Opinion
110,149.
11-14-2014
STATE of Kansas, Appellee, v. Ralph E. COREY, Appellant.
Lydia Krebs and Peter Maharry, of Kansas Appellate Defender Office, for appellant. James T. Ward, assistant county attorney, Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Lydia Krebs and Peter Maharry, of Kansas Appellate Defender Office, for appellant.
James T. Ward, assistant county attorney, Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
MALONE, C.J.
A jury convicted Ralph E. Corey of aggravated kidnapping, attempted rape, criminal threat, and two counts of aggravated sexual battery. In his direct appeal, Corey argues: (1) the district court erred by denying his motion for a mistrial; (2) the district court violated his right to be present at all critical stages of his trial; (3) the district court committed reversible error while instructing the jury; (4) the prosecutor committed reversible misconduct by misstating the law and facts during closing argument; (5) cumulative trial errors require reversal of Corey's convictions; and (6) the district court violated Corey's constitutional rights when it sentenced him based in part on his criminal history without first requiring the State to allege his criminal history in the complaint and prove it beyond a reasonable doubt to the jury.
Corey is correct that errors were committed at his trial. The record is silent as to whether Corey was present during the discussion of a jury question and the readback of testimony and there were ex parte communications between the judge and the jury; thus, the district court violated Corey's statutory and constitutional rights to be present at all critical stages of his trial. The district court also erred by instructing the jury about the costs associated with a mistrial. But based upon our careful review of the extensive record in this case, we conclude the errors, when viewed individually and cumulatively, did not affect the outcome of Corey's trial. Thus, we affirm the district court's judgment.
Factual and Procedural Background
Events of February 19, 2000
We will review the facts and procedural history of the case in detail. On February 19, 2000, 16–year–old L.H. and her 15–year–old friend, Tammy Smith, both worked at the Walmart in Ottawa, Kansas. The two girls had planned to go on a double date that evening when L.H. finished her shift at 8 p.m. Smith drove to Walmart to meet L.H ., and by the time she arrived at the employee parking lot, it was cold and dark outside.
As Smith waited in the employee parking lot, she saw a man coming toward her car. Smith became spooked by the man's presence, and, as a result, she drove her car to the main Walmart parking lot. Smith met the two boys she and L.H. had planned to date that evening. While the three waited for L.H., Smith saw a car that looked like L .H.'s car leave the parking lot, driven by a white male with dark hair and facial hair. Smith and the two boys waited for approximately 45 minutes, but L.H. did not arrive, so Smith and the boys continued with their evening.
Meanwhile, at 8 p.m., L.H. finished work and walked out to the employee parking lot where she had parked her car. She later testified that the lights in the employee lot were broken and it was dark. L.H. unlocked her car, got in, and started the car. She fastened her seatbelt, and, as she was about to put the car into reverse, she saw movement in her rear-view mirror. Before L.H. was able to pull away, a man ran up to her driver's-side window and hit it with his open hand. The man opened the car door and punched L.H. in the face, hitting her multiple times and forcing his way into the car.
L.H. caught glimpses of her attacker; she later described him as a white male with dark hair, a moustache, approximately 5 feet 8 inches tall, with a medium build. The man pushed L.H. into the backseat and put a hat with eyeholes cut into it—a homemade ski mask of sorts—over her head, obscuring her vision. L.H. fought and cried, but the man told her to lie down and shut up. He backed L.H.'s car out of the parking space and drove off. A few seconds after the car began moving, L.H. adjusted the hat so that she could see out of the eyeholes a little bit. When she asked the man where he was taking her and why, he told her to shut up or he would kill her.
At this point, L.H. was lying in the car's backseat but could see out the window enough to see that the man drove out of the Walmart parking lot to a nearby Orscheln's parking lot, where he parked the car and got into the backseat. He lifted up L.H.'s sweater, shirt and bra; L.H. struggled, but he touched her breasts and told her to shut up. The man unbuttoned L.H.'s pants and tried to pull them down, but L.H. resisted by bending and squeezing her legs together. The man pulled down his own pants, “dry hump[ed]” L.H., with his penis touching her stomach, and asked if she wanted to fuck him, to which she responded no. The man asked L.H. how old she was and when she said that she was 16 years old, he seemed shocked and stopped what he was doing. He told L.H. that he was going to take her back. When she thanked him, he said he would not hurt her if she did as he said, after which he touched her breasts again and masturbated.
The man then climbed back into the driver's seat and drove to another parking lot. He reclined the front seat all the way back, turned around in the driver's seat, lifted up L.H.'s shirt and bra and again touched her breasts while he masturbated. Finally, the man stopped and told L.H. that he knew who she was and where she worked and if she told anyone or reported the events to the police, he would come back and hurt her. He told her to count to 100 before sitting up, then he got out of the car, and L.H. heard him run off.
L.H. counted backwards from 100 to 50 and then took off the hat. When she looked and saw that the man was no longer around, L.H. locked the car doors and remained in the backseat, crying, for a minute or so. She then got into the driver's seat and called her mother, Bobbie Hawkins, and drove to the Franklin County Sheriff's Department. Hawkins and L.H.'s stepfather, Shawn Chambers, met her there, as did some officers from the Ottawa Police Department.
Law enforcement investigation
L.H. met with Deputy Sheriff Jeffery Norling. Norling later testified that L.H. was upset, disheveled, and shaken, and that her face was swollen as if she had been struck. L.H. told Norling about the attack and described her attacker. L.H. said the man appeared to be in his late 20's to 30's and had dark curly hair, a moustache, dark eyes, a light complexion, and smooth skin. She said the man's voice was “very strong, very gruff and that he sounded like he was from the Midwest. She also said that the man smelled like alcohol and that he was wearing a black shirt or winter coat and jeans. L.H. also told him that she did not see any tattoos or scars on her attacker. Norling examined L.H.'s clothing and found hair that he believed might be pubic hair, which he collected and turned over to the Ottawa Police Department. L.H. also gave Norling the hat used in the attack.
Norling turned the hat over to Detective Bruce Hanson of the Ottawa Police Department. Hanson, L.H., and Hawkins then went to the Ottawa Police Department, where Hanson interviewed L.H., who again related the story of her attack. Because L.H. told Hanson that her attacker had skin-to-skin contact with her stomach, Hanson swabbed L.H.'s stomach to collect any DNA evidence; he sent the swabs to the Kansas Bureau of Investigation (KBI). Hanson also collected L.H.'s clothes and boots and impounded her car. Before she went home that night, L.H. went through her car with Hanson; she told him that a pair of work gloves found behind the driver's seat were not hers and did not belong in the car. Hanson collected the gloves and sent them to the KBI for analysis.
The following morning, Hawkins called Smith and asked if she knew what had happened to L.H. the night before. Smith told Hawkins of her plans with L.H., but said that L.H. had not shown up for the date. When Hawkins told Smith that a man had attacked L.H., Smith told Hawkins that a man had approached her car in the parking lot. Hawkins told Smith to talk to the police. Later that day, without talking to L.H. first, Smith went to the police station and spoke with Hanson.
According to Hanson's later testimony, Smith told him that while she was parked in the Walmart employee parking lot the night before, she saw a man walking straight toward her car with a “stern” look on his face. When Smith started her car, the man quickly turned and jogged over toward some shopping carts, which he began pushing together; at that point, Smith drove into the regular parking lot. She told Hanson that the man was wearing black work gloves, a black ski hat, and a black jacket or heavy coat, and had dark hair and a moustache. She described him as a white male, mid-to-late 30's, and told Hanson that he was about 12 feet from her car when he turned and jogged away.
Hanson asked both L.H. and Smith separately to meet with a composite sketch artist in Lawrence, Kansas. On February 21, 2000, Hanson drove L.H. and Hawkins to Lawrence; Smith drove herself separately. The girls met separately with Detective Michael Riner of the University of Kansas Police Department, who created composite drawings based upon their descriptions of the man. Both Smith and L .H. later testified that the composite sketches accurately reflected their memories of the man. Hanson took the composite sketches to make fliers and to aid in further investigation.
