Opinion
No. 108,055.
2013-08-2
STATE of Kansas, Appellee, v. John W. CRAVENS, Appellant.
Appeal from McPherson District Court; Carl B. Anderson, Jr., Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. David A. Page, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from McPherson District Court; Carl B. Anderson, Jr., Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. David A. Page, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
John W. Cravens directly appeals his conviction by a jury of attempted second-degree murder and the resulting 72–month presumptive prison term. He raises four issues on appeal. First, he claims the court erred in failing to grant his motion for a new trial based on juror misconduct when a juror failed to reveal that he was acquainted with one of the witnesses. However, we find Cravens has failed to establish that the juror answered any questions propounded to him untruthfully and, therefore, the district court did not abuse its discretion in finding that Cravens failed to meet his burden to establish that misconduct occurred.
Second, Cravens contends that the reasonable doubt instruction that was provided to the jury was clearly erroneous. But our Supreme Court has recently addressed the use of the same instruction and found that although the instruction is not favored it is legally appropriate.
Cravens next argues that cumulative error denied him a fair trial. Because we find there was no trial error this claim fails. And finally, Cravens contends the trial court violated his constitutional rights by using his prior convictions to enhance his sentence without first requiring them to be proven to a jury beyond a reasonable doubt under principles enunciated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). But our Supreme Court has previously rejected this argument, and we are duty bound to follow Supreme Court precedent.
Accordingly, we affirm the decision of the district court in all respects.
Factual and Procedural History
As a result of an investigation into the stabbing of Shelby Coffin, the State charged John Cravens with attempted second-degree intentional murder. Following a 2–day trial, a jury convicted Cravens as charged. This is Cravens' direct appeal. He does not challenge the sufficiency of the evidence to support his conviction. Viewed in a light most favorable to the State, that evidence revealed as follows.
Late in the evening on June 27, 2011, Cravens woke up his nephew Jeff Strawn by banging on his front door. He reported to Strawn that he had just stabbed Coffin during an argument and asked what he should do. Strawn had previously been a roommate of Cravens and Coffin, during which time he and Coffin frequently used drugs and alcohol and sometimes had sex. Strawn told Cravens he wanted no part of the stabbing incident because he had “been in enough trouble.” He told Cravens to leave and urged him to call for help.
Soon thereafter, a 911 dispatcher received a call from a man who requested an ambulance be sent to a home in McPherson because his girlfriend had been “ ‘stabbed with a knife.” ’ Sergeant David Reed responded only a couple of minutes later and found Cravens sitting in a chair on the front porch of the home. Cravens, who had a small amount of dried blood on his forearm, admitted to Reed that he had stabbed his girlfriend, said she needed an ambulance, and told Reed to “ ‘take him to jail.” ’
Another officer arrived and remained with Cravens while Reed went inside the home, where he found Coffin in a bedroom, weak, and lying on a bed covered in blood. A steak knife with blood on it was lying on the floor next to the bed.
Coffin's memory of the events surrounding her stabbing was foggy. She did consistently recall that earlier in the evening, she and Cravens had shared “a fifth” of whiskey, eaten dinner, taken their dog out for a run in the country, and returned home with plans to watch a movie. The next thing Coffin remembered was feeling a sharp pain in her lower left side. During interviews with the police while she was still in the hospital in the days following, Coffin reported that Cravens had stabbed her in the living room, as she was getting ready to play a movie. There was some suggestion Coffin may have learned these details from Strawn when he visited her in the hospital. Regardless, the police investigation suggested this could not have been the case in light of the amount of blood in the bedroom and lack of blood in the kitchen or living room.
During her trial testimony just 4 months later, Coffin admittedly could not remember any of these specific details of the stabbing, such as where she was at when it happened, what time it was, where Cravens was, or if she ever saw a knife. Nor did Coffin specifically recall what she told medical professionals or the police the next day in the hospital after she got out of surgery to repair the nine stab wounds to her back, stomach, and chest.
Cravens' defense primarily involved diverting the jury's attention toward circumstances that tended to suggest he was not actually involved in Coffin's stabbing. For example, Cravens: suggested his alleged confession when Reed arrived was misunderstood or misconstrued; highlighted Coffin's history of harming herself, particularly while drinking or when a loved one threatened to leave her; challenged Coffin's credibility; noted the lack of physical evidence connecting Cravens to the stabbing, particularly the lack of blood on him that night; and suggested Strawn may have had some ulterior motive in providing Coffin details about the stabbing that Coffin then reported to the police.
