Opinion
112,078.
07-24-2015
STATE of Kansas, Appellee, v. Clayton SMITH, Appellant.
Grube, of Kansas Appellate Defender Office, for appellant. Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Grube, of Kansas Appellate Defender Office, for appellant.
Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Clayton Smith appeals his conviction for being a felon in possession of a firearm. Smith argues the trial court erred in the manner it responded to jury questions; that his 30–day jail sanction as a condition of probation was an abuse of discretion and unfairly prejudicial; and the State did not prove his convictions to a jury beyond a reasonable doubt. Finding no error, we affirm.
Factual and Procedural History
Smith and his wife Brenda were friends of Lina Burkholder and her late husband. After Burkholder's husband died, Smith approached her about purchasing two of her husband's guns. She eventually sold the two guns to Smith for $100 each. Burkholder memorialized the sale on a piece of cardboard with the date February 16, 2013, because she wanted to remember that Smith took a third gun, an antique pistol, to get it appraised. He eventually returned the pistol and did not buy it. After she learned that Smith was a convicted felon, Burkholder reported the purchase to Deputy Steve Davis with the sheriff's department, who confirmed Smith was a convicted felon.
Davis spoke with Smith's wife, Brenda, at their house and she told him that Smith “deals with guns.” Davis spoke with Smith at Smith's father's house. Smith first told the police that his wife had purchased the guns but then recanted after they told him they had already spoken with his wife. Smith admitted to Davis and Deputy Jim Bogart that he had in fact purchased the guns from Burkholder. The guns were ultimately found in the location where Smith said the officers could find them—in his father's shed.
At trial, Smith's defense was that Burkholder had reported the gun transaction because he and Brenda had stopped giving Burkholder rides to the grocery store and helping her with other errands. Brenda testified about the souring of Burkholder's relationship after they stopped providing transportation for her. Brenda testified she had purchased the two guns in question from Burkholder along with several other items. Brenda said she purchased the items because Burkholder needed money to pay some bills. Brenda denied telling the police officers that she did not know anything about Smith purchasing guns from Burkholder.
During deliberations, the jury asked several questions of the trial court. After consultation and agreement with all parties, including Smith, the court provided written answers to the questions. The jury convicted Smith as charged. The trial court sentenced Smith to an underlying sentence of 16 months' incarceration. Despite Smith's lengthy criminal history, this was still a presumptive probation case and the trial court ordered Smith to serve 18 months' probation on community corrections. As one of the conditions of probation, the trial court ordered Smith to serve 60 days in the county jail. However, the court ordered 30 days to be served immediately and stayed the remaining 30 days to be served if Smith violated his probation. The court then told Smith the 30 days of immediate jail time would be stayed if Smith decided to appeal his case. Smith filed a timely notice of appeal.
Analysis
Handling The Jury Questions
For his first point of error, Smith argues that because the trial court failed to respond to the jury's questions in his presence, he was denied his constitutional rights to be present at all critical stages of his trial, to an impartial judge, and to a public trial. In addition, he claims the answers to the questions were not meaningful. But before we consider the merits of the issues raised, we must respond to the State's argument that by failing to object when the opportunity was presented, Smith has waived his right to raise these issues on appeal.
Factually, the State is correct. Smith did not object to the procedure used or the accuracy of the responses at the time the questions were propounded and answered. In fact, defense counsel indicated he had no objection and even suggested one of the answers. Smith does not argue that he was not present with counsel when the questions were reviewed and the answers were formulated by the court and counsel. To the contrary, the record suggests that he was present. He confines his argument to the point in time when the court, through the bailiff, provided the jurors with the answers to the questions in the jury room. So we must first examine whether his stated issues have been properly preserved for appeal.
Smith's constitutional claims are properly before us.
Our Supreme Court has made it abundantly clear that without a contemporaneous objection, any issues raised for the first time on appeal, including constitutional issues, will not be heard unless the party properly asserts one of the limited exceptions to this general rule. See State v. Godfrey, No. 109,086, 2015 WL 3439127, at *2 (Kan.2015).
In his brief, Smith lists two reasons that we should address his claims surrounding the response to jury questions for the first time on appeal. First, he asserts we should consider it because the Supreme Court has considered these issues for the first time on appeal before. The fact that an appellate court may have considered the issue for the first time on appeal on a prior occasion is not one of the approved exceptions. State v. Williams, 298 Kan. 1075, 1085–86, 319 P.3d 528 (2014) (“Future litigants should consider this a warning and comply with Rule 6.02[a][5] by explaining why an issue is properly before the court if it was not raised below—or risk a ruling that an issue improperly briefed will be deemed waived or abandoned.”). Appellant's brief was submitted after the Williams decision was filed. Accordingly, the fact that the Supreme Court or this court may have considered any of Smith's appellate issues in the past in spite of the fact that they were not properly preserved does not form a basis for us to consider them now.
