Opinion
No. 106,547.
2012-08-10
STATE of Kansas, Appellee, v. Cesar M. SANCHEZ, Appellant.
Appeal from Seward District Court; Clint B. Peterson, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Seward District Court; Clint B. Peterson, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
A jury convicted Cesar Sanchez of serious crimes: one count of aggravated robbery, two counts of aggravated assault, and one count of theft. But the district court violated Sanchez' rights at trial by holding some trial proceedings—answering a question from the jury during its deliberations—when Sanchez was not present to discuss the question or to hear the district court's response. That violated Sanchez' rights under a Kansas statute and under the United States Constitution.
When such errors are made, the State has the burden of showing that the error was harmless; otherwise, we must set aside the verdicts and send the case back for a new trial. Here, the State has not provided a reasoned argument in support of its claim that the error was harmless. So we must reverse the convictions and remand Sanchez' case for a new trial.
Factual and Procedural Background
On June 16, 2009, the State charged Sanchez with one count of aggravated robbery, two counts of aggravated assault, one count of identity theft, and one count of theft. The charges arose from a robbery that occurred earlier in the same month at Mr. Payroll, a check-cashing business located in a security area inside National Beef in Seward County. A man with a gun had pushed his way into a room behind the check-cashing windows at Mr. Payroll. The man was wearing a hooded jacket, sunglasses, and a ski mask. Once the man got inside the door, he demanded money from two men that were behind the counter. The robber ordered the two men to “get on the ground,” and they complied. One man heard the robber take money from the counter. Neither victim was able to see the man's face.
Security-camera footage showed the robber getting into a blue Jeep Liberty after completing the robbery; Sanchez drove a blue Jeep Liberty. Security-camera footage also showed an individual in National Beef just a few hours before the robbery. This individual was singled out in the footage because National Beef's assistant personnel director noticed what appeared to be a blue Jeep Liberty at the facility early that morning dropping an individual off at National Beef. The assistant personnel director reviewed the footage from this point forward and watched the man leave the vehicle and enter National Beef shortly thereafter. Two other witnesses later identified this individual as Julio, a name Sanchez was using at the time. According to an “absentee calendar,” Sanchez was unexpectedly absent from work that day.
To help in locating Sanchez, who had become a suspect in the crimes, Corporal Ryan Redman of the Liberal Police Department obtained a VIN number for Sanchez' Jeep Liberty from some paperwork found in his apartment in Seward County. Redman testified that he had provided that information to a police department in the Kansas City area.
Jeffrey Richards, a detective for the Overland Park police, found a possible second address for Sanchez in Overland Park. When Richards went to that address the month after the robbery, he saw a blue Jeep Liberty. Richards further testified, “I had been informed of a possible vehicle identification number but no tag information. I confirmed that it was the same vehicle by checking the tag and then I compared the VIN number to see and it was a match.” Richards testified that he believed he received the VIN number from Redman.
After the case was given to the jury for deliberations, the jury submitted a question to the district court, asking, “How was the VIN of the Jeep Liberty obtained?” Though defense counsel was present during the discussion with the court and the State to form a response to the question, the defendant was not present, nor was he present when the court gave its answer to the jury. The court asked defense counsel if he was “comfortable having this portion of the hearing without [the defendant] present,” to which he responded, “Yes.”
The court ultimately answered the jury's question by stating, “Ladies and gentlemen, I am unable to answer your question. Please use the collective memory and recollection of the entire jury as to the testimony and evidence admitted.” The record does not tell us whether this answer was read aloud in court or simply submitted in writing, only that “[a] response was given to the jury and deliberations continued.” The court asked defense counsel if there were any objections to the proposed answer and defense counsel said there were none. No objection was made thereafter to the court's response or to the defendant's absence.
