Opinion
110,433.
01-02-2015
STATE of Kansas, Appellee, v. Adam Richard HUDSON, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., POWELL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Adam Richard Hudson asserts that any one of the following three claims of error entitles him to a new trial: First, when the district court instructed the jury it used a special question on the verdict form to determine whether he possessed marijuana with the intent to distribute it within 1,000 feet of school property; second, it responded to a jury question in writing rather than in open court; and, third, it denied his motion to suppress. We agree that there was instructional error and error in responding to the jury question, but we find those errors harmless. We decline to consider the suppression issue because it was not preserved by an objection to the evidence at trial. We affirm Hudson's convictions.
Factual and Procedural Background
On the evening of February 5, 2013, Officers Michael Dunn and Trevor Wilkey of the Riley County Police Department were on bicycle patrol in Manhattan, Kansas, when they smelled strong odors of both burnt and fresh marijuana. They determined that the odors were coming from a home located at 502 Fremont Street. They approached the home to investigate. When they stepped on the porch, but before they knocked, the door opened and a woman and young boy walked out. The open door allowed them a clear view into the living room. Dunn observed a man, later identified as Hudson, sitting in a chair beside a coffee table. The officers saw a bong and a baggie of marijuana on that coffee table. Because the woman did not immediately close the door behind her, Hudson looked up and noticed Dunn standing on the porch near the door.
Hudson stood, went to the front door and attempted to close it, but Dunn blocked the door with his arm. Dunn then entered the home and handcuffed Hudson while Wilkey kept the woman and boy from leaving the property. Dunn later testified that he detained Hudson because he believed that, if Hudson would have been able to close the door, he would have had an opportunity to destroy the evidence on the coffee table.
As Dunn placed Hudson in handcuffs, Hudson started shouting for a man named Greg. Hudson informed Dunn that Greg was his roommate and was upstairs. While Wilkey watched Hudson, Dunn decided to perform a safety check to secure the residence. As Dunn headed up the stairs, Greg Chambers, the man Hudson had identified as his roommate, came out of a bedroom. Chambers informed Dunn that no one else was in the home. Dunn said that, just to be sure, he looked inside the bedroom that Chambers had just left. There, Dunn spotted “several potted marijuana plants kind of sitting out in the room,” which led him to suspect the residents were growing marijuana. Dunn brought Chambers downstairs. The officers secured Chambers and contacted their supervisors.
The police department had already been investigating 502 Fremont Street. Based in part on Dunn's observations and in part on the existing information gathered by the department, officers obtained a search warrant for the address. The subsequent search revealed an extensive, active marijuana grow operation with plants in both the upstairs bedroom and the basement. In the upstairs bedroom, officers discovered 65 plants (including 3 large “mother” plants used for root cloning) and 60 immature cloned plants without root systems. In the basement, they discovered 107 plants. The officers found not only the live marijuana but also dried marijuana and scales, causing them to believe Hudson was involved in both the cultivation of and distribution of marijuana.
The State charged Hudson with cultivation of marijuana and possession with intent to distribute marijuana. The latter charge was later amended to the enhanced offense of possession with intent to distribute marijuana within 1,000 feet of a school (the Woodrow Wilson Elementary School).
Prior to trial, Hudson moved to suppress all the evidence seized pursuant to the search warrant. Hudson argued that Dunn illegally searched the residence and that the search warrant failed to cure the taint of the illegal search. He asserted that the information in the affidavit accumulated in the police department's previous investigation was too stale to support a finding of probable cause. The State responded that any items Dunn and Wilkey observed through the open door were in plain view and that exigent circumstances supported Dunn's entry into the home. Further, the State maintained that, even without considering the marijuana Dunn observed in the upstairs area of the home, the search warrant was supported by probable cause.