Second, Smith asserts that “the constitutional right to a public trial is a fundamental right and such an issue may be considered on appeal even in the absence of a contemporaneous objection.” Preventing the denial of a fundamental right is a recognized exception to the contemporaneous objection rule. State v. Spotts, 288 Kan. 650, 652, 206 P.3d 510 (2009). Our Supreme Court has long recognized the right to a public trial as a fundamental right. See State v. Reed, No. 106,807, 2015 WL 3814889, at *7 (Kan.2015) (citing State v. McNaught, 238 Kan. 567, 577, 713 P.2d 457 [1986] ). Likewise, the right to be present at all critical stages of the trial and the right to an impartial judge are fundamental rights. See State v. Killings, 301 Kan. 214, 240, 340 P.3d 1186 (2015) (citing Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353, reh. denied 398 U.S. 915 [1970] ) (right to be present at critical stages); State v. Womelsdorf 47 Kan.App.2d 307, 323, 274 P.3d 662 (2012) (citing Ward v. Village of Monroeville, 409 U.S. 57, 59–60, 93 S.Ct. 80, 34 L.Ed.2d 267 [1972] ) (detailing the right to an impartial judge), rev. denied 297 Kan. 1256 (2013).
Accordingly, we will consider the merits of Smith's constitutional arguments. We have unlimited review over any alleged constitutional violations. See State v. Hilt, 299 Kan. 176, 200, 322 P.3d 367 (2014).
Smith's right to a public trial and his right to an impartial judge were not violated.
Smith argues the procedure used by the trial court violated his right to a public trial under the Sixth Amendment of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights because the communication of the court's response took place in the jury room, not the public courtroom. Smith also combines this right with his right to an impartial judge present at every stage of the proceedings under the Fourteenth Amendment to the United States Constitution. He argues that if “no judge is present at a critical stage of the trial, then no impartial judge is present.”
These arguments were both raised in Womelsdorf, 47 Kan.App.2d at 323–25. The court in Womelsdorf found no violation of the rights to a public trial or an impartial judge, noting that in the same procedure used in Smith's trial, the court's written responses to the jury's questions were available as part of the public court file and not hidden from public view. 47 Kan.App.2d at 324–25. Further, the discussion of the court's response was on the record in Smith's presence. Likewise, in State v. Ramirez, 50 Kan.App.2d 922, 334 P.3d 324 (2014), another panel of this court found Womelsdorf persuasive and also noted that the right to a public trial does not necessarily extend beyond the evidence phase of the trial. 50 Kan.App.2d at 933. The court noted that the reasons for public trials—insuring judge and prosecutor responsibility and discouraging perjury—are not impacted by written answers to jury questions that are discussed in open court and made part of the record. 50 Kan.App.2d at 933. The Ramirez court further found that the cases involving the right to an impartial judge generally involve a trial judge with a conflict of interest or a pecuniary interest in the outcome of the case and facts that do not remotely resemble those here. 50 Kan.App.2d at 934.
The analysis in both Womelsdorf and Ramirez is persuasive. Here, the trial court's responses to the jury's questions provided no new facts or legal principles to consider. The questions were discussed on the record. Smith does not contend this discussion took place somewhere other than in the open courtroom. The conduct of the trial court and both counsel in discussing the question and appropriate response was on the record and in open court. No new testimony was involved, and the agreed upon answers were simply delivered to the jury for its deliberation. Consequently, we find no violation of the constitutional right to a public trial or an impartial judge.
Smith's constitutional right to be present at all critical stages of the trial was violated, but the error was harmless.
Smith does not allege that he was absent during the court's discussion with the attorneys regarding the jury's written questions and the ultimate decision how to respond to them. However, he argues that both his statutory and constitutional right to be present at all critical stages of the trial was violated when the judge had the answers to the jury questions delivered to the jury room outside of his presence.
First, as to Smith's statutory argument, K.S.A. 22–3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
This provision, according to our Supreme Court, mandates that any question from the jury concerning the law or evidence is to be answered in open court in the defendant's presence unless the defendant is voluntarily absent. State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013). Because Smith did not waive his right to be present at the presentation of the answer to the jury, the Supreme Court has specifically found that the procedure used by the court in this case violates the statute as it existed at the time of Smith's trial. See State v. Verser, 299 Kan. 776, 789, 326 P.3d 1046 (2014).
