a subterfuge to avoid the requirements under K.S.A. 22–3402. To support his argument, Bennett compares his situation to two Supreme Court cases, which have noted that a defendant's statutory speedy trial right may be violated when the State tries to manipulate the speedy trial statute. See State v. Cuezze, 225 Kan. 274, 278–79, 589 P.2d 626 (1979) (defendant's statutory speedy trial right violated where State dismissed criminal action and then refiled identical charges against same defendant to avoid time limitations of K.S.A. 22–3402); State v. Goss, 245 Kan. 189, 192, 777 P.2d 781 (1989) (State's dismissal and refiling of action when statutory period is about to expire is “suspect and a showing of necessity must be made,” but tacking of time is permitted “only under exceptional circumstances where it is obvious that a dismissal and refiling was clearly a subterfuge engaged in by the State to avoid dismissal under the speedy trial statute.”).
Bennett argues that the time between the first recess and completion of trial should be tacked onto the 174 days before the trial commenced because “the primary reason for the delay in the trial was so that the State could procure immunity for alleged victim.”
Originally, Bennett's first day of trial was scheduled for May 17, 2011. But on May 17, 2011, Bennett's trial was continued at the request of the State so that the victim could be appointed counsel because she had stated that she lied to police when she gave her statement. After another continuance, Bennett's trial began on July 12, 2011. That day, Richards invoked her Fifth Amendment right against self-incrimination. Because Richards invoked her Fifth Amendment right, the State asked the court for a recess so that it could get a “use immunity” for Richards' testimony.” The State declared that it could have the use immunity prepared by 8 a.m. the next morning and that it would be ready to continue the trial then. But because of scheduling conflicts, the trial could not be continued the following day and, to accommodate all of the parties' schedules, the trial was recessed until August 23, 2011.
On August 23, 2011, both Bennett and Richards failed to appear at trial. The trial court recessed the case until October 18, 2011. On October 18, 2011, however, the trial judge who heard the first day of trial was unavailable. The State moved for a recess so that the same trial judge who heard the first day of trial could hear the remainder of the trial. The trial court recessed the case over Bennett's objection to November 1, 2011.
Although the facts show that there was a considerable amount of time between Bennett's first and second days of trial, Bennett's statutory speedy trial argument fails because there is no indication that the State's actions constituted a subterfuge to avoid dismissal under K.S.A. 22–3402. Indeed, the underlying facts here do not present “exceptional circumstances where it is obvious that [the State's actions] were a subterfuge ... to avoid dismissal under the speedy trial statute.” Goss, 245 Kan. at 192, 777 P.2d 781. Bennett is correct that the State could have had a “use immunity” ready on the date of Richards' scheduled testimony as it knew that she was likely going to invoke her Fifth Amendment right against self-incrimination. Even so, there was no way to know for sure whether Richards was going to invoke her right until she was on the stand. After Richards actually invoked her right, the State offered to have the use immunity prepared by the next day, and the State was ready to continue the trial then. Based on the State's actions and a lack of evidence to the contrary, the State's failure to prepare a use immunity in advance was not an attempt to manipulate K.S.A. 22–3402 and avoid dismissal of Bennett's charges.
As a result, Bennett's statutory right to a speedy trial argument fails.
Constitutional Speedy Trial
Bennett next argues that his constitutional right to a speedy trial was violated. The Sixth Amendment to the United States Constitution and § 10 of the Bill of Rights of the Kansas Constitution guarantee every defendant the right to a speedy trial. The constitutional protection of a speedy trial attaches when the criminal prosecution begins, usually either by an indictment, an information, or an arrest, whichever occurs first. State v. Rivera, 277 Kan. 109, 112, 83 P.3d 169 (2004). To evaluate whether a defendant's constitutional right to a speedy trial has been violated, Kansas courts apply the four factor test set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four Barker factors read as follows: (1) length of delay, (2) reason for the delay, (3) defendant's assertion of his or her right, and (4) prejudice to the defendant. None of these four factors alone is sufficient for finding a violation. Instead, this court must consider them together along with any other relevant circumstances. Rivera, 277 Kan. at 113, 83 P.3d 169.
1. Length of the Delay
Bennett's constitutional right to a speedy trial was not violated because the delay was not presumptively prejudicial. When analyzing the length of delay for speedy trial purposes, “ ‘[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiring into the other factors that go into the balance.’ “ 277 Kan. at 113, 83 P.3d 169 (quoting Barker, 407 U.S. at 530). With regard to this factor, our Supreme Court has resisted setting rigid rules for what length of time is presumptively prejudicial. Instead, each delay is examined in the context of the facts in that particular case. See State v. Weaver, 276 Kan. 504, 78 P.3d 397 (2003) (“ ‘[The delay in each case is analyzed according to its particular circumstances.’ [Citation omitted.]”). Consequently, the “tolerable delay for an ordinary crime is less than for a complex one.” 276 Kan. at 511, 78 P.3d 397.
In Goss, our Supreme Court declared that “[t]he length of delay herein—a little over a year between arrest and trial—is not clearly presumptively prejudicial as enunciated by Barker v. Wingo, and hence there is no necessity for inquiry into the other factors that go into the balancing test.” 245 Kan. at 193, 777 P.2d 781. Because the length of Bennett's delay was less than a year and our Supreme Court has held that a delay of a little over a year “is not clearly presumptively prejudicial,” the duration of time in this case is not presumptively prejudicial.