Hanson and Detective Rick Geist of the Ottawa Police Department processed L.H.'s car for evidence; Hanson took photographs and Geist processed for fingerprints, but they did not process the car for seminal fluid. Hanson later testified that to the best of his knowledge, in 2000, the Ottawa Police Department did not possess an alternative light source to use to search for bodily fluid stains. He called the KB1 laboratory to assist, but the KBI was unable to help; Hanson testified that he did not recall the KBI giving a reason and that he assumed it was too busy to assist. Geist did, however, discover some fingerprints and a partial palm print on the inside of the rear window of the car, which he submitted to the KBI for analysis.
Mary Koch, a forensic scientist with the KBI, examined the evidence from the case. Koch found no seminal fluid on the submitted clothing; she also preserved cuttings from the hat and the linings of both gloves to be used in DNA analysis, along with the swabs from L.H.'s stomach. Sindey Schueler, another forensic scientist with the KBI, conducted DNA analysis. Schueler obtained a partial DNA profile from the hat and from the left glove. Schueler also obtained a full DNA profile from the right glove.
Cold case
Geist followed up on approximately 20 leads generated by circulating the composite sketches. None of the leads solved the case, and two suspects were cleared through DNA evidence. Hanson later testified that when they had not found L.H.'s attacker by May 2000, the investigation slowed down.
In 2002, Schueler used a second, different DNA kit and determined that the DNA profile from the right glove and the partial DNA profile from the left glove and the hat were consistent with being from the same individual. Schueler then uploaded the profile into CODIS, a national DNA database.
In January 2011, the KBI notified Geist that the DNA profile developed in L.H.'s case had been matched in CODIS to Corey, who was incarcerated in a federal correctional facility in Arizona. Geist went to Arizona, obtained a sample of Corey's DNA, and spoke with Corey. Geist learned that in 2000 Corey had worked as a truck driver, but Corey said he never had been to Kansas; he denied any involvement in the attack on L.H.
After visiting Corey, Geist went to see L.H., who described the attack once more. Geist also talked to Smith again, who told Geist that the man in the parking lot on the night in 2000 came right up to her car window. Lance Antle, a forensic biologist with the KBI, compared Corey's known profile to the samples from the gloves and hat and found them to be a match. Antle concluded that the frequency of a match in the Caucasian population of the partial DNA profile obtained from the left glove was 1 in 7 billion, from the right glove was 1 in 62 trillion, and from the hat was I in 12 trillion.
On February 18, 2011, the State charged Corey with one count of aggravated kidnapping, two counts of aggravated sexual battery, and one count of criminal threat. In June 2011, Corey finished serving his federal sentence in Arizona and was transported to Kansas. The district court appointed counsel for Corey and, at the preliminary hearing, allowed the State to amend the complaint to include a count of attempted rape. The district court bound Corey over for trial on all charges.
Corey's first jury trial occurred in June 2012, and the jury found Corey guilty on all counts. After the trial, however, the court reporter informed the judge that she believed the jury had used a cell phone to conduct outside research during deliberations. The judge notified counsel, and the jury foreman confirmed that the jury had conducted independent research. Corey subsequently filed a motion for new trial; the State did not oppose the motion, and the district court ordered a new trial due to juror misconduct.
Second trial
Corey's second trial began on October 16, 2012, and lasted 5 days. Smith testified for the State. When recounting the events of February 19, 2000, Smith testified that while she was waiting for L.H., a man came up to her car, rushed to the driver's-side window, and attempted to grab the door. She testified that when she first saw the man, he was “[r]ight behind [her] car,” close enough to touch it. Smith identified Corey as the man she saw in the parking lot that night. On cross-examination, Smith admitted she might have told the police in 2000 that the closest the man got to her car was 12 feet away.
L.H. then testified about the details of her attack and her interactions with law enforcement. Unlike Smith, L.H. did not positively identify Corey as her attacker because she only had caught glimpses of her attacker on the night in question. L.H. admitted that she had given conflicting testimony as to whether her attacker wore short- or long-sleeves and whether she could see his arms. She also admitted that she told law enforcement at the time of the attack that she had not seen any tattoos or scars on her attacker.
Hawkins and Chambers both testified about receiving the phone call from L.H. after she was attacked. Norling, Hanson, and Riner testified about their involvement in the case, and the composite sketches were admitted into evidence. The State also admitted into evidence a photograph of Corey taken in 2002, about 2 years after the attack on L.H. The composite drawings prepared at the time of the attack are similar to Corey's 2002 photograph.
Geist related his part of the investigation and his subsequent interviews with Corey. He also testified that fuel records obtained from RAKAB Truck Company, for whom Corey worked in 2000, showed that Corey got fuel on February 18, 2000, in Waterloo, Iowa, and on February 21, 2000, in Hewitt, Texas. Geist testified that Waterloo is north of Ottawa and close to I–35, Hewitt is south of Ottawa and close to I–35, and Ottawa is close to I–35. Although Geist conceded on cross-examination that there was no indication that Corey purchased fuel in Kansas, he testified that in 2000, it was not uncommon for truck drivers to stop and rest in the area where L.H.'s attacker stopped her car. Roy Baker of the Franklin County Appraiser's Office presented the jury with a map he had prepared to show I–35 in relation to Waterloo, Ottawa, and Hewitt.
Koch and Schueler testified about their part in the KBI's DNA analysis. On cross-examination, Schueler admitted that her administrative documentation at the KBI was inadequate at times and that there had been a KBI investigation, unrelated to Corey's case, in which she admitted to writing an incorrect date on a site visit. She eventually resigned rather than accept the demotion recommended as a result of the investigation. Kelly Woodward–Ohlstein, another KBI forensic scientist, testified about the fingerprint evidence analyzed in L.H.'s case and stated that both Corey and L.H. had been excluded from being the creator of the prints found in L.H.'s car and submitted to the KBI.
Dana Soderholm from the biology section of the KBI testified for the State. In July 2012, Soderholm had assisted with DNA analysis of the stomach swabs from L.H.'s investigation, a technique that was not available to the KBI until 2008. She testified that one of the swabs produced a partial DNA haplotype consistent with Corey's; thus, Corey could not be excluded as a possible contributor to the biological material on the swab. She further testified that “the probability of selecting an unrelated male at random from the general population with the partial male DNA haplotype obtained from [the swab] is approximately 1 in 9 individuals.” Soderholm's report was admitted into evidence.
Finally, the State called Antle, who testified about the match when he compared Corey's known DNA profile to the samples on the gloves and the hat. As stated above, he concluded that the frequency of a match in the Caucasian population of the partial DNA profile obtained from the left glove was 1 in 7 billion, from the right glove was 1 in 62 trillion, and from the hat was 1 in 12 trillion. On cross-examination, Antle acknowledged that the DNA could have been on the hat and gloves for years. After Antle's testimony, the State rested.
For his first witness, Corey called Dr. Dean Stetler, Associate Professor in the Department of Molecular Biosciences and former director of the genetics program at the University of Kansas. Stetler explained that the presence of Corey's DNA on the clothing did not necessarily prove Corey's presence at the time of the attack; it was possible that Corey had contact with the items earlier. Moreover, Stetler testified that since the cutting examined for DNA was taken from the mouth area of the homemade ski mask, it was possible that if the attacker wore the item as a beanie-style hat, he would not have left DNA on the mouth area of the hat. Stetler also testified that an apparent pubic hair matching Corey's DNA would have been much stronger evidence for Corey's presence at the attack and that such testing was available at the time. Finally, Stetler challenged the accuracy of the results of testing the stomach swabs, testifying that in order for the KBI to conclude Corey was part of the portion of the population that matched the DNA on the stomach swabs, the KBI had to ignore part of Corey's DNA profile.
Next, Amanda Corey, Corey's adult daughter, testified that both she and her father grew up in Rhode Island and that he had tattoos on each forearm and bicep since before she was born. Amanda identified two old photographs taken when she was a child that showed Corey with tattoos on his forearms. Amanda also testified that Corey had a “very, very strong East Coast accent.”
Finally, Corey testified on his own behalf and denied assaulting L.H. Corey readily admitted that he had worked for RAKAB as a truck driver making runs for a meat packing plant in Waterloo. Corey also testified that truck drivers using refrigerated trailers often used gloves and, during the winter, he would have worn a stocking cap. Corey estimated that over the 20 years he was a trucker he used 50 to 75 pairs of gloves and that gloves frequently were left behind or transferred from driver to driver. Regarding a run from Waterloo to Texas, Corey testified that a typical route would be Waterloo to St. Louis, then to Oklahoma City, then to Dallas and Fort Worth, taking I–44, not I–70 to I–35. After Corey's testimony, the defense rested.
