Opinion
No. 112,638.
02-12-2016
STATE of Kansas, Appellee, v. Henry SULLIVAN, Appellant.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM.
A jury sitting in Wyandotte County District Court convicted Defendant Henry Sullivan of a series of vicious crimes. On appeal, he complains that the district court handled video recordings of statements he made to law enforcement officers in a way that compromised his constitutional rights to a public trial and to be present at all critical stages of the prosecution. Although the recordings were treated oddly, peculiarity itself does not translate to constitutional infirmity. We, therefore, affirm the convictions.
The jury convicted Sullivan of three counts of rape, five counts of aggravated criminal sodomy, and one count of aggravated robbery arising from separate attacks on three women in which a man accosted them on the street and then brutally abused them. The incidents happened between 2008 and 2010. Given the issues on appeal, we need not detail the circumstances of the attacks. So we turn to the odd saga of the video recordings.
In late 2011, a DNA sample from Sullivan matched biological evidence law enforcement officers collected and retained during their investigation of the attacks. Two detectives from the police department for the Wyandotte County Unified Government interrogated Sullivan at police headquarters. Sullivan was informed of his Miranda rights and agreed to speak with the officers.
As we understand the interrogation process, one detective questioned Sullivan for several hours. The entire exchange was video recorded. Toward the end of the interrogation, the detective audiotaped questioning of Sullivan that reiterated the most salient, i.e., incriminating, aspects of the earlier examination. A second detective was present for part of that interrogation. A short time later, the second detective questioned Sullivan for about an hour. That questioning took the same format: All of it was video recorded and a shorter, more focused examination was also audiotaped. The video recordings were preserved on a set of DVDs.
During the jury trial in March 2014, the State offered and the district court admitted the audiotapes, and they were played in open court for the jurors. Sullivan asked to be excused from the courtroom during that part of the trial. The district court informed Sullivan of his right to be present and secured from him personally and his trial lawyer a waiver of that right. The district court then allowed Sullivan to leave as the audiotapes were played. (Unbeknownst to the jurors, Sullivan was placed in a holding cell near the courtroom, since he was a pretrial detainee.)
During the questioning of one of the detectives, the prosecutor offered into evidence the DVDs containing the video recordings. At a bench conference, Sullivan's lawyer asked if the State intended to “publish” the video recordings, meaning play them for the jurors during the trial. The prosecutor said the DVDs were about 6 hours long, so she had no interest in playing them during the trial and simply wanted them admitted as exhibits and available to the jurors during deliberations. Sullivan's lawyer generally objected without stating a specific ground. The district court overruled the objection.
Later, Sullivan's lawyer told the district court she was concerned that inadmissible information possibly implicating Sullivan in other crimes might appear on the DVDs. She said she had viewed the DVDs much earlier in her case preparation and could not recall. The district court told the lawyer to take another look at the recordings. The next morning before closing argument, the lawyer advised the district court that she had again reviewed the DVDs and “did not see anything objectionable.” The jurors began their deliberations about 2:20 p.m. and returned the guilty verdicts about 2 ½ hours later. Nothing in the record suggests the jurors looked at the DVDs during their deliberations.
At a sentencing hearing, the district court imposed a 570–month term of imprisonment on Sullivan to be followed by lifetime postrelease supervision. Sullivan has timely appealed.
Sullivan's principal point on appeal revolves around the DVDs and their submission to the jurors. Basically, Sullivan contends the failure to play the DVDs in open court during the trial deprived him of a public trial as guaranteed in the Sixth Amendment to the United States Constitution and a Fourteenth Amendment due process right to be present at all critical stages of a criminal case. The right of a criminal defendant to be present is also codified in K.S.A.2015 Supp. 22–3405(a).
The Kansas Supreme Court recently discussed at some length the constitutional right of a criminal defendant to a public trial. State v. Reed, 302 Kan. 227, 236–243, 352 P.3d 530 (2015). We look to Reed for its studied guidance on this issue. The Sixth Amendment right to a public jury trial belongs to the criminal defendant, the idea being an open proceeding discourages prosecutorial overreaching and encourages judicial evenhandedness. In short, criminal defendants are not to be tried in secret. News media and members of the general public have more limited cognate rights of access to criminal trials. See Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 9, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (recognizing right of access under First Amendment to United States Constitution, though subservient to criminal defendant's right to fair trial). But the criminal defendant's right neither attaches to every aspect of a criminal prosecution nor is it absolute as to trial proceedings. A district court may close part of a trial in exceptional circumstances to serve “an overriding interest” that otherwise would be severely compromised. Closures, however, should be rare.
Violation of a criminal defendant's right to a public trial amounts to a structural error, meaning no identifiable prejudice need be shown to grant relief. And invited error on the defendant's part will not obviate the violation. Reed, 302 Kan. at 238.
Here, however, nobody in the district court treated the handling of the DVDs as a public trial issue or problem. We don't see a Sixth Amendment violation in this case under the circumstances. First, salient portions of Sullivan's statements to the police were presented in open court. Sullivan could have requested the full video recorded statements be played for the jurors during the trial. But he didn't. And there were obvious tactical benefits to him in not having that ground ploughed twice—initially with the audiotapes and then with the DVDs. From a distance at least, the State's offer of the DVDs into evidence, especially after electing to have the audiotapes admitted, seems cumulative. But that would be an evidentiary error, not a constitutional deprivation.