The jury deliberated for several hours, during which it asked several questions of the court and reviewed some of the evidence offered during trial before returning a guilty verdict. Cravens thereafter moved for a new trial alleging a juror had committed misconduct by failing to disclose his friendship with Strawn during voir dire. Following an evidentiary hearing, the trial court denied that motion for reasons that will be explained below in more detail. The court thereafter sentenced Cravens to a standard presumptive prison sentence of 72 months based on his criminal history score of G. This appeal by Cravens follows.
Analysis
In his first issue on appeal, Cravens' challenges the trial court's denial of his motion for new trial based on juror misconduct.
K.S.A.2012 Supp. 22–3501(1) provides a trial court authority to grant a new trial upon motion of a defendant “in the interest of justice.” This court reviews the trial court's decision on a motion for new trial brought under this statute for an abuse of discretion. See State v. Warrior, 294 Kan. 484, 510, 277 P.3d 1111 (2012). As our Supreme Court had explained:
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594(2012).
Cravens bore the burden of proving juror misconduct.
Allegations of juror misconduct generally trigger a progressive two-step inquiry. First, a court must determine whether the defendant has shown juror misconduct. If so, a court must then consider whether the State has “show[n] beyond a reasonable doubt that the error did not affect the trial's outcome.” Bell v. State, 46 Kan.App.2d 488, Syl. ¶ 1, 263 P.3d 840 (2011), rev. denied ––– Kan. –––– (September 14, 2012).
Cravens alleged the jury foreman (T.W.) committed reversible juror misconduct when he failed to respond during voir dire after the trial court asked potential jurors whether they knew potential trial witnesses. Cravens said he first became aware of T.W.'s misconduct when one of Cravens' family members recognized T.W. after he identified himself as the jury foreman and one relative recalled that T.W. and Strawn had grown up together. Cravens alleged T.W. intentionally concealed his friendship with Strawn from the court.
The precise context of the trial court's pertinent questioning of potential jurors that took place at the opening of voir dire is important here. After explaining how the voir dire process worked, the trial court questioned whether any of the potential jurors knew Cravens. Having received no responses to that inquiry, the court continued:
“I'm going to read down some potential witnesses. I don't know whether these people will be called or not. They're simply potential witnesses at this point.... What I want to know is whether you're related to, or if you know any of these people more than just in passing. I know in a small community such as ours that we' re going to know people in passing. I'm not concerned about that. What I'm concerned about is whether you know them to a degree that you feel you would have a problem in judging their testimony if they were called as a witness. For instance, if a good friend of mine was put on the stand I might have a tendency to accept whatever he or she says without truly testing the credibility of that testimony. By the same token, if someone was put on the stand I didn't like, I might have a tendency to reject whatever they say without testing their credibility. That's what I'm interested in knowing, is whether you know any of these people to that kind of a degree.” (Emphasis added.)
Strawn was the first witness the trial court mentioned by name, and none of the potential jurors responded. They did, however, respond when other potential witnesses were named. When one potential juror mentioned being friends with a police officer the court had named as a potential witness, the trial court once again clarified the nature of the relationship that the potential jurors needed to disclose:
“Sometimes that's tough when friends are called to testify that we put too much credibility without judging the credibility. I'm not saying whether he is or isn't, I'm just saying that sometimes we accept it at face value simply because it's a friend and not where we're truly judging in light of everything else. My question is can you put that all aside and judge [the potential witness'] testimony fairly and impartially to both sides, both to the, not only to the State but also to the defense?”
Potential jurors who answered this question affirmatively—including T.W. after he mentioned knowing another potential witness who was a customer at the bank where T.W. worked—were not stricken from the panel; those who answered negatively were stricken.
The trial court denied Cravens' motion following an evidentiary hearing upon finding he failed to establish juror misconduct.
To reiterate, the trial court conducted an evidentiary hearing on Cravens' motion for new trial based on juror misconduct. Cravens presented testimony from four witnesses, each of whom generally testified about their knowledge of T.W.'s and Strawn's interactions while growing up together in the same town. Cravens did not present any direct evidence from Strawn or T.W. At the close of the hearing, the trial court took the matter under advisement.