After brief rebuttal testimony presented by the State, the district court instructed the jury and, after closing arguments, the jury began deliberating. While the jury was deliberating, the bailiff informed the judge that while she was in the jury room during a break from deliberations, she discovered that one of the jurors had informed some other jurors that “this is a retrial.” Based on this information, Corey moved for a mistrial, which the district court denied. The judge instructed the jury not to consider any prior proceedings, and it resumed deliberations. The jury found Corey guilty as charged.
On March 12, 2013, the district court sentenced Corey to 272 months' imprisonment for the aggravated kidnapping, 59 months' imprisonment for the attempted rape, 32 months' imprisonment for each conviction of aggravated sexual battery, and 6 months' imprisonment for the criminal threat, with all sentences running consecutively, for a controlling sentence of 401 months' imprisonment. The district court also ordered lifetime offender registration. Corey timely appealed the district court's judgment.
Motion for Mistrial
Corey first asserts that the district court erred in denying his motion for mistrial. During jury deliberations on a Friday afternoon, the bailiff informed the judge that while she was in the jury room during a break, she learned that one of the jurors had informed some other jurors that “this is a retrial.” The district court notified the parties about the situation. The parties agreed to recess for the weekend and discuss the matter again the following Monday, at which point Corey requested a mistrial. In the alternative, Corey asked the district court to instruct the jury that it should not consider any prior proceedings when determining whether the State had met its burden of proof.
The district court noted that according to the bailiff's report, the juror's only comment was that this was a retrial, not that Corey previously had been convicted. The district court found that there had not been a showing of prejudice as a result of the juror's comment. Ultimately, the district court denied the motion for mistrial and instead instructed the jury that it was “not to consider any prior proceedings for purposes of determining whether the State has met its burden of proof in this case.”
Corey contends that the denial of his motion for mistrial requires reversal because it deprived him of his right to an impartial jury and to due process of law under the Sixth and Fourteenth Amendments to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. The State responds that there was no fundamental failure in the proceedings and that any prejudicial conduct that did occur did not make it impossible to continue the trial without injustice to either Corey or the State. The State also contends that the district court's curative jury instruction combined with the overwhelming evidence against Corey renders any error harmless.
“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.” State v. Waller, 299 Kan. 707, Syl. ¶ 3, 328 P.3d 1111 (2014).
On appeal, the district court's decision denying a motion for mistrial is reviewed under an abuse of discretion standard. State v. Ward, 292 Kan. 541, Syl. ¶ 2, 256 P.3d 801 (2011), cert. denied ––– U.S.––––, 132 S.Ct. 1594 (2012). Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. 292 Kan. 541, Syl. ¶ 3.
Fundamental failure
First, we must determine if there was some fundamental error in the proceedings. Corey does not explicitly address the “fundamental failure” step in the analysis of a motion for mistrial, but he argues that the juror's disclosure was error that deprived him of a fair trial. The State argues that the district court's “determination that there was no fundamental failure of the proceeding was correct and not an abuse of discretion.” However, the district court did not make an explicit finding as to whether there was a fundamental failure in the proceedings; rather, in denying the motion for mistrial, the district court found that there had been no showing that Corey's rights were prejudiced by the jurors' knowledge of his previous trial.
“Analyzing whether a fundamental failure occurred varies with the alleged deficiency's nature, such as whether the allegation is based on a witness' actions, a bystander's actions, prosecutorial misconduct, or an evidentiary error. [Citation omitted.]” State v. Harris, 297 Kan. 1076, 1087, 306 P.3d 282 (2013). Corey's motion for mistrial was based upon his allegation of juror misconduct. “Ordinarily, jury misconduct occurs when, during deliberations, a jury considers matters completely outside the evidence and issues in the case.” State v. Leaper, 291 Kan. 89, Syl. ¶ 4, 238 P.3d 266 (2010). Here, a juror commented to other jurors during deliberations that the case was a retrial—a matter completely outside the evidence and issues in the second trial. We conclude that this was misconduct which resulted in a fundamental failure in the proceedings.
Curative instruction
Next, we must assess whether it was possible for the district court to continue with the trial without an injustice to either party. In making this determination, we must consider whether the district court properly removed or mitigated the prejudicial conduct's damaging effect by an admonition, jury instruction, or other action. Waller, 299 Kan. 707, Syl. ¶ 3.
The State correctly points out that the district court gave a curative instruction, as Corey requested if it denied his motion for mistrial. Specifically, the district court gave a modified instruction based on PIK Crim.3d 51.04 at Corey's request:
“In your fact findings you should consider and weigh everything admitted into evidence. This includes testimony of witnesses, admissions or stipulations of the parties, and any admitted exhibits. You must disregard any testimony or exhibit which I did not admit into evidence. The jury is not to consider any prior proceedings for purposes of determining whether the State has met its burden of proof in this case. ” (Emphasis added.)
On appeal, Corey argues that the jury instruction was insufficient to cure the prejudicial misconduct. In support, he cites a Kansas case and two out-of-state cases in which appellate courts granted defendants new trials as a result of jurors becoming aware during deliberations that a former jury had found the defendant guilty. See Winiarz v. State, 107 Nev. 812, 820, 820 P.2d 1317 (1991) ; Huiv. State, 103 Nev. 321, 325, 738 P.2d 892 (1987) ; The State v. Burton, 65 Kan. 704, 707–10, 70 P. 640 (1902).
As the State points out, however, these cases address the revelation of a previous conviction, not a previous trial, which is an important distinction. Here, there is no evidence to show that any of the jurors knew about or discussed Corey's previous conviction. The only information available to the district court was the bailiff's comment that one of the jurors had informed some other jurors that “this is a retrial.” The parties and the district court discussed the possibility of questioning the jurors further, but they agreed not to do so. Specifically, defense counsel stated that questioning the jury might result in “poisoning the well further.”
An appellate court presumes that juries follow the instructions given by the district court. See State v. Kettier, 299 Kan. 448, 478, 325 P.3d 1075 (2014). Considering that the juror's conversation to other jurors was limited to the fact that this was a retrial, and there was no reported discussion of a prior conviction, we agree with the district court that the curative instruction mitigated any harm caused by the jury misconduct. We conclude the district court did not abuse its discretion in denying Corey's motion for mistrial.
Corey's Right to be Present at All Critical Stages of His Trial
Next, Corey asserts that the district court violated his statutory and constitutional rights to be present at all critical stages of his trial. Corey claims that his rights were violated in two ways: (1) the record is silent as to his presence during the discussion of a jury question and the readback of testimony and (2) the district judge engaged in off-the-record ex parte conversations with the jury. Regarding the first claim, the State acknowledges that the trial transcripts are silent regarding Corey's presence during the discussion of a jury question and the readback of testimony, but the State argues that the trial transcripts are inaccurate. As to the second claim, the State denies that the district judge had ex parte conversations with the jury that amount to critical stages of the trial.
Corey acknowledges that he failed to raise this issue to the district court, but he contends that he may raise it for the first time on appeal because both this court and our Supreme Court previously have addressed identical claims for the first time on appeal. Generally, constitutional grounds for reversal, such as those raised here, when asserted for the first time on appeal, are not properly before the appellate court for review. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). Corey is correct, however, in stating that Kansas appellate courts previously have considered for the first time on appeal claims implicating the defendant's statutory and constitutional rights to be present at every critical stage of trial. See, e.g., State v. Bell, 266 Kan. 896, 918–20, 975 P.2d 239, cert. denied 528 U.S. 905 (1999) ; State v. Womelsdorf, 47 Kan.App.2d 307, 320–21, 274 P.3d 662 (2012), rev. denied 297 Kan. –––– (2013). We will consider Corey's claim for the first time on appeal because consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014).
“Appellate arguments on a defendant's right to be present at every critical stage of his or her criminal trial raise an issue of law over which this court exercises unlimited review. [Citation omitted.]” State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014). We will address each of Corey's claims in turn.