After a hearing, the district court determined that, although Dunn legally peered through the open door, his entry into the home constituted an illegal search. Accordingly, the district court reasoned that “the evidence obtained as a result of that entry must be suppressed.” Turning to the warrant, however, the district court determined that, even without consideration of the information that Dunn gathered when he entered the home illegally, the odor of marijuana, plain-view contraband, and the police department's earlier investigation all provided “sufficient probable cause to support issuance of the warrant.” Consequently, the district court denied the motion to suppress.
Hudson's case proceeded to jury trial commencing June 4, 2013. The State presented evidence of Dunn's and Wilkey's initial investigation, the discovery of the marijuana grow operation, the scope and extent of the operation, and the chemical testing of the marijuana. Hudson did not object to the introduction of the marijuana evidence the district court had earlier refused to suppress. Dunn also testified that 502 Freemont was 855 feet from Woodrow Wilson Elementary School. Hudson did not challenge Dunn on the distance and produced no evidence to controvert the distance.
At the close of evidence, the district court and the parties reviewed the jury instructions. The parties agreed on a set of instructions that followed the forms and procedures suggested in Pattern Instructions in Kansas 4th. The district court instructed the jury on the elements of cultivation of marijuana, possession of marijuana with the intent to distribute, and the latter's lesser included offense of simple possession. Per suggestions under PIK Crim. 4th 57.020, it provided the jury a verdict form which included a separate special question regarding whether 502 Fremont was within 1000 feet of Woodrow Wilson Elementary School.
During their deliberations the jury submitted the following question to the district court: “Does the State have to prove that [Hudson] distributed within 1,000 feet or that he simply possessed with an intent to distribute within 1,000 feet?” The district court and parties, including Hudson, gathered to formulate an answer. After a brief discussion, the district court prepared a written response to the question, which the attorneys and Hudson reviewed and approved. The response provided: “The state has charged the defendant with possession with intent to distribute within 1,000 feet of a school. That is what the state had to prove.” The written response was then delivered to the jury.
The jury ultimately convicted Hudson of cultivation of marijuana and possession of marijuana with the intent to distribute within 1,000 feet of a school. Hudson timely appeals from those convictions.
Analysis
Did The District Court Err When It Submitted The Distance From The School Element Of The Charged Enhanced Offense In A Special Question Rather Than In A Separate Instruction With All The Elements Of The Enhanced Offense?
On appeal, Hudson claims that the district court erred in omitting from the elements instruction on the distribution charge the element of his proximity to the school. He then claims that the court compounded the error by using a special question on the verdict form to ask the jury whether Hudson possessed marijuana with intent to distribute within 1,000 feet of a school. Hudson reasons that because proximity to a school was an essential element of the enhanced charged crime (see K.S.A.2013 Supp. 21–5705 [d][5] ), he was entitled to have that included in a jury instruction delineating the elements of the specific, enhanced offense the State was required to prove. Hudson contends the instructional omission and the use of the special question constitute reversible error.
K.S.A.2013 Supp. 22–3414(3) precludes a party from challenging the district court's decision to give or failure to give a particular jury instruction unless (a) the party lodged a specific objection and stated the grounds supporting it or (b) the instruction given or the failure to give the instruction is clearly erroneous. See State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012). Here, Hudson acknowledges that he failed to object to the lack of an instruction on the enhanced offense, which would have included the proximity element, and to the special question verdict form. Hudson's challenge, then, fails unless he can demonstrate that the instructions given were clearly erroneous.
We agree with Hudson that the use of the special question verdict form here was error. Our Supreme Court has recently reiterated its rule that special questions have no place in criminal trials. In State v. Brown, 298 Kan. 1040, 318 P.3d 1005 (2014), the jury found the defendant guilty of rape of a child and aggravated indecent liberties with a child. The trial court there, as did the court here, followed the suggestions in the applicable PIK instructions. It submitted to the jury the Jessica's Law age determinations regarding Brown's age (whether he was 18 years or older at the times of the offenses) in special questions on the verdict form rather than including them in elements instructions. The Supreme Court held that Brown was entitled to have the jury instructed on age in the elements instructions because his age was an essential element of each of his enhanced, off-grid Jessica's Law crimes. The court held the district court erred in submitting the enhanced offense element of age to the jury in special questions on the verdict forms. 298 Kan. at 1046–48.