It should also be noted that numerous Kansas cases have held that periods of time longer than 365 days did not violate a defendant's speedy trial right. See, e.g., State v. Calderon, 233 Kan. 87, 94–95, 661 P.2d 781 (1983) (13–month delay did not violate defendant's speedy trial right); State v. Wilson, 227 Kan. 619, 622, 625, 608 P.2d 1344 (1980) (3–year delay did not violate defendant's speedy trial right); State v. Fink, 217 Kan. 671, 678, 680, 538 P.2d 1390 (1975) (14–month delay did not violate defendant's speedy trial right); State v. Hunt, 8 Kan.App.2d 162, 167–68, 651 P.2d 967 (1982) (1–year delay did not violate defendant's speedy trial right); State v. Dailey, No. 102,957, 2011 WL 5833288, at *10 (Kan.App.2011) (unpublished opinion) (23–month delay did not violate defendant's speedy trial right); contrast State v. Fitch, 249 Kan. 562, 564, 819 P.2d 1225 (1991) (402–day delay presumptively prejudicial); State v. Weaver, 276 Kan. 504, 78 P.3d 397 (2003) (450 days presumptively prejudicial under length of delay factor, but no constitutional speedy trial violation based on other three Barker factors).
Because the length of Bennett's delay is not presumptively prejudicial, we need not address the other factors that go into the balancing test.
Bennett next argues that the State failed to present sufficient evidence to convict him of domestic battery. On the other hand, the State disagrees and argues that there was sufficient evidence to support Bennett's conviction.
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
See also In re B.M.B., 264 Kan. 417, 433, 955 P.2d 1302 (1998) (standard for juvenile offender adjudications); In re Care & Treatment of Ward, 35 Kan.App.2d 356, 370, 131 P.3d 540,rev. denied 282 Kan. 789 (2006) (civil commitment proceeding).
In determining whether there is sufficient evidence to support a conviction, an appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983); see also State v. Naramore, 25 Kan.App.2d 302, 322, 965 P.2d 211,rev. denied 266 Kan. 1114 (1998) (uncontroverted expert testimony that defendant physician's treatment was within reasonable health care protocols insufficient to uphold murder and attempted murder convictions).
Moreover, a verdict may be supported by circumstantial evidence, if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. The evidence need not exclude every other reasonable conclusion or inference. Kuxhausen v. Tillman Partners, 291 Kan. 314, 320, 241 P.3d 75 (2010); State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008) (criminal). “A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deductible therefrom.” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). The circumstances utilized to infer guilt must be proved and cannot be inferred or presumed from other circumstances. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).
Bennett argues that the State failed to present sufficient evidence to convict him of domestic battery because the conviction was based primarily on the victim's police statement, even though she recanted her statement at trial. Specifically, Bennett maintains that “the victim's testimony could not have been more favorable to the defendant, and yet her prior statements upon which the conviction was based were incredible and improbable as to defy belief, especially in light of her sworn in-court testimony.”
Bennett's argument is misplaced. To convict Bennett of domestic battery, the State had to establish that he committed either of the following acts: “(1) Intentionally or recklessly causing bodily harm by a family or household member against a family or household member; or (2) intentionally causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.” K.S.A. 21–3412a(a)(1) through (2). “Family or household member means persons 18 years of age or older who are ... presently residing together or who have resided together in the past.” K.S.A. 21–3412a(c)(l).
When Richards testified at trial, she stated that the report she previously made was false. Although Richards admitted that she had filed the report, she stated that the information in the report was false and that the only reason she filed the report was because she was mad at Bennett. To explain the bruising that was evident from the photographs that Officer Soden took with the report, Richards testified that she had a close friend punch her.
Nevertheless, when looking at all the evidence in the light most favorable to the State, there was sufficient evidence to prove that Bennett and Richards met the familial relationship requirement and that Bennett intentionally caused physical contact with Richards in a rude, insulting, or angry manner.
For instance, the “family or household member” relationship was met because there was evidence that both Bennett and Richards were over 18 years old and were living together when the incident occurred. Moreover, Officer Soden's testimony supports a finding that the State presented sufficient evidence. At trial, Officer Soden testified that Richards told him that after she had come home, Bennett yelled at her and called her names. Officer Soden further testified that Richards stated that Benentt had told her she was worthless and that she needed to get out. Richards stated that Bennett began striking her in the face and at one point he tried to put a rope around her neck. Richards' written statement was also admitted as evidence at trial. Richards' written statement indicated that Bennett yelled and cursed at her, told her to get her “sorry worthless ass out of his house,” punched her in the face, and threatened to kill her. Richards' statement also indicated that Bennett put his hands around her neck and tried to put a rope around her neck.
Finally, the photographs of Richards' injuries also were admitted at trial. Those photographs showed the injuries to Richards' face, neck and throat, which consisted of heavy bruising. When viewed in the light most favorable to the State, this evidence shows that the State presented sufficient evidence for the court to find Bennett guilty of domestic battery.
We note that Bennett's counsel made a hearsay objection when Officer Soden testified. At trial, Bennett's counsel alleged that Officer Soden's testimony was hearsay because it involved Richards' out-of-court statements to police. Bennett's counsel alleged any statement Richards made was hearsay because she planned to invoke her Fifth Amendment right against self-incrimination and therefore was unavailable. While Richards' statements arguably would have been hearsay had she not testified, Richards' statements to police were admissible as prior inconsistent statements. See K.S.A. 60–422(b); State v. Schlicher, 230 Kan. 482, 493, 639 P.2d 467 (1982) (“Where the witness admits having made the contradictory statement, this should not as a matter of law prevent counsel from presenting it in evidence through his own witnesses, provided there is some good reason shown for its admission.”).
As a result, the finder of fact—the trial court—was presented with a credibility issue. The trial court decided that the version of events which Richards gave to police shortly after the incident, coupled with Officer Soden's testimony and the photograph evidence, was more credible than her in-court testimony. We refrain from reweighing the evidence or the credibility of the witnesses. Thus, when viewed in the light most favorable to the State, there was sufficient evidence to convict Bennett of domestic battery.
Affirmed.