On November 16, 2010, the jury convicted Sanchez of one count of aggravated robbery, two counts of aggravated assault, and one count of theft. Based on Sanchez' criminal history score of F, the district court imposed an 83–month prison sentence for the aggravated-robbery conviction. The district court then imposed two 12–month prison sentences for the aggravated-assault convictions. The district court imposed a 7–month prison sentence for the theft conviction. The district court ordered all of the sentences to run consecutively for a controlling 114–month prison sentence.
Sanchez filed a timely appeal to this court.
Analysis
The Convictions Must Be Set Aside and a New Trial Ordered Because Sanchez' Constitutional and Statutory Rights Were Violated.
Sanchez argues that two errors occurred during jury deliberations. First, he contends that the district court violated his constitutional and statutory rights by considering the jury's question and providing an answer to it without Sanchez' presence. Second, he contends that the district court's answer violated the district court's statutory duty under K.S.A. 22–3420(3) to provide a meaningful response to jury questions.
In response, the State argues that any error was invited error since Sanchez' attorney didn't object. Normally, when a defendant agrees to a particular court ruling, we say that the defendant may not complain on appeal of any error because the error was an invited one. See, e.g., State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012). Even if the error wasn't invited, the State also contends that any error was harmless.
We first must consider whether to address these issues at all since the defendant didn't raise them below, as we normally don't consider issues not first raised in the district court. See State v. Shadden, 290 Kan. 803, 813, 235 P.3d 436 (2010). But the State does not suggest we refuse to address Sanchez' claims on this basis. And both the Kansas Supreme Court and our court have previously addressed issues regarding how jury questions have been handled even though they were first raised on appeal. See State v. Womelsdorf, 47 Kan.App.2d 307, 320–21, 274 P.3d 662 (2012) (addressing issue though raised for first time on appeal and citing Kansas Supreme Court cases in which this had been done). We therefore proceed to consider the arguments the parties have made on appeal.
The Defendant's Right to Be Present Was Violated.
The United States Constitution provides that those tried for crimes must receive many important protections, two of which are in play here. First, the Confrontation Clause of the Sixth Amendment, applicable to the states through the Fourteenth Amendment, gives the defendant the right to be present in the courtroom at every stage of his trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353,reh denied398 U.S. 915 (1970); see K.S.A. 22–3405. And even when a defendant is not confronting witnesses or adverse evidence, he has a right under the Due Process Clause of the Fourteenth Amendment to be present “ ‘whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge’ [citation omitted]” and “would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987).
The Kansas Supreme Court has held that these rights apply whenever the court communicates with the jury, which is considered a critical stage of the trial. Crease v. State, 252 Kan. 326, 333, 845 P.2d 27 (1993); State v. Garcia, 233 Kan. 589, 595–96, 664 P.2d 1343 (1983), Because this is a personal right of the defendant, defense counsel can't waive the right on the defendant's behalf without first discussing it with the defendant. Crease, 252 Kan. at 334. No one contends here that Sanchez' attorney talked with him before the attorney said he had no objection to proceeding without Sanchez, so it's clear that Sanchez' constitutional rights were violated.
So too his statutory rights under K.S.A. 22–3420(3). It provides that if the jurors during deliberations “desire to be informed as to any part of the law or evidence,” they may ask the bailiff “to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant.” (Emphasis added.) And while the statute provides an exception if the defendant “voluntarily absents himself,” Sanchez didn't do so—he just wasn't invited or brought back at all. The district court held discussions about how to answer the jury's question—and then answered the question—without any chance for involvement by Sanchez. That violated his statutory rights under K.S.A. 22–3420(3).
The District Court Erred by Failing to Provide a Meaningful Response to the Jury's Question.
Although K.S.A. 22–3420(3) speaks of the jurors asking the bailiff “to conduct them to the court” should they have a question, actual practice involves them usually sending out a written question about any requests the jury may have. This allows the judge, counsel, and the defendant to consider the matter—outside the jury's presence—before responding. But the statute provides that when the jury has a question, “the information on the point of law shall be given, or the evidence shall be read or exhibited to them.” The district court has no discretion: it must offer appropriate information on the point of law or evidence at issue. State v. Bruce, 255 Kan. 388, 396–97, 874 P.2d 1165 (1994) (“the mandatory directive in K.S.A. 22–3420(3) moves the trial court response out of the realm of discretion”).