The jury question and subsequent readback of testimony
Corey first argues that the appellate record is silent as to whether he was present when the district judge discussed with counsel how to respond to a jury question and when the court reporter read back testimony to the jury. Specifically, while deliberating, the jury sent a question to the district court and asked, “On the 3 belly swabs, does the Y[-]STR DNA test prove that the defendant has the same DNA as 1 in 9 male individuals in the world? [O]r does that mean 1 in 9 within the defendant[']s lineage?” The district court discussed how to respond to this question with counsel and, ultimately, the parties agreed that the best way to answer the question would be to have the court reporter read back to the jury Soderholm's testimony.
The court reporter then read the testimony to the jury in the courtroom. The trial transcripts reflect that counsel was present for the discussion, decision, and readback, but they do not contain any notation of Corey's presence. As a result, Corey asserts that the district court violated his right to be present at all critical stages of his trial.
The State acknowledges that the trial transcripts are silent regarding Corey's presence during the discussion of the jury question and the readback of the testimony, but the State argues that the trial transcripts are “inaccurate.” Some additional information is necessary to fully understand the State's argument. Corey filed his notice of appeal on March 13, 2013. On July 19, 2013, this court granted his motion to docket his appeal out-of-time. Corey filed his appellate brief on March 20, 2014, contending that the record was silent as to his presence at certain points in the trial. The State obtained extensions of time to file the appellee's brief, which resulted in a due date of July 23, 2014.
On July 22, 2014, the Franklin County District Court held a hearing presided over by the district judge who presided over Corey's trials and attended by the county attorneys who prosecuted Corey and who represent the State on appeal; Corey's trial counsel, who was no longer representing him; and the court reporter who transcribed Corey's trial. Corey and his appellate counsel were not present at the hearing. Those present at the hearing agreed that although the trial transcripts were silent about Corey's presence at the discussion of the jury question and the readback of the testimony, Corey, in fact, had been present during those proceedings. A transcript of the July 22, 2014, hearing ultimately was included in the record on appeal. On July 23, 2014, the State filed its brief, in which it argued that the trial transcripts were inaccurate in their failure to reflect Corey's presence during the proceedings in question. Corey filed no reply brief.
We must first settle the record and determine whether the transcript of the July 22, 2014, hearing can be considered by this court on appeal. The fact that neither Corey nor his appellate counsel was present at the July 22, 2014, hearing is problematic. Corey's absence at this hearing is especially ironic as it was a hearing to address whether Corey had been present at certain stages of his trial. Arguably, the July 22, 2014, hearing was another critical stage of the proceedings at which Corey was entitled to be present, since his presence at the hearing was “ ‘essential to a fair and just determination of a substantial issue.’ “ See State v. Martinez, 288 Kan. 443, 449, 204 P.3d 601 (2009).
Moreover, Kansas appellate courts repeatedly have stated the general rule in criminal cases that once a direct appeal is docketed, the district court loses jurisdiction over the case. See, e.g., State v. Fritz, 299 Kan. 153, 155, 321 P.3d 763 (2014) (stating “district court loses jurisdiction over case after direct appeal docketed”); State v. Smith, 278 Kan. 45, 51, 92 P.3d 1096 (2004) (stating district court correctly held it lacked jurisdiction to consider posttrial motions because “[o]nce Smith's appeal was docketed, the district court lost jurisdiction to hear them”); State v. Dedman, 230 Kan. 793, 796, 640 P.2d 1266 (1982) (“The authorities support the position that when an appeal is docketed the trial court's jurisdiction ends....”). Under this general rule, the district court had no authority to hold a hearing after Corey docketed his appeal, much less one at which the district judge himself offered testimony as to Corey's presence during the trial. Thus, in deciding this issue on appeal, we will disregard the transcript of the July 22, 2014, hearing and resolve Corey's claim based only on the original trial transcripts.
Turning to the merits of the claim, Corey asserts that he has both a statutory and constitutional right to be present at all critical stages of his trial. K.S.A. 22–3405(1) requires that a “defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” Our Supreme Court has stated: “[A]ny question from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence unless the defendant is voluntarily absent. [Citation omitted.]” State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013). In addition, this court has explicitly held that “a readback of testimony must be done in the courtroom in the presence of the defendant.” State v. Acree, 22 Kan.App.2d 350, 353, 916 P.2d 61, rev. denied 260 Kan. 995 (1996).
Where the record does not affirmatively reflect the presence of the defendant, this court will presume that the defendant's constitutional right to be present was violated. State v. Herbel, 296 Kan. 1101, 1107–08, 299 P.3d 292 (2013). Thus, because the trial transcripts here do not affirmatively reflect Corey's presence during the discussion of the jury question and the readback of the testimony, we presume that he was absent during these critical stages of his trial in violation of his statutory and constitutional rights.
Our analysis now turns to whether this violation requires reversal of Corey's convictions. Because the violation implicates both statutory and constitutional rights, this court applies the federal constitutional error standard. See Verser, 299 Kan. at 789 (“When violations of both statutory and federal constitutional rights arise from the same acts or omissions, we apply only the more rigorous of the two harmless error standards—the federal constitutional harmless error standard. [Citations omitted.]”). Under this standard, the “ ‘error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.’ [Citation omitted.]” 299 Kan. at 789. There are four factors that help an appellate court evaluate the harmlessness:
“ ‘(1) the overall strength of the prosecution's case; (2) whether an objection was lodged; (3) whether the ex parte communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error.’ [Citation omitted.]” 299 Kan. at 789–90.
Regarding the first factor, we will consider the overall strength of the prosecution's case. L.H. only caught glimpses of her attacker on the night in question, and she was unable to identify Corey at trial. Smith positively identified Corey as the man in the Walmart parking lot on the night of the attack. However, Smith's identification was impeached by some inconsistency between her testimony and her statement to the police. Smith originally told Detective Hanson that the man in the Walmart parking lot was about 12 feet from her car when he turned and jogged away. At trial, Smith testified that the man in the parking lot came up to her car, rushed to the driver's-side window, and attempted to grab the door. Significantly, however, both L.H. and Smith met separately with a composite sketch artist 2 days after the attack, and the sketch artist created composite drawings based on the young women's memories of the man. The composite drawings are similar to a photograph of Corey taken in 2002.
The State established that on February 19, 2000, Corey was on a truck run from Waterloo, Iowa, to Hewitt, Texas. Ottawa, Kansas, is near a direct path between Waterloo and Hewitt. The strongest part of the State's case was the DNA evidence. Soderholm testified that one of the swabs from L.H.'s stomach produced a partial DNA haplotype consistent with Corey's DNA. But because of the partial nature of the profile, she testified that the probability of selecting another male from the general population with the same DNA haplotype was 1 in 9 individuals. Stetler challenged the accuracy of the DNA testing from the stomach swab because of the partial nature of the profile.
The DNA testing on the hat and gloves, which included better profiles, also matched Corey's DNA. Antle testified that the frequency of a match in the Caucasian population of the partial DNA profile obtained from the left glove was 1 in 7 billion, from the right glove was 1 in 62 trillion, and from the hat was 1 in 12 trillion. Corey's only explanation for how his DNA was found on the hat and gloves was that he used many pairs of gloves over the years as a trucker and that gloves frequently were left behind or transferred from driver to driver. However, no one else's DNA was discovered on the hat and gloves left behind in L.H.'s vehicle. Stetler did not substantially challenge the accuracy of the DNA testing on the hat and gloves.
Regarding the second factor, Corey admits that he did not object to the violation of his right to be present during the discussion of the jury question and the readback of the testimony to the jury. Regarding the third factor, although the jury question and readback of Soderholm's testimony were critical stages of the trial, the parties agree that the readback was the best way to answer the jury's question. Corey does not allege on appeal that there was anything improper about the content of the readback. Regarding the final factor, Corey failed to pursue any posttrial remedies to mitigate the constitutional error.
This court previously addressed whether the readback of testimony outside the defendant's presence constituted reversible error in Acree. In that case, the deliberating jury sent a written request to the trial judge for a readback of testimony. The judge met with the defendant and counsel in chambers, where the judge suggested that the court reporter read the testimony in the jury room instead of bringing the jury back into the courtroom. Both attorneys acknowledged on the record that they did not object to this procedure. However, the record did not show whether the judge asked the defendant if he objected or whether defense counsel had conferred with the defendant prior to waiving any objection.