In a letter ruling filed the following week, the court overruled Cravens' motion for a new trial. In support, the trial court explained:
“I have carefully considered this evidence and I have come to be conclusion that although I might believe that [T.W.] knew the witness, Strawn, there is no compelling evidence that indicates that they were close friends or in any way related. In a small community such as our own it would almost be impossible to grow up and not know individuals and go to school with them. During that process the fact that they happened to be attending a party at the same time does not make [T.W.'s] non-response misconduct.
“I have carefully reviewed Kansas law and I am satisfied that he key ingredient that must be present to establish misconduct in a situation such as this is the juror acting intentionally. In this case, he wasn't even asked if he knew the witness, but rather, only if he knew him to a degree that it would make it difficult to fairly and impartially judge his testimony. A non-response to such question, if true, is not jury misconduct.”
In challenging this ruling on appeal, Cravens summarily contends the trial court erred because “T.W.'s failure to honestly answer the [trial] court's question regarding whether he knew the witnesses involved in this case was misconduct.” The State responds that the trial court did not abuse its discretion because Cravens did not meet his burden of establishing that T.W.'s failure to disclose that he knew Strawn amounted to juror misconduct. We agree with the State.
The only evidence Cravens offered in support of his position that T.W. committed misconduct consisted of details of the interactions between T.W. and Strawn as revealed through Cravens' witnesses' testimony at the evidentiary hearing. That testimony generally established: T.W. and Strawn had grown up together; as children, they spent the night at each other's homes; their mothers worked together and were friends; they shared a babysitter at times; their friendship continued through high school; and they had attended the same parties after high school. According to Cravens, this evidence established that T.W. knew Strawn “more than just in passing,” and T.W.'s failure to point this out in response to the court's question constitutes juror misconduct.
As the trial court later explained in reaffirming its denial of Cravens' motion for new trial on this point during the sentencing hearing, “[t]he fallacy in [Cravens'] argument” is that it either wholly disregards or misconstrues the trial court's questions posed to the potential jurors. The court did not ask the potential jurors simply whether they knew any of the potential witnesses “more than just in passing.” Rather, the court asked the potential jurors to reveal their relationship with named potential witnesses only if the potential juror felt he or she “would have a problem in judging [that] testimony if [the potential witness] were called as a witness .”
The trial court did not abuse its discretion in not recalling the jury.
Cravens seems to suggest the trial court precluded him from meeting his burden of proving juror misconduct by refusing to recall the jury or to allow Cravens to question jurors about T.W.'s possible misconduct and any effect T.W.'s relationship with Strawn may have had on the verdict. In his motion for new trial, Cravens did request, among other things, that the trial court order “[t]hat defense counsel be allowed to interview and obtain affidavits from the jurors regarding [T.W's] conduct during jury deliberations,” “[t]hat the jury be recalled to give testimony on that subject” and “[t]hat an evidentiary hearing be held wherein defense counsel is permitted to call jurors (particularly [T.W.] ) and other witnesses to testify regarding the facts raised herein and in the accompanying affidavits.” But there is nothing in the record that supports Cravens' suggestion that the trial court expressly refused Cravens' attempts to recall or otherwise question the jurors.
Part of Cravens' argument here overlooks the fact that he did not need an order, assistance, or permission from the trial court to interview or obtain affidavits from willing jurors. See Williams v. Lawton, 288 Kan. 768, 790–95, 207 P.3d 1027 (2009) (discussing propriety of posttrial interviews with jurors and stating: “Under Supreme Court Rule 169 , attorneys may discuss a trial with willing jurors after their discharge from jury duty and may do so without seeking permission from the district judge unless contrary orders have been given.”). The trial court instructed the jurors at the close of the trial that they were allowed but were not required to talk to anyone about the case. Nothing in the record indicates Cravens ever took advantage of this available option. As the trial court later stressed, “[it] didn't prevent [Cravens] from getting into that area.”
The trial court did need to be involved, however, to the extent that Cravens wanted to recall the jury for questioning on the record about T.W.'s alleged misconduct and its effect, if any, on the verdict. See Supreme Court Rule 181 (2012 Kan. Ct. R. Annot. 273) (“A juror may be called to testify at a hearing on a posttrial motion only if the court—after a hearing to determine whether all or any jurors should be called—grants a motion to call the juror.”).