The Brown holding was not limited to Jessica's Law cases. The court was reiterating its rule against the use of special questions stated in State v. Osburn, 211 Kan. 248, Syl. ¶ 5, 505 P.2d 742 (1973), where the trial court used a special question to the jury in a possession of cocaine case. The Osburn court specifically held that the use of special questions in criminal trials is prohibited.
Hudson is correct, and the State concedes, that the district court's omission of proximity from an elements instruction and its use of the special question verdict form constitute error.
We next then consider, as the Supreme Court did in Brown, whether the instructional errors here were clearly erroneous, requiring reversal, or harmless. In Williams, our Supreme Court provided the following test to determine whether an instruction or a failure to give an instruction was clearly erroneous:
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein 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.” Williams, 295 Kan. 506, Syl. ¶ 5.
Put another way, we must determine whether the jury would have found Hudson not guilty had the instruction and special question errors not occurred. Here, the answer the jury gave to the special question sheds considerable light on the issue. First, the presiding juror signed the regular part of the verdict form, indicating: “We, the Jury, find the Defendant, Adam Richard Hudson, GUILTY of Possession with Intent to Distribute Marijuana. The form continued:
“If you find the Defendant guilty of possession with intent to distribute marijuana:
“Do you also unanimously find beyond a reasonable doubt that the Defendant possessed with the intent to distribute marijuana within 1,000 feet of school property?
“ ‘School property’ means property on which is located a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades 1 through 12. It is not required that school be in session or that classes are actually being held at the time of the alleged offense or that children must be present within the structure or on the property during the time of any alleged offense.”
The form also provided blanks for the jury to select “yes” or “no.” The jury selected “yes” and the presiding juror signed the form beneath that selection. Clearly the jury unanimously found, beyond a reasonable doubt, that Hudson possessed marijuana with the intent to distribute it within 1,000 feet of school property.
We also note that the evidence regarding the distance between 502 Fremont and Woodrow Wilson Elementary School was overwhelming and, in fact, uncontroverted. Dunn testified that he personally measured the distance at 855 feet using a Rolatape, following streets and sidewalks. Dunn also explained that the straight-line distance between the two properties was even less than the 855 feet he measured.
Finally, the district court confirmed in its response to the jury question that proximity was an integral part of what the State was required to prove. Again, the agreed-upon response to the jury question told the jury: “The state has charged the defendant with possession with intent to distribute within 1,000 feet of a school. That is what the state had to prove.”
Because nothing at trial served to challenge the distance testimony, because of its answer to the special question, and because of the court's response to the jury question, it appears highly unlikely that the jury would have reached a different verdict if the distance element appeared in a proper elements instruction rather than the special question.
We have not overlooked Hudson's contention that these errors are structural error requiring automatic reversal of his conviction. He claims that the errors impermissibly diluted the State's burden of proof. Brown made similar, although not identical, arguments to the Supreme Court in Brown, 298 Kan. at 1048. Nevertheless, the Brown court clearly held that the instructional errors there were subject to a harmless error analysis. We can see no reason why the same analysis would not be applicable here.
Moreover, this court recently rejected an identical structural error argument, albeit in a Jessica's Law age instruction context like that in Brown, in State v. Shelton, No. 108,709, 2014 WL 1508621, at *8–10 (Kan.App.2014) (unpublished opinion). The panel relied on Neder v. United States, 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), in which case, the panel noted: “The Court held the failure to instruct on an element amounted to no more fundamental an error than an otherwise defective element instruction. See 527 U.S. at 8–10 (distinguishing structural errors, such as deprivation of counsel, and observing error omitting element of offense “ ‘does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence’).” Shelton, at *8. The panel then applied the clear error analysis and found the instructional and special question errors on Shelton's age harmless. We agree with the Shelton panel's analysis on this issue. See also State v. Reyna, 290 Kan. 666, 680, 234 P.3d 761, cert. denied 131 S.Ct. 532 (2010).