But that does not end our analysis of the statute. We note that after the notice of appeal was filed in this case, K.S.A. 22–3420 was amended by the legislature to provide that the trial court shall respond to jury questions either “in open court or in writing. ”(Emphasis added.) K.S.A.2014 Supp. 22–3420(d). The legislature also clearly provided for the retroactive application of the amendments in K.S.A.2014 Supp. 22–3420(f) (“The amendments to this section by this act establish a procedural rule, and as such shall be construed and applied retroactively.”). Although the State addresses the change in the statute and concludes that it resolves any claim of statutory error by allowing a written response to jury questions, Smith presents no argument to the contrary. Because a reply brief is intended to provide the appellant an opportunity to address new issues or material raised for the first time in the appellee's brief, we can only assume that Smith does not dispute the application of the 2014 amendments to this case and consider any argument to the contrary waived. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (issue not briefed by the appellant is deemed waived and abandoned).
Although the legislature has eliminated Smith's statutory argument concerning the method for answering a jury's question under K.S.A.2014 Supp. 22–3420 our Supreme Court in Verser, 299 Kan. at 788–89, also held that the procedure used by the trial court in this case violates a defendant's rights under the Sixth Amendment to the United States Constitution, which guarantees that a criminal defendant may be present at every critical stage of his or her trial. But see State v. Bolze–Sann, No. 105,297, 2015 WL 3814861, at *15–20 (Kan.2015) (Stegall, J., concurring) (pointing out conflict in caselaw); State v. Wells, 296 Kan. 65, 91–92, 290 P.3d 590 (2012) (“[T]here is no need that the court read the written answer it decided out loud to the jury in open court while the defendant is present. Simply delivering the answer the court decided upon to the jury via written note is sufficient to satisfy the defendant's right to be present.”).
Thus, we conclude the district court erred in not recalling the jurors to the courtroom to answer their questions.
In light of this error, we next apply the federal constitutional harmless error standard from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967), to determine if the error requires us to reverse Smith's convictions. See State v. Herbel, 296 Kan. 1101, 1110–11, 299 P .3d 292 (2013). Under this standard,
“[E]rror 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.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
In examining the trial court's improper method of communicating its response to a jury question, we use the four-factor test in State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 (1998), to determine whether the district court's error requires reversal. See Verser, 299 Kan. at 789–90. Those factors are (1) the overall strength of the prosecution's case; (2) whether an objection was lodged to the improper communication; (3) whether the 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 the posttrial remedy to mitigate the constitutional error. McGinnes, 266 Kan. at 132. We examine these factors in turn.
With regard to the first factor in this harmless error analysis, we find the prosecution's case here was strong. Burkholder testified that Smith purchased two guns from her for $100 each. Burkholder made a note of the purchase on a piece of cardboard because she wanted to remember that Smith had taken a third gun, an antique pistol, to get it appraised. He eventually returned the pistol. Deputy Davis testified that Burkholder contacted the police department to report that she had sold two guns to Smith who she later found out was a convicted felon. Davis confirmed that Smith was a convicted felon. Then, when asked about the guns, Burkholder admitted to Davis and Deputy Bogart that he had in fact purchased the guns from Burkholder and they were in his father's shed. Therefore, this factor weighs in favor of a finding that the error was harmless.
With regard to the second factor, Smith did not lodge an objection below and participated in crafting the answers to the jury's questions. This also weighs in favor of harmless error.
As to the third factor, we find the substance of the jury's questions related to a critical aspect of the trial—the elements of criminal possession of a firearm. However, the jury's questions are intensely factual and trial courts should take great caution in answering such factual type questions for fear of over or under emphasizing the evidence presented at trial. Here, the trial court's written responses to the jury questions were correct statements of law and could not have contributed to the verdict. Kansas courts have generally considered written answers to jury questions as being less critical than detailed jury communications such as reading back trial testimony. Womelsdorf, 47 Kan.App.2d at 322–24. Following are the questions submitted by the jury and the trial court's response:
Question: “1. Did the father know the firearms were in his shed?”
Answer: “1. You must decide the case by applying the instructions to the facts as you find them.”
Question: “2. Act occurred?-The act being the sale/possession of the firearms or the act meaning the arrest?”
Answer: “2. The defendant is charged with criminal possession. You must decide the case by applying the instructions to the facts as you find them.”
Question: “# 3 Does it mean that he was possessing a gun @ the exact time of the crime, theft?
# 3 or—Does it mean he had possession (with the meaning on the instruction.)
# 3 Does some measure of access mean access @ his home/farm?”
Answer: “The prior crime referred to in paragraph 3 of Instruction 5 is the theft. You must decide the case by applying the instructions to the facts as you find them.”
The trial court, prosecutor, defense counsel, and Smith all participated in crafting the answers to the jury's questions. In its responses, the trial court did not misstate the law, did not provide additional information, and did not place any emphasis on whether the jury should find Smith guilty or not guilty.