Whether to recall jurors to answer for misconduct is generally a decision left to the district judge's sound discretion. See Williams, 288 Kan. at 788. Cravens suggests, however, that the trial court lacked any discretion here because his allegation implicated his constitutional right to a fair trial by an impartial jury. In support, Cravens cites Saucedo v. Winger, 252 Kan. 718, 732, 850 P.2d 908 (1993).
But Saucedo is distinguishable and does not support Cravens' suggestion that the trial judge lacked discretion to not recall the jury. Saucedo involved a plaintiff's appeal from a defense verdict in a medical malpractice action. On appeal, the plaintiff challenged the trial court's denial of her attempts to recall the jury, which she had supported with affidavits from jurors that specifically described two instances of juror misconduct. First, the affidavits indicated that a juror had told the jury during its deliberations that his daughter, who went to school with one of plaintiff's key witnesses, told him the witness frequently spoke Spanish—an important fact that directly contradicted the witness' trial testimony that he did not know Spanish. Second, two jurors' affidavits indicated that another juror mentioned during deliberations that the deceased's uncle was a cocaine dealer and it was possible a cocaine overdose caused the death at issue in the case. The jurors further indicated that they had preliminarily all voted in favor of a verdict for plaintiff at the opening of their deliberations. Despite the trial court's agreement that this was juror misconduct, it refused to recall the jury. 252 Kan. at 723.
A majority of our Supreme Court found the trial court's failure to recall the jury was reversible error. Specifically, the majority held that these two instances of juror misconduct, “introduced extraneous evidence during jury deliberations which had a substantial effect upon the issues and the validity of the verdict.” 252 Kan. at 733. And because the trial court had erroneously refused to recall the jury to determine whether that was, indeed, the case, our Supreme Court held a new trial was required. 252 Kan. at 733.
This case varies from Saucedo in at least two important respects. First, Cravens never submitted any affidavits or other form of evidence from the jurors who convicted him to demonstrate that any misconduct had, indeed, occurred here. Second, Cravens' allegation of juror misconduct varies significantly in gravity from the misconduct admitted by three of the jurors in Saucedo . Here, the trial court had nothing before it other than speculation about third parties' understanding of a relationship that might exist between T.W. and Strawn and how that alleged relationship might have affected the jury's deliberations.
Simply put, Cravens' speculative allegations are insufficient for this court to find the trial court's failure to recall the jury is reversible error. As our Supreme Court recently cautioned:
“ ‘A recall of the jury is not a routine matter. Jury service is a public duty of citizens and recall of jurors after their service has ended to testify as to events occurring in the jury room during deliberations is a serious step. That step is to be undertaken only for just cause. The procedure should never be utilized as a fishing trip upon a losing party's hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon the party seeking an order to recall the jurors to show the necessity for the order. [Citation omitted.]” ’ State v. Kirkpatrick, 286 Kan. 329, 351, 184 P.3d 247 (2008), abrogated on other grounds State v. Sampson, 297 Kan. ––––, 301 P.3d 276, 282 (May 3, 2013).
The sort of fishing trip the Kirkpatrick court disapproved is exactly the purpose for which Cravens wanted to recall jurors in the instant case. In light of our Supreme Court's clear directive regarding the seriousness of recalling a jury after its service has ended and the lack of evidence for a recall in this case, we cannot say the trial court abused its discretion in not recalling the jury.
The trial court did not abuse its discretion in denying Cravens' motion for a new trial
In sum, the trial court's finding that Cravens failed to establish T.W.'s failure to respond to the voir dire question at issue was dishonest or an intentional effort to hide a bias from the court is a negative factual finding. To successfully challenge this negative finding, Cravens must prove an “ ‘arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. [Citation omitted.]’ [Citations omitted.]” See State v. Carapezza, 293 Kan. 1071, 1080, 272 P.3d 10 (2012). Cravens makes no such showings here.
Because Cravens has not established juror misconduct under the first step of the inquiry, this court cannot say the trial court abused its discretion in denying his motion for new trial. And because Cravens did not meet his burden of proof on the first step of the juror-misconduct inquiry, we do not need to reach his arguments addressed toward the second step of the inquiry, prejudice.
The trial court's reasonable doubt instruction was not clearly erroneous.