On appeal, this court noted that K.S.A. 22–3420(3) and prior caselaw required that a readback of testimony be performed in the courtroom in the defendant's presence unless the defendant voluntarily waives his or her presence, which cannot be presumed from a silent record. Acree, 22 Kan.App.2d at 353. Thus, this court determined that the district court erred in allowing the court reporter to read back a portion of the evidence in the jury room outside the defendant's presence. 22 Kan.App.2d at 353–54.
Next, this court applied the constitutional harmless error standard in effect at the time, which required that a constitutional error could not be held harmless unless the court could “ ‘declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.’ [Citation omitted.]” 22 Kan.App.2d at 354. This court considered the substance of the testimony that was read back to the jury, noting that it did not contradict or otherwise discredit the defendant's theory of defense. 22 Kan.App.2d at 355. More importantly, this court found that “the record is devoid of any post-trial evidence that the court reporter did not properly read back the testimony or that there was any impropriety during the readback.” 22 Kan.App.2d at 355. Although this court did not condone the manner of the readback, it determined that “only wild speculation would permit us to conclude any prejudice occurred.” 22 Kan.App.2d at 355. Thus, this court held the error harmless beyond a reasonable doubt. 22 Kan.App.2d at 355.
Corey's case is similar to Acree in many respects. In Acree, neither the defendant nor his counsel were present while the court reporter read back testimony in the jury room whereas Corey's attorney was present in the courtroom during the readback of Soderholm's testimony. Corey agrees that the readback of Soderholm's testimony was the best way to answer the jury's question. Significantly, Corey does not allege on appeal that there was anything improper about the content of the readback. Although the record is silent as to Corey's presence during the readback, we know that his attorney was present during the readback, and if there were any problems about the content of the readback or the manner that it was presented to the jury, the attorney could have brought these problems to the district court's attention.
In summary, Corey did not object at trial to the violation of his right to be present during the discussion of the jury question and the readback of the testimony, nor did he pursue any posttrial remedies to mitigate the constitutional error. On appeal, Corey does not allege that there was anything improper about the content of the readback. The prosecution's case against Corey was strong, especially the DNA evidence on the hat and gloves that the attacker left in the car. Under the constitutional harmless error standard, even if Corey was absent during the discussion of the jury question and the readback of the testimony, which we must presume, we are convinced beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record. Thus, we conclude the error was harmless and does not require reversal of Corey's convictions.
The district judge's communication with jurors
Corey also argues that the district court violated his right to be present when the judge engaged in off-the-record conversations with the jury outside Corey's presence. Specifically, Corey refers to communication that happened when the bailiff notified the judge that one of the jurors had informed some other jurors that the case was a retrial. To summarize, the judge's administrative assistant, acting as bailiff, learned while she was in the jury room during a break from deliberations that a juror had informed other jurors that this was a retrial. The bailiff reported the information to the judge, who described his subsequent actions on the record, with Corey and counsel present, as follows:
“So I went back there and uh, when I went back there they were talking again, and I just asked them to stop until I had a chance to talk with counsel. I told them to take a break, not to deliberate any further, just relax for a little bit until I had a chance to talk with you all which they were happy with.
“And uh, I did ask who the foreman was and uh, it appeared that the lady that the rest of them had selected wasn't happy being foreman. Primarily she thought she was going to have to read the verdicts out loud in court. I do not have them do that. I do that. So she was okay with going ahead and being the foreman at that point, but it's Ms. Reed, who is the actual jury foreman. She's the lady on the back row, second one in. Anyway, that's what's going on. So I don't know if counsel have any comments or any thoughts on how to proceed?
“I did not ask any more questions about this comment about a retrial or anything of that nature.”
After the judge asked the parties if they had any suggestions on how to proceed, Corey's counsel asked for time to speak with Corey. The judge replied, “If you want to talk about that, five or ten minutes. I'll tell the jury we're talking about it and relax for another ten minutes.” After the subsequent recess, the judge informed the parties:
“I told the jurors that counsel were in here and discussing the matter. I didn't tell them what I told you all. The juror foreman told that they wanted to know how long they could deliberate. One of them did. It wasn't the juror foreman but the jury foreman butted in and said what she means is can we come back a different day. We're completely exhausted. We want to come back another day if we're too tired to continue today.
“I told them jury deliberations can continue as long as you all want. I don't have a rule cutting you off at a certain time. That if that ends up being the case so be it, but I told them I was still talking to counsel and would be back in a minute and that's when I came back in here.”
Corey contends that these off-the-record, ex parte conversations between the judge and jury violated his rights under K.S.A. 22–3405(1) and the Sixth and Fourteenth Amendments to the United States Constitution. The State responds that these conversations did not amount to critical stages of the trial. Our Supreme Court has held, however, “that ex parte communications between a trial judge and a juror violate a criminal defendant's constitutional right to be present at all critical stages of the trial.” Martinez, 288 Kan. at 450 ; see also Herbel, 296 Kan. at 1106 (noting that the right to be present at every critical stage of a criminal trial “includes the right to be present whenever the court communicates with the jury”); State v. Coyote, 268 Kan. 726, 731, 1 P.3d 836 (2000) (“[A] conference between a trial judge and juror is ... a critical stage and requires the presence of the defendant. [Citations omitted.]”).
Clearly, it was error for the district judge to enter the jury room and talk with the jurors outside the presence of Corey and counsel. We again turn to the harmless error analysis, and because the violation implicates both statutory and constitutional rights, we apply the federal constitutional error standard. See Verser, 299 Kan. at 789.
Regarding the first factor, we already have discussed the overall strength of the prosecution's case against Corey, especially the strength of the DNA evidence. Regarding the second factor, Corey did not object to the ex parte conversations even though the judge summarized the conversations on the record immediately after they occurred. Regarding the third factor, the conversations were not about a critical aspect of the trial. The judge instructed the jury not to deliberate any longer. The judge also clarified the jury foreperson's duties for her and answered the jury's question about how long it could deliberate. There was no discussion of the evidence. Regarding the fourth factor, Corey failed to pursue any posttrial remedies to mitigate the constitutional error.
In State v. Mann, 274 Kan. 670, 56 P.3d 212 (2002), the Kansas Supreme Court addressed whether the defendant was denied his constitutional right to be present during critical stages of his trial when the district judge had multiple ex parte conversations with jurors. During the course of the defendant's trial, two jurors reported to the bailiff that a male spectator in the courtroom “had stared or glared at them frequently” during the trial and had followed them outside during breaks. 274 Kan. at 680–81. The district judge informed both counsel of the complaint, and counsel agreed that the judge should speak with the two complaining jurors without counsel present. While doing so, the judge learned more details about the man who had been glaring at the jurors during the trial and also discovered that the jurors had overheard the man talking on a cell phone about the case. The judge informed the jurors that the man was the defendant's uncle and that defense counsel would tell the man to stop his behavior. The jurors then informed the judge that they would be able to be fair and impartial jurors and decide the case based solely upon the evidence and the law. In addition, the jurors identified two other jurors as the only people with whom the initial jurors had discussed their discomfort with the man's actions. Without notifying counsel, the judge then spoke with the other two jurors, and they both stated that they would remain fair and impartial.
The judge then reported the conversations to counsel and the defendant; the State wanted to continue with the trial, but defense counsel was concerned that the jurors might not be fair and impartial. Moreover, defense counsel pointed out that counsel had only consented to the judge communicating with the two original complaining jurors. The judge offered to allow defense counsel to question the four jurors individually, but “[d]efense counsel declined, expressing concern that further inquiry might worsen the matter.” 274 Kan. at 681.
After conferring with the defendant, defense counsel requested a mistrial, arguing that the fact that the jurors brought this issue to the court's attention showed that they were paying attention to the gallery rather than the evidence. The judge denied the motion, ruling that the jurors had “merely reported something that made them feel uncomfortable,” had indicated that they could remain fair and impartial, and had indicated that the man's behavior would not affect their decision in the case. 274 Kan. at 682. The judge also stated that the jurors' demeanor “indicated that they would judge the case based on the evidence and not on this event.” 274 Kan. at 682.