“A trial court may not ignore a jury's request submitted pursuant to K.S.A. 22–3420(3) but must respond in some meaningful manner or seek additional clarification or limitation of the request. It is only when the trial court makes no attempt to provide a meaningful response to an appropriate request or gives an erroneous response that the mandatory requirement of K.S.A. 22–3420(3) is breached. Once the trial court attempts to give an enlightening response to a jury's request or seeks additional clarification or limitation of the request, then any issue as to the sufficiency or propriety of the response is one of abuse of discretion by the trial court.” State v. Boyd, 257 Kan. 82, Syl. ¶ 2, 891 P.2d 358 (1995).
The third factor weighs in favor of harmless error.
Regarding the fourth factor, both Smith and his counsel were aware of the procedure used to respond to the jury's questions but chose not to pursue any posttrial remedies. Without any objection or posttrial motion before the district court, the only remedy still available is reversal.
We conclude there was no reasonable possibility that the trial court's failure to read the answer to the jury's question in open court with both the jury and Smith present contributed to his guilty verdict. None of the factors considered in the harmless error analysis weigh in Smith's favor. The jury received no new information from any of the communications, and there is no evidence of any misconduct by the bailiff in delivering the court's response to the jury. The error was harmless.
The 30–Day Jail Sanction
The court did not abuse its discretion in imposing a 30–day jail sanction as a condition of probation.
Next, Smith argues the trial court abused its discretion by ordering a 30–day jail sanction as a condition of his probation and then staying imposition of the jail time until completion of Smith's appeal.
K.S.A.2014 Supp. 21–6607(b)(14) gives the trial court the authority to impose jail sanctions, not to exceed 60 days, as a condition of probation. Here, as a condition of his probation, the trial court ordered Smith to serve 60 days in the county jail, but then ordered Smith to serve 30 days immediately in the county jail and 30 days upon a future probation violation. The trial court then stayed the immediate 30–day jail sentence if Smith appealed his case. Smith argues this is an abuse of discretion.
We review the trial court's imposition of conditions of probation under an abuse of discretion standard. Applying this standard, we must consider whether reasonable persons could differ about the propriety of the decision, and whether the decision was made within applicable legal standards. State v. Green, 283 Kan. 531, 545, 153 P.3d 1216 (2007).
Smith asserts that the court's stay of his jail term pending his appeal was an abuse of discretion. He states he will likely have completed the majority, if not all, of his probation before a decision is reached in this case. He argues it is an abuse of discretion for him to serve 30 days in the county jail well after completion of his probation, if he loses his appeal. Smith claims he will have a steady job by then that would be in jeopardy and the result would be a financial burden on the State for housing him during the 30–day period. In addition, his family would have to seek State assistance without his income. He also argues the “shock value” of serving jail time prior to going on probation is lost in the current scenario.
But the fact remains that the sentence in this case was not illegal, and Smith does not argue it is. Smith is not challenging the trial court's authority to impose 60 days in the county jail as a condition of his probation. Smith is also not arguing the trial court did not have the authority to require Smith to serve 30 days immediately and then 30 more days if he violated the conditions of his probation. See K.S.A.2014 Supp. 21–6607(b)(14) (jail time “need not be served consecutively”). Rather, Smith is arguing it was an abuse of discretion for the trial court to stay his jail time while the appeal was pending.
We agree with the State that Smith's concerns could have been addressed by his choosing to serve his 30 days in jail immediately, rather than wait until the conclusion of the appellate process. Smith did not object to the stay. He offers no explanation for not raising an objection with the district court at the time the stay was entered. It could have been quickly remedied by simply requiring him to report to jail immediately as originally planned. It is clear that the trial court was not attempting to penalize Smith for taking his appeal, but rather extending a courtesy of staying the immediate jail time for Smith to pursue appellate review of what he believed to be a viable claim. If Smith had been successful in his appeal, he would not have been required to serve any jail time at all. We find no abuse of discretion in the trial court's decision to impose jail time as a condition of probation or to stay Smith's jail term pending his appeal.
Use of Criminal History Information
The district court was not required to submit Smith's criminal history to a jury prior to sentencing.
Last, Smith also argues the trial court violated his constitutional rights when it used his criminal-history information without proving it to a jury beyond a reasonable doubt, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). But the Kansas Supreme Court has consistently ruled against this argument. State v. Ivory, 273 Kan. 44, 45–48, 41 P .3d 781 (2002). The court has shown no indication that it is departing from its previous position and has, in fact, consistently reaffirmed Ivory. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013). We are bound to follow this precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
Affirmed.