In his second issue on appeal, Cravens challenges the propriety of the following instruction given to the jury:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty. The test you must use in determining whether the defendant is guilty or not guilty is this[:] If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
The problem is that the emphasized term “any” should have read “each” according to PIK Crim.3d 52.02 (2010 Supp.), the pattern instruction applicable at the time of Cravens' trial. And because of this variance, Cravens contends this court cannot be sure that the jury held the State to the proper burden of proof. Put another way, Cravens suggests there is a reasonable likelihood that the jury interpreted this instruction in a way that allowed it to find Cravens guilty without determining the State had proven each and every element of the charged offense. And, as a result, Cravens insists this court must reverse and remand for a new trial.
The State acknowledges the problem but urges this court to follow the reasoning of other panels of this court that have concluded this variance does rise to the level of clearly erroneous instructional error.
Standard of review
Our Supreme Court recently clarified how appellate courts review allegations of instructional error in State v. Williams, 295 Kan. 506, 510–16, 286 P.3d 195 (2012). As with allegations of juror misconduct, Williams describes a progressive, multi-step review.
First, this court must determine whether this issue has been preserved. It is undisputed here that Cravens failed to object to this instruction below. Despite such an omission, however, his argument can still be reviewed for clear error as provided in K.SA.2012 Supp. 22–3414(3).
The second step of instructional-error review requires this court to decide whether there was, indeed, error. To do so, this court conducts an unlimited review of the entire record to determine whether the subject instruction was legally and factually appropriate. If so, this court's inquiry ends there. If not, this court must then turn to a reversibility inquiry, i.e., it must assess whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. See Williams, 295 Kan. 506, Syl. ¶¶ 4–5.
To aid in our analysis, our Supreme Court recently considered and rejected a challenge to the same instruction in State v. Herbel, 296 Kan. 1101, 1120–24, 299 P.3d 292 (2013). In support, our Supreme Court agreed with the holding and rationale of this court in State v. Beck, 32 Kan.App.2d 784, 787, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004). Herbell, 296 Kan. at 1124. In Beck, this court flatly rejected the argument that the word “ ‘any,’ as used in this context, could somehow create ambiguity or result in [the defendant] being convicted if only one element of the crime is proven.” 32 Kan.App.2d at 787. This court further reasoned in Beck that the fact the separate elements instruction told the jury the State had to prove each of the elements of the crime effectively “negate[d] any potential confusion that may have been caused by the use of the word ‘any’ in [the reasonable doubt instruction].” 32 Kan.App.2d at 787–88. In conclusion, our Supreme Court did note that the instruction that Cravens now complains about was “not the preferred instruction”; but it found, nonetheless, that it “was legally appropriate.” Herbel, 296 Kan. at 1124.
Without any indication that our Supreme Court will be departing from this quite recent holding in Herbel, this court is duty bound to follow it. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Because Cravens presents no other argument regarding the legal or factual inappropriateness of this instruction, we conclude the reasonable doubt instruction given in this case was not clearly erroneous.
There is no cumulative error here.
In his third issue on appeal, Cravens asserts that cumulative error denied him his right to a fair trial.
The doctrine of cumulative error provides that while an individual trial error may not, alone, entitle a defendant to a new trial, where trial errors can collectively be said under the totality of the circumstances to have substantially prejudiced and denied the defendant his right to a fair trial, then a new trial is warrants d. See Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). But cumulative error will not be found when the record fails to support any of the errors raised on appeal by the defendant. State v. Wells, 296 Kan. 65, Syl. ¶ 22, 290 P.3d 590 (2012). Such is the case here. Accordingly, Cravens' cumulative error argument necessarily fails.
The trial court's use of Cravens' prior convictions to enhance his sentence did not violate the principles enunciated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
In his fourth and final issue on appeal, Cravens contends the trial court violated his constitutional rights by using his prior convictions to enhance his sentence without first requiring them to be proven to a jury beyond a reasonable doubt under principles enunciated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He acknowledges our Supreme Court's holding to the contrary in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and raises this issue only to preserve it for federal review.
Absent some indication that our Supreme Court is departing from its position in Ivory, this court is duty bound to follow that ruling. See Jones, 44 Kan.App.2d at 142. Our Supreme Court continues to follow its position in Ivory without divergence. See, e.g., State v. Hood, 297 Kan. ––––, 300 P.3d 1083, 1089 (May 17, 2013). Likewise, the United States Supreme Court has reaffirmed its holding in Apprendi that prior convictions need not be proven to a jury beyond a reasonable doubt. James v. United States, 550 U.S. 192, 214 n. 8, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007).
Affirmed.