In this case, all of the proceedings related to the DVDs and to Sullivan's statements to the police were conducted in open court. The fundamental purposes of the Sixth Amendment right to public trial were served. Certainly, evidence should be offered and admitted in open court rather than behind closed doors, as was true here. But it doesn't follow that admitted evidence necessarily need be displayed so that every aspect of it may be studied by someone sitting in the courtroom. For example, if the State offered without objection stacks of bank records in a prosecution for embezzlement, say to show a pattern of sizeable deposits by the defendant, the Sixth Amendment would not require that those records somehow be shown during the trial in a way that would allow anyone in the gallery to see each page. We think the DVDs and the statements on them were akin to the hypothetical bank records at least for purposes of Sullivan's right to a public trial. The parties were aware of their content. The detectives testified generally about their content. And all of the discussions about admitting the DVDs, including the district court's rulings, were made in open court.
On appeal, Sullivan relies heavily on United States v. Noushfar, 78 F.3d 1442, 1444 (9th Cir.1996), but the case is distinguishable. There, the defendant objected to admitting 14 surreptitious recordings of conversations between the defendants and an undercover operative and to submitting the tapes to the jurors during deliberations when none of them had been played in open court during the trial. The Ninth Circuit found reversible error based on the district court's violation of the Federal Rules of Criminal Procedure and the Federal Rules of Evidence coupled with a general failure to oversee the handling of evidence submitted to jurors during deliberation. As a result, the tapes were not “presented and tested in front of the jury, judge and defendant.” 78 F.3d at 1445. There was no comparable error here in that Sullivan did have the opportunity to test in open court the statements he made and significant portions of his recorded statements were played during the trial. Sullivan also declined to request publication of the DVDs. Moreover, the Noushfar court did not base its ruling in any way on a purported violation of the defendants' Sixth Amendment right to a public trial. The case, therefore, doesn't support Sullivan's argument on that score.
We now consider Sullivan's related argument. A defendant in a criminal case has the constitutional right to be present at critical stages of the prosecution, particularly when his or her presence may advance his or her defense against the charges. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987); State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 (2013) (right to be present at critical stages of trial). Sullivan argues his right was violated when the district court submitted the DVDs to the jurors during their deliberations. We disagree.
Sullivan, of course, was present with his lawyer when the DVDs were discussed with the district court. We don't understand him to be suggesting otherwise. Juror deliberations do not entail trial proceedings at which a defendant is entitled to be present in the sense he or she could sit in the jury room. Again, Sullivan is not arguing otherwise. He was present when the jurors were selected, evidence was presented (except for his requested absence), the district court instructed the jurors on the law, the lawyers argued to the jurors, and the jury's verdict was received. Those are critical stages in the proceedings.
Jurors are commonly given exhibits admitted at trial for their consideration during deliberations. See State v. Grauerholz, 232 Kan. 221, 224, 654 P.2d 395 (1982) (noting the “normal practice” of providing exhibits to jurors at the start of deliberations); State v. Fenton, 228 Kan. 658, 667, 620 P.2d 813 (1980). In 2014, the Kansas Legislature codified the practice. K.S .A.2014 Supp. 22–3420(c). We do not see in that practice a violation of a criminal defendant's constitutional right to present at a critical stage of the proceedings. How the jurors may review or rely on the admitted exhibits is a function of their deliberations in the same way their discussion of the evidence or the district court's instructions would be. A defendant doesn't get to sit in on the jurors' decisionmaking process.
Sullivan seems to contend that if the jurors viewed the DVDs of his statements to the police, the viewing should have been done in open court while he and his lawyer were present. Even if that were correct (and we don't think it is), the constitutional deprivation would be subject to harmless error review. State v. Davis, 284 Kan. 728, 732, 163 P.3d 1224 (2007); State v. Mann, 274 Kan. 670, 682–83, 56 P.3d 212 (2002). The supposed error would be harmless for at least two reasons. First, after being fully informed of his right to be present, Sullivan waived that right and asked to leave the courtroom when the audiotapes of his statements were played in front of the jury. We may fairly conclude he would have done the same if the DVDs had been played. Second, Sullivan's presence during the playing of the DVDs would not have changed anything. The content of the recordings was fixed at the time Sullivan spoke to the detectives. Both he and his lawyer knew what they contained. So Sullivan's presence during any jury review of the DVDs neither would have added to nor detracted from the evidence against him. In turn, the outcome of the trial would have been no different. We may safely conclude the claimed error would have been harmless beyond any reasonable doubt.
Accordingly, Sullivan has asserted no sound basis for questioning the validity of the jury verdicts and the resulting convictions.
For his only other point on appeal, Sullivan contends the district court improperly considered his criminal history in imposing sentence. He argues that the district court's use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by the jury. He relies on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support that proposition. He also acknowledges the Kansas Supreme Court has rejected the argument and has found the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution with respect to the use of a defendant's past convictions in determining a presumptive statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009); State v. Ivory, 273 Kan. 44, 4648, 41 P .3d 781 (2002). We, therefore, decline Sullivan's invitation to rule otherwise, especially in light of the Kansas Supreme Court's continuing affirmation of Ivory. State v. Hall, 298 Kan. 978, 991, 319 P.3d 506 (2014); State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013).
Affirmed.