The district court erred by omitting proximity from an elements instruction on the enhanced offense and in including it as a special question on the verdict form. But because we are not firmly convinced that the jury would have reached a different verdict had the instructional errors not occurred, the instructions were not clearly erroneous. The instructional errors here were harmless.
Did The District Court Err By Answering The Jury's Question In Writing Rather Than In Open Court?
Hudson next argues that the district court violated his constitutional and statutory rights by answering the jury's question in writing rather than in his presence in open court. Both the United States Constitution and K.S.A. 22–3405 guarantee a defendant the right to be present at every critical stage of his or her trial. State v. Herbel, 296 Kan. 1101, 1106, 299 P.3d 292 (2013). This guarantee includes the defendant's right to be present for communications between the district court and the jury after the jury retires for deliberation unless the defendant is voluntarily absent. K.S.A. 22–3420(3) ; Herbel, 296 Kan. at 1106. As the right of a defendant to be present implicates a question of law, our scope of review is unlimited. Herbel, 296 Kan. at 1106–07.
In State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013), our Kansas Supreme Court held that “any 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.” Here, Hudson and counsel were present while the district court drafted the answer to the jury question, and they approved the language used. Additionally, Hudson never objected to the district court's decision to have the written answer delivered to the jury rather than read in court. However, nothing in the record indicates that Hudson voluntarily chose this procedure, and the State concedes on appeal that the district court erred in answering the question in writing. As such, Hudson's right to be present during communications between the district court and the jury was violated.
But the inquiry cannot end there. Instead, our Supreme Court has repeatedly held that “a violation of the right to be present is subject to the harmless error rule.” State v. Betts, 272 Kan. 369, 391, 33 P.3d 575 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). When an error infringes upon a party's federal constitutional right, a court will declare a constitutional error harmless only where the party benefitting from the error persuades the court “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., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.3d 705, reh. denied 386 U.S. 987 [1967] ). Although the right to be present also implicates the violation of a statutory right, the constitutional harmless error test applies when violations of both statutory and constitutional rights arise out of the same acts or omissions. Herbel, 296 Kan. at 1110–11.
There are four factors regularly employed to determine whether the violation of the defendant's right to be present is harmless error:
“(1) the strength of the prosecution's case; (2) whether the defendant lodged an objection; (3) whether the communication concerned some critical aspect of the trial or was instead an innocuous and insignificant matter, as well as the manner in which the communication was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error.” State v. Bowen, 299 Kan. 339, 357, 323 P.3d 853 (2014).
Applying those factors here we first see the State's case as strong. Next, as the State observes in its brief, Hudson never objected to this procedure at trial. In fact, he and his counsel discussed the answer to the question with the district court and opposing counsel and approved the final answer. Then, although the question itself was not necessarily innocuous, the question only concerned the nature of the offense charged rather than a complicated matter of law, fact, or trial strategy. The district court's answer provided no new information to the jury. The delivery of the note to the jury by court staff was innocuous, and Hudson does not assert any facts that demonstrate otherwise. Although Hudson contends that the error requires reversal, he presents no argument as to how the written answer, aside from being procedurally incorrect, actually prejudiced him or changed the jury's verdict. In light of the entire record, we find that there is no reasonable possibility that this error affected the verdict in this case. See Ward, 292 Kan. at 569.