On review, our Supreme Court concluded that the judge erred in conducting these conversations outside the defendant's presence. 274 Kan. at 682. The court based this conclusion on (1) the fact that it is well-settled that such a conversation is a critical stage of trial at which a criminal defendant has a constitutional right to be present, (2) counsel's consent to the judge speaking with the reporting jurors did not extend to the additional conversation with the two other jurors, and (3) there was no indication in the record that the defendant waived his right to be present at either conversation. 274 Kan. at 682.
The court then moved to its analysis of whether the error was harmless and applied the constitutional harmless error standard. 274 Kan. at 683–84. After considering each of the four factors the Kansas Supreme Court has adopted to evaluate the harmlessness, including the court's determination that the evidence against the defendant was “less than overwhelming,” the court nevertheless concluded: “It can be said beyond a reasonable doubt that this error had little, if any, likelihood of changing the result of trial .” 274 Kan. at 684–86 ; see also State v. Rayton, 268 Kan. 711, 717–20, 1 P.3d 854 (2000) (trial judge's ex parte conversations with jurors, including some off-the-record conversations, found to be harmless beyond a reasonable doubt).
Corey's case is distinguishable from Mann because the trial judge's ex parte conversations with the jury in that case were on the record. Here, the judge's actual conversations with the jurors were not on the record, although the judge summarized the conversations on the record immediately after they occurred. The judge's conversations with jurors in Mann were far more substantive in nature than the judge's conversations with the jurors in Corey's case. Nevertheless, the Supreme Court in Mann found the judge's ex parte conversations with the jurors to be harmless beyond a reasonable doubt.
Corey implicitly argues that this court should not trust the district judge's recitation of his conversations with the jury; he contends that because the conversations were not on the record, “there is simply no way for the State or this Court to know the content of these conversations, let alone their tone or tenor.” Corey essentially argues that a judge's ex parte communication with jurors constitutes structural error which is reversible in every case because there is no way of knowing exactly what took place in the jury room. Corey cites no authority to support this argument. Failure 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 is akin to failing to brief the issue. State v.. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). An issue not briefed by the appellant is deemed waived and abandoned. State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012).
Here, the district judge summarized the ex parte conversations with the jury on the record in Corey's presence immediately after the conversations occurred. Corey lodged no objection to the district court's procedure and filed no posttrial motion challenging the judge's communication with the jurors. In the absence of any evidence to the contrary, we may presume that the judge made an accurate record of the proceedings. Certainly, a district judge should refrain from entering the jury room and talking with a deliberating jury outside the presence of counsel and the defendant. But given the brief nature of the contact between the judge and the jurors and the substance of what was discussed, we are convinced beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record. Thus, we conclude the error was harmless and does not require reversal of Corey's convictions.
Jury Instructions
Next, Corey contends that the district court committed reversible error in the way it instructed the jury. Corey does not challenge any of the written instructions the district court provided to the jury prior to deliberations. However, Corey challenges two other instructions the district court gave to the jury at other parts of the trial. First, immediately after the jury was sworn, the judge gave the jury preliminary instructions. The judge instructed the jurors that they must not attempt to obtain information about the case other than that which they heard and saw in the courtroom. He told them that they were not allowed to communicate with anyone about the case or their service as jurors. The judge acknowledged that these restrictions might affect the jurors' normal activities and explained the reasoning behind the rules. The judge then stated:
“Any juror who violates these instructions I've explained to you jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. As you can imagine, a mistrial is a tremendous expense and inconvenience to the parties, the Court and the taxpayers. ” (Emphasis added.)
Second, Corey complains of an instruction given during the jury deliberations after the district court discovered that a juror had informed other jurors that this was a retrial. The parties and the district court had agreed to allow the jury to recess for the weekend so that the parties could research further how to deal with the juror's comment. Prior to letting the jury go, the district court called the jury into the courtroom and reminded the jurors how important it was that they not be influenced by outside information. When explaining the reasoning behind the rule, the judge commented that the trial was important to both parties and then stated:
“It's also important to the Court, because if there is any of this type of activity, it could result in a mistrial which means we would have to try this thing again. There would be 12 more of you selected and another cost associated with that for a week long jury trial. So it's important—I can't just stress it enough.” (Emphasis added.)
The State responds that the district court gave proper jury instructions to which Corey did not object and that the instructions, when taken in context, were not clearly erroneous.
“ ‘For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).’ [Citation omitted.]” State v. Williams, 299 Kan. 509, 551, 324 P.3d 1078 (2014).
Corey did not object at trial to either of the jury instructions he now complains about on appeal. Where a party fails to object at trial to the giving of an instruction, an appellate court reviews only for clear error; in other words, “ “ ‘the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.’ “ [Citation omitted.]” See State v. Brown, 300 Kan. ––––, ––––, 331 P.3d 781, 792 (2014).
Reviewability
We first must consider the reviewability of the issue from both jurisdiction and preservation viewpoints. Corey acknowledges that he did not object to the instructions when the district court gave them, but he asserts that he may nevertheless raise the issue for the first time on appeal. Our Supreme Court has stated that when a party fails to object or request a jury instruction at trial, appellate courts may consider the issue, but review is limited to determining whether the instruction was clearly erroneous. Brown, 331 P.3d at 792. Thus, this court has jurisdiction to consider Corey's issue on appeal.
As for preservation of the issue through objection, Corey argues that this court should review the second instruction for harmless error, not clear error, because the State expressed “concern” over the instruction at trial. After the district judge instructed the jury and released it for the weekend, the prosecutor expressed concern that the district court's jury instruction may have “turned into an Allen Instruction” because the judge referred to the cost associated with another trial. But after further discussion between the prosecutor and the judge, the prosecutor agreed that the judge had given a proper instruction. The prosecutor stated, “I withdraw my concern, Judge.”
Corey contends that the purpose of requiring an objection before the district court is to give that court the opportunity to correct errors and that the State's expression of concern over the instruction served that purpose well enough that this court should now utilize the standard of review applied when the complaining party objected to the instruction at trial. Corey extends his argument even further and asserts that this court should utilize the federal constitutional error standard to determine the harmlessness of the error “because the district court's instructions encouraged the jury to decide the case based on something other than the evidence before it.”
Corey's argument is misplaced. K.S.A.2013 Supp. 22–3414(3) states in part:
“No party may assign as error the giving or failure to give an instruction ... unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.”
The statutory language contemplates that the party claiming error on appeal must object to the instruction before the jury retires to consider the verdict; it does not simply require that any party object. Also, to the extent that the State objected to the instruction, the State later withdrew its objection on the record. Because Corey failed to object to either of the jury instructions at trial, we must review the instructions for clear error.
Legal propriety
Next, we must determine whether the district court's jury instructions were legally appropriate. Corey contends that these instructions informed the jury that another trial would burden the parties, which both this court and our Supreme Court previously have found improper. To support this contention, Corey cites State v. Salts, 288 Kan. 263, 200 P.3d 464 (2009), and State v. Page, 41 Kan.App.2d 584, 203 P.3d 1277 (2009). In both of these cases, the courts held that telling a jury that “ ‘[a]nother trial would be a burden on both sides' “—also referred to as an Allen instruction—was misleading, inaccurate, and confusing and constituted error. Salts, 288 Kan. at 266 ; Page, 41 Kan.App.2d at 586–87.
Since Salts and Page, Kansas appellate courts consistently have held that using this language is error. See, e.g., State v. Gleason, 299 Kan. 1127, 1179–80, 329 P.3d 1102 (2014) (instruction that included the phrase “ ‘another trial would be a burden on both sides' “ was erroneous); State v. King, 297 Kan. 955, 984–85, 305 P.3d 641 (2013) (instructing jury that a second trial would be a “ ‘heavy burden on both sides' “ was erroneous); State v. Parks, 294 Kan. 785, 801, 280 P.3d 766 (2012) (concluding the language “ “ ‘[a]nother trial would be a burden on both sides' “ “ is error).