When the district court receives a request for information from the jury, it “must respond in some meaningful manner or seek additional clarification or limitation of the request.” State v. Boyd, 257 Kan. 82, Syl. ¶ 2, 891 P.2d 358 (1995); accord State v. Jones, 41 Kan.App.2d 714, 722, 205 P.3d 779 (2009), rev. denied 290 Kan. 1099 (2010). Here, the jury asked a question about the evidence—“How was the VIN of the Jeep Liberty obtained?—that could have been answered based on the testimony of two witnesses. An appropriate response would have been either to tell the jury what those witnesses (Redman and Richards) had said about that or to have had the court reporter read the testimony back to the jury in open court. See State v. Hayes, 270 Kan. 535, 540, 17 P.3d 317 (2001) (noting that when jury asks to have testimony read back to them, it generally is proper to do so).
Instead, the district court said that it was “unable to answer [the jurors'] question” and told them to “use the collective memory and recollection of the entire jury” to figure out what the testimony had been. But at least one juror apparently was unsure about the testimony concerning the VIN—even though that jury already had “the collective memory ... of the entire jury” available to him or her. And the jury, acting through its presiding juror, had forwarded a question about that evidence to the court. The court's failure to provide a meaningful response violated the court's statutory duty to do so.
The Errors Can't Be Deemed Invited Where the Rights at Issue Were Personal to the Defendant and He Wasn't Present to Waive Them.
We have concluded that the district court violated the defendant's constitutional and statutory rights to be present when the court considered the jury's question and then responded to it; the district court also violated its statutory duty to provide a meaningful response to the jury's question. Even so, the State argues that these are invited errors because Sanchez' attorney made no objection.
There can be no argument that Sanchez didn't invite the error of not having him present for any of this: Our Supreme Court has held that the invited-error doctrine does “not apply to an allegation that [the] defendant's right to be present during jury question discussions was violated, because this is a right personal to the defendant.” State v. Adams, 292 Kan. 151, 164, 254 P.3d 515 (2011).
The State is right that incorrect answers to jury questions have sometimes been deemed invited errors when the defendant's attorney agreed upon the answer given. See, e.g., Adams, 292 Kan. at 164–65;Bruce, 255 Kan. at 396–98. But if the defendant can't be considered to have invited the error of excluding his presence, the defendant shouldn't then be considered to have invited an error in the response to a jury question when the defendant had no opportunity for actual involvement. Here, the jury's question dealt with a factual question about testimony, not some technical legal question as to which a lay defendant would be unlikely to have input.
In the cases in which an incorrect response to a jury question has been held to be invited error, there either was no issue over the defendant's presence, the defendant had an opportunity to confer with counsel and help formulate the response, or the defendant was present. See Adams, 292 Kan. at 164 (noting that the defendant participated in the discussion of the question and had an opportunity to confer with counsel); Bruce, 255 Kan. at 397 (defendant's presence was not at issue); State v. Cramer, 17 Kan.App.2d 623, 631, 841 P.2d 1111 (1992) (noting that the defendant was present when the answer to the question was prepared), rev. denied 252 Kan. 1093 (1993). Sanchez did not invite the erroneous answer to the question asked by the jury in his case.
The State Hasn't Shown That the Errors Were Harmless.
The State finally argues that any error was harmless. The defendant, who filed his appellate brief first, included a two-page section arguing that the errors weren't harmless. The State's response is found in two sentences contained in separate sections of its brief:
? In the invited-error section of the State's brief regarding whether it was error to consider the jury's question without the defendant's presence, the State makes this argument: “In this case it certainly was harmless for the defendant to not be present when the parties agreed with the court to respond to the jury's question as it did.”