Hudson additionally contends that answering the question in this manner constituted structural error because it violated both his right to a public trial and his right to an impartial judge. However, Hudson fails to support this claim with precedent from this or any other jurisdiction. Failure to support a point with pertinent authority or to show why it is sound despite a lack of supporting authority is akin to failing to brief the issue. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013) ; Bowen, 299 Kan. at 356 (“[Defendant] does not discuss this caselaw—or any other, for that matter—and does not give this court the benefit of any analysis [on the public trial argument], which is particularly suspect given his claim that ... this constitutional infraction is structural error.”).
Moreover, this court has repeatedly rejected Hudson's structural error claims in the context of improper communication with a jury, presence of the defendant, right to a public trial, and right to an impartial judge. See State v. Womelsdorf, 47 Kan.App.2d 307, 324–25, 274 P.3d 662 (2012) (rejecting contention that answering a jury question in writing violated defendant's right to a public trial), rev. denied 297 Kan. 1256 (2013); State v. Whitmore, No. 109,924, 2014 WL 4435858, at *8–9 (Kan.App.2014) (unpublished opinion) (listing cases in which this court applied Womelsdorf and rejected alleged violations of both the right to public trial and right to an impartial judge). State v. Ramirez, 50 Kan.App.2d –––, 334 P.3d 324, 332–33, (2014) (applying Womelsdorf and rejecting alleged violations of both the right to public trial and right to an impartial judge). Hudson offers no persuasive analysis as to why this court's previous rationales are unsound.
The district court did err in responding to the jury's question in writing rather than by reading the answer to the jury in open court in Hudson's presence. However, that error is harmless as there is no reasonable possibility that it altered or affected the verdict. Hudson's failure to support his other arguments is akin to waiving them, and this court has previously rejected those same contentions.
Did The District Court Err In Denying Hudson's Motion To Suppress?
Finally, Hudson argues that the district court committed reversible error when it denied his motion to suppress.
We must dispose of this issue summarily and deny Hudson relief. Our Supreme Court has held that “when a pretrial motion to suppress has been denied, the moving party must still object to the introduction of the evidence at trial in order to preserve the issue for appeal.” State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009). The Supreme Court has held that this rule is derived from the provisions of K.S.A. 60–404, often called the contemporaneous-objection rule. The statute requires that the objecting party lodge a “timely interposed,” specific, on-the-record objection in order to preserve an issue of evidence admissibility for appeal. Houston, 289 Kan. at 270. Because of this timeliness requirement, our Supreme Court and panels of this court have held that even objections both at the beginning of trial and at the close of the State's evidence do not satisfy the contemporaneous-objection rule. See State v. Jones, 267 Kan. 627, 637–38, 984 P.2d 132 (1999) (objection prior to trial), abrogated on other grounds by State v. Deal, 293 Kan. 872, 269 P .3d 1282 (2012) ; State v. Daniels, 28 Kan.App.2d 364, 365, 17 P .3d 373 (2000) (objection at close of State's evidence), rev. denied 212 Kan. 1420 (2001).
Here, Hudson requested a continuing objection to the evidence obtained from the search warrant prior to the start of jury selection. The district court informed Hudson that he needed to contemporaneously object the first time any evidence obtained under the search warrant was offered. However, a review of the record reveals that Hudson failed to contemporaneously object to the admission of any of the evidence gathered pursuant to the search warrant.
We are duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Hudson did not preserve this issue for appeal.
Affirmed.
ATCHESON, J., concurring.
I concur fully in the panel's decision and write separately only to reiterate my view that the contemporaneous objection rule need not and should not be applied to bar review of a criminal defendant's appeal of the district court's denial of a pretrial motion to suppress evidence based on a violation of the Fourth Amendment to the United States Constitution. I have discussed at some length the improvidence of applying the contemporaneous objection rule in that circumstance. State v. White, No. 109,953, 2014 WL 5312873, at *8–15 (Kan.App.2014) (unpublished opinion) (Atcheson, J., concurring), petition for rev. filed. Nov. 10, 2014. We should be permitted to consider the merits of Defendant Adam Richard Hudson's appeal on that point. Because we cannot, I offer no opinion on the merits.