The State argues that to find the language used here erroneous would require this court to ignore the context of the instructions. The State points out that these instructions contained no reference to the jury's failure to reach a unanimous verdict. However, the State does not explain how this context makes the language legally appropriate. Under the rationale of Salts, the district court's instructions to the jury that another trial would be a “tremendous expense and inconvenience” and that a mistrial would involve a new jury and the “cost associated with that for a week long jury trial” constituted legal error.
Reversibility
Finally, because the district court erred, this court must determine whether the error requires reversal. As stated above, Corey freely admits that he did not object to the instructions as they were given. When a party fails to so object, “review on appeal is limited to determining whether the instruction was clearly erroneous. [Citations omitted.]” Brown, 331 P.3d at 792. If giving the instruction was error,” ‘ “the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” ‘ [Citation omitted.]” 331 P.3d at 792.
Corey focuses on the instruction the judge gave during the jury's deliberations and argues that the instruction was clear error because of the similarity between the instant case and the circumstances in Page. In Page, prior to the jury beginning deliberations, the district court gave the jury a deadlocked jury instruction over the defendant's objection. That instruction included language indicating that another trial would be a burden to both sides. The jury later indicated that it was deadlocked on one of the charges, after which the district court recessed for the evening. The Page court continued:
“When the jury returned the next day, the jury requested the court read back certain testimony. The jury eventually convicted the defendant of two counts of rape. Given the fact our Supreme Court has held the deadlocked jury instruction misleading and the real possibility the jury in this case was at least influenced by the erroneous language in the jury instruction, this defendant's convictions must be reversed.” 41 Kan.App.2d at 586–87.
Corey points out that the district court in his case knew the jury was having difficulty reaching a verdict. When the judge brought the parties to the courtroom to inform them about one juror telling other jurors that this was a retrial, the judge began by saying, “Basically the jury isn't getting along.” The judge also told the parties that his bailiff believed the jurors were “having difficulties.” But although Corey's jury may have had some difficulties during deliberations, the jury never announced that it was deadlocked as was the situation in Page. Also, the defendant in Page objected to the jury instruction at trial. This court reviewed the instruction in that case for harmless error which placed the burden on the State to prove the error was harmless. Here, we will reverse Corey's convictions based on the instructions only if we find clear error which places the burden on Corey to establish the degree of prejudice necessary for reversal.
The district court erred by instructing the jury about the costs associated with a mistrial. But the instructions were given in the context of reminding the jurors how important it was that they not be influenced by outside information. The instructions contained no reference to the jury's failure to reach a unanimous verdict. Corey did not object to the instructions and he filed no posttrial motion challenging the instructions. The burden is on Corey to establish the degree of prejudice necessary for reversal. Brown, 331 P.3d at 792. Based on the record in its entirety, we are not firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. Thus, we conclude the district court's jury instructions were not clearly erroneous.
Prosecutorial Misconduct
Next, Corey contends that the prosecutor committed misconduct during closing argument by misstating both the law and the facts of the case. Specifically, Corey challenges (1) the prosecutor's statement that the jury could not consider the reason L.H.'s attacker stopped his attempt to rape L.H. and (2) the prosecutor's claim that Corey's DNA was on the swabs taken from L.H.'s stomach. The State replies that the prosecutor did not misstate the law and that the prosecutor's assertion about the DNA evidence was the type of reasonable inference that a prosecutor may draw from the evidence. The State also asserts that if the prosecutor committed any errors, they were harmless.
Our Supreme Court has stated that appellate review of allegations of prosecutorial misconduct
“requires a two-step process. First, an appellate court determines whether there was misconduct, i.e., whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, if misconduct is found, the appellate court determines whether those comments compel reversal, i.e., whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. [Citations omitted .]” State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014).
Alleged misstatement of law
Corey first challenges the following statement made by the prosecutor:
“Ladies and Gentlemen, for the purpose of the attempted rape charge, it doesn't matter why he stopped. From a legal standpoint, the fact is when he tried to unbutton her pants and actually did undo her pants and tried to pull them down and was clearly trying to have sex with her, he has done more than just mere preparation in attempting to rape somebody. He is in the act of trying to rape them and from a legal standpoint it does not matter as to why he stopped.
“For whatever reason, when she told him her age he stopped. It doesn't matter why. It's enough that he did all the things that he did and clearly his intent was obvious based upon all the kissing and fondling, when it was done to the victim, [L.H.]”
Corey asserts that this statement constitutes prosecutorial misconduct because it misstates the law. K.S.A. 21–3301(a) (Furse), in effect at the time of the crimes, defined “attempt” as “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” Corey argues that the plain language of the statute means that a person is guilty of attempt of a crime only if he or she falls short of achieving a desired outcome or if something stops the person from completing the intended crime. He contends that an attempt to commit a crime does not encompass situations involving voluntary abandonment of the crime.
As the State points out, however, this court previously has rejected voluntary abandonment as a defense to the charge of attempt to commit a crime when the defendant has committed an overt act toward the perpetration of the crime. In State v. Morfitt, 25 Kan.App.2d 8, 956 P.2d 719, rev. denied 265 Kan. 888 (1998), the defendant contended that there was insufficient evidence to support his conviction of attempted second-degree murder where, after he choked his victim, leaving ligature marks, bruising, and skin hemorrhages around her eye, he then returned her to her home. The defendant argued that his voluntary abandonment of his intent to kill the victim precluded conviction of attempted second-degree murder.
This court found the defendant's argument “wholly without merit” and quoted approvingly the following language from a treatise on criminal law:
“ ‘Assuming a defense of voluntary abandonment, does there come a point at which it is too late for the defendant to withdraw? Obviously there must be, for it would hardly do to excuse the defendant from attempted murder after he had wounded the intended victim or, indeed, after he had fired and missed. It might even be argued that it is too late whenever the defendant has taken the last proximate step, for at that point his dangerousness is not rebutted by the withdrawal.’ [Citation omitted.]” 25 Kan.App.2d at 19–20.
Corey's argument boils down to a proposition that L.H.'s attacker could be excused from the attempted rape of L.H. because he voluntarily abandoned the crime. But even if Kansas recognized the defense of voluntary abandonment, by the time L.H.'s attacker voluntarily abandoned his attempt to rape, he already had committed several overt acts toward the crime of rape: he took L.H. by force, hit her, pushed up her shirt and bra, unbuttoned her pants, and tried to pull her pants down. Following the reasoning of Morfitt, we reject Corey's argument on voluntary abandonment as a defense to the crime. Thus, the prosecutor did not misstate the law when he told the jury during closing argument that it did not matter why L.H.'s attacker stopped committing the rape.
Alleged misstatement of fact
Corey also asserts that the prosecutor misstated the facts when he repeatedly stated during closing argument that DNA testing showed Corey's DNA on the swabs from L.H.'s stomach. The State replies that the prosecutor was merely drawing a reasonable inference from the evidence presented. As our Supreme Court recently stated:
“Prosecutors enjoy wide latitude in crafting closing arguments. [Citation omitted.] This latitude allows a prosecutor to make reasonable inferences based on the evidence, but it does not extend so far as to permit arguing facts not in evidence. [Citation omitted.] Arguments must remain consistent with the evidence. If they are not, the first prong of the prosecutorial misconduct test is met....” State v. De La Torre, 300 Kan. ––––, ––––, 331 P.3d 815, 828 (2014).
Corey's claim focuses on the DNA testing performed on the swabs taken from L.H.'s stomach on the night of the attack. Soderholm testified that one of the swabs produced a partial DNA haplotype consistent with Corey's, which meant that Corey could not be excluded from being the DNA contributor. More specifically, she testified that “the probability of selecting an unrelated male at random from the general population with the partial male DNA haplotype obtained from [the swab] is approximately 1 in 9 individuals.” Corey contends that certain statements the prosecutor made in his closing argument exaggerated and strayed from this evidence because, at times, the prosecutor conclusively stated that Corey's DNA was found on L.H.'s body.
During closing argument, the prosecutor emphasized the DNA evidence and referred to the swabs of L.H.'s stomach multiple times:
“[T]hey swabbed her belly for DNA. Those DNA swabs were sent off to the KBI. They were tested. And they came back and the results of that DNA examination show that this defendant, Mr. Ralph Corey, cannot be excluded as the donor or the contributor of that DNA.... [H]e cannot be excluded from the DNA on her belly.”