? In the section of the State's brief regarding whether the substance of the court's response to the jury's question was in error, the State makes a cursory mention of harmless error: “If any error occurred, it was harmless.”
We have noted that the error of not having Sanchez present when the court responded to the jury—a critical stage of the trial—violated his constitutional rights. More than 6 months before the State filed its appellate brief in this case, the Kansas Supreme Court explained that when a trial error involves one of the defendant's constitutional rights, the party benefitting from the error (generally the State) bears the burden to show that “there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). The court has since clarified the harmless-error standard for statutory errors: in most cases, the State has the burden of showing that there was no “reasonable probability” that the error affected the trial's outcome. State v. McCullough, 293 Kan. 970, Syl. ¶¶ 8–9, 270 P.3d 1142 (2012).
The State's cursory discussion of this issue in its appellate brief is more like the sort of incidental response that Kansas appellate courts deem to have waived an argument than a serious argument for harmless error. See State v. Gomez, 290 Kan. 858, 866, 235 P.3d 1203 (2010); State v. Butts, 46 Kan.App.2d 1074, 1089, 269 P.3d 862 (2012). Even if we give consideration to the harmless-error question, however, we are unable to declare these errors harmless under the tests announced in Ward and McCullough.
As we have already noted, the jury's question related to a factual question, not a legal one. We don't know why Sanchez' attorney failed to suggest a meaningful response to the question. Sanchez argues on appeal that had he been present, “he may well have recalled that two witnesses' testimony touched on the very issue about which the jury had a question, and he may have expressed a desire to provide the jury with a readback of that testimony.” That's plausible, and we know that at least one juror had a real question about this evidence.
Moreover, the jury's question may well have been important to its deliberations. Detective Richards testified that the Jeep Liberty he found in Overland Park “was a match.” If the VIN number had come directly from the vehicle seen at Mr. Payroll, a matching VIN number would have been very significant. But the VIN number was simply the one found for Sanchez' Jeep Liberty, which was the same color as the one seen at the crime scene—one reason why Sanchez was a suspect. Richards matched the VIN number for Sanchez' Jeep, not necessarily the one involved in the robbery.
We recognize that there is nonetheless strong evidence of Sanchez' guilt from other evidence. But there is a real chance that some or all jurors overemphasized Richards' testimony of a “match,” and the State has not attempted to explain in its appellate brief how or why the errors made here were harmless. We conclude that the State has not met the burden placed upon it in Ward and McCullough to show harmless error.
The defendant raised two other issues on appeal, but both are premised upon the convictions, which are being reversed. Sanchez argued that theft is a lesser-included offense of aggravated robbery so that the separate convictions for those offenses were multiplicitous. The State conceded that point on appeal, but the issue may not arise on retrial. Sanchez also argued that the district court's choice of giving him sentences equal to the highest of the numbers in each sentencing-guideline gridbox violated his constitutional rights. The Kansas Supreme Court has rejected that argument in other cases, e.g., State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207 (2008); State v. Ivory, 273 Kan. 44, Syl., 41 P.3d 781 (2002). But we can't presume that even if Sanchez is convicted again on some or all charges that the district court will again exercise its discretion to choose the highest possible sentence. Because neither of the additional issues raised will of necessity arise again in a further trial, we do not address them.
Conclusion
In sum, we have concluded that Sanchez' convictions must be reversed because he was denied his constitutional and statutory rights at trial. We do not set aside jury verdicts lightly. But Sanchez was sentenced here to serve nearly a decade in prison on these convictions, and we also recognize that no one can—or should—be sent to prison in the United States unless he or she has received a fair trial in compliance with constitutional requirements. See State v. Jackson, 39 Kan.App.2d 89, 100, 177 P.3d 419 (2008).
The district court's judgment is reversed, and the case is remanded for a new trial.