Later in his closing argument, the prosecutor said, “From the belly swabs comes the DNA of this defendant. The defendant, he cannot be excluded.” (Emphasis added.) After discussing the DNA found on the hat and gloves, the prosecutor stated:
“Now the defense would have you believe those gloves were put there by somebody else, that the hat was put there by somebody else. And I know that the swabs from the belly, that could be whatever number it is or whatever the math is, but the problem with all that is, Ladies and Gentlemen, is you can't exclude him. He cannot be excluded.
“His DNA shows up on her belly. His DNA shows up on the gloves. His DNA shows up on the hat.” (Emphasis added.)
In rebuttal to defense counsel's closing argument, the prosecutor again stated, “In this particular case there is all this other DNA evidence. There's been DNA evidence taken from the belly of [L.H.] in which that DNA evidence is that this defendant cannot be excluded .” Finally, at the very end of his closing argument, the prosecutor stated, “Ladies and Gentlemen, this case you've got more than circumstantial evidence. You've got actual scientific evidence that places his DNA on items left at the scene and his DNA on her body. ” (Emphasis added.)
The State argues that the prosecutor's comments were a reasonable inference based on the evidence and within the wide latitude allowed prosecutors when considered within the entirety of the closing argument. The State refers this court to State v. Young, No. 106,451, 2013 WL 1339873 (Kan.App.2013) (unpublished opinion), rev. denied 297 Kan. –––– (2013), which it asserts is strikingly similar to this case. In Young, this court addressed whether the prosecutor's statements during closing argument that “it's [the defendant's] DNA” constituted misconduct when the evidence presented at trial had been that DNA test results showed only that the defendant could not be excluded as the contributor. 2013 WL 1339873, at *20–21. This court found that the statements were reasonable inferences and therefore were not misconduct. 2013 WL 1339873, at *21–22.
Young is distinguishable from Corey's case because the DNA testimony in Young showed that the probability of selecting an unrelated individual in the black community whose profile could be a potential contributor was 1 in 9,280. Here, the testimony was that the probability of selecting an unrelated male at random whose profile could be a potential contributor was one in nine. Also, in finding the statements to be a reasonable inference, the Young court relied to some extent on the victim's positive identification of the defendant as her attacker and other evidence tying the defendant to the crime. 2013 WL 1339873, at *21.
Although Young is not directly on point, the State's assertion that the prosecutor's comments here were a reasonable inference based on the evidence and within the wide latitude allowed prosecutors in closing argument is persuasive. Soderholm testified that the partial DNA profile from the stomach swab was consistent with Corey's DNA profile, although there was a one in nine probability of an unrelated male at random matching the profile. The prosecutor's statements that Corey's DNA was found on the stomach swab were a reasonable inference from the evidence presented at trial. The jury was well aware from the testimony and from the prosecutor's arguments that there was a one in nine chance of an unrelated male at random matching the DNA profile. Because the prosecutor did not misstate either the law or the evidence, we do not need to address whether Corey was prejudiced and denied a fair trial based on prosecutorial misconduct.
Cumulative Error
Next, Corey argues that even if this court decides that none of the other asserted errors requires reversal, this court should reverse his convictions based upon cumulative error. The State argues that there were no trial errors, but if this court finds otherwise, Corey's convictions should not be reversed based upon cumulative error.
“ ‘In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect is such that collectively they cannot be determined to be harmless. [Citation omitted.] In other words, was the defendant's right to a fair trial violated because the combined errors affected the outcome of the trial?’ [Citation omitted.]” Armstrong, 299 Kan. at 444–45.
Here, we have identified three trial errors. Corey's statutory and constitutional rights to be present at all critical stages of the trial were violated because (1) the record is silent as to whether Corey was present during the discussion of a jury question and the readback of testimony and (2) the trial judge engaged in ex parte communication with the jury. Also, the district court's instructions to the jury about the costs associated with a mistrial constituted error, but not clear error.
Our Supreme Court has stated that if the constitutional harmless error standard applied to any of the errors being considered in a cumulative error analysis, the constitutional error standard applies to the cumulative error analysis as well. Armstrong, 299 Kan. at 445 (citing State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 [2011] ). Because the constitutional harmless error standard applied to Corey's claims that his right to be present was violated, that standard also applies to the cumulative error analysis. Thus, the question is whether the State has proved beyond a reasonable doubt that cumulative error did not affect the outcome of the trial in light of the entire record.
“Several considerations are relevant to the weighing of whether error was cumulatively harmful, including ‘how the district court dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence.’ [Citation omitted.]” Armstrong, 299 Kan. at 445 (citing Tully, 293 Kan. at 205–06 ).
Under Armstrong and Tully, this court should examine three factors in assessing cumulative error. The first factor is how the district court dealt with the errors as they arose. But here, Corey made no objection to any of the trial errors being considered under our cumulative error analysis. Because Corey failed to object to any of the errors, the district court was never called upon to remedy the errors as they arose.
Second, we examine the nature and number of errors committed and their interrelationship. Here, we have three trial errors; two of the errors are interrelated and violated Corey's constitutional right to be present at all stages of his trial. None of the errors involved the admission or exclusion of any of the evidence presented at trial. Corey makes no claim that he was denied the right to present his defense to the jury. A cumulative error analysis requires the commission of at least two trial errors, but in some cases an appellate court will deny relief based upon cumulative error even when several substantial trial errors were committed by the district court. See State v. Carr, 300 Kan. ––––, 331 P.3d 544, 704–06 (2014) (11 substantial trial errors including district court's refusal to sever guilt phase of defendants' trial did not constitute cumulative error).
Third, we examine the strength of the evidence. We previously have outlined the overall strength of the prosecution's case, but we will do so again in order to assess Corey's claim of cumulative error. L.H. only caught glimpses of her attacker on the night in question, and she was unable to identify Corey at trial. Smith positively identified Corey as the man in the Walmart parking lot on the night of the attack. However, Smith's identification was impeached by some inconsistency between her trial testimony and her statement to the police. Significantly, however, both L.H. and Smith met separately with a composite sketch artist 2 days after the attack, and the sketch artist created composite drawings based on the young women's memories of the man. The composite drawings are similar to a photograph of Corey taken in 2002.
The strongest part of the State's case was the DNA evidence. One of the swabs from L.H.'s stomach produced a partial DNA haplotype consistent with Corey's DNA. But the accuracy of this testing was called into question because of the partial nature of the DNA profile. The DNA testing on the hat and gloves, which included better profiles, also matched Corey's DNA. Antle testified that the frequency of a match in the Caucasian population of the partial DNA profile obtained from the left glove was 1 in 7 billion, from the right glove was 1 in 62 trillion, and from the hat was 1 in 12 trillion. Corey's only explanation for how his DNA was found on the hat and gloves was that he used many pairs of gloves over the years as a trucker and that the gloves frequently were left behind or transferred from driver to driver. However, no one else's DNA was discovered on the hat and gloves left behind in L.H.'s vehicle. Stetler did not substantially challenge the accuracy of the results of the DNA testing on the hat and gloves.
Ultimately, whether a defendant is entitled to the reversal of his or her convictions based upon cumulative error is a judgment call to be made by the appellate court. Our Supreme Court has recognized that the cumulative error analysis is to some degree subjective. State v. Cruz, 297 Kan. 1048, 1074, 307 P.3d 199 (2013). Judicial experience comes into play. We do not minimize the seriousness of the errors committed by the district court at Corey's second trial. But the same reasons that led us to find that the individual errors were not reversible lead us to be convinced beyond a reasonable doubt that the result of this trial would have been no different without the errors. Thus, we conclude that Corey is not entitled to a new trial based upon cumulative error.
Apprendi Issue
Finally, Corey argues that the district court violated his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it sentenced him based in part on his criminal history without first requiring the State to allege his criminal history in the complaint and prove it beyond a reasonable doubt to the jury. Corey concedes that the Kansas Supreme Court already has decided this issue against him. See State v. Ivory, 273 Kan. 44, 45–48, 41 P .3d 781 (2002).
This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). There is no indication that the Kansas Supreme Court is departing from its position in Ivory. See State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011) (affirming Ivory ). Therefore, the district court did not violate Corey's constitutional rights under Apprendi.
Affirmed.