Opinion
No. 106,782.
2012-12-7
John D. HOWARD, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Robb W. Rumsey, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Robb W. Rumsey, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
Following a trial by jury, John D. Howard was convicted of aggravated battery. On appeal, Howard's principal argument is that the trial court erred in denying his K.S.A. 60–1507 motion. In this motion, Howard asked for a new trial based on his forced removal from the courtroom during a hearing involving a motion in limine. Howard contends that appellate counsel was ineffective for failing to create a sufficient record with regard to his removal from the courtroom. Howard also contends that the trial court committed judicial misconduct in having him removed from the courtroom. Of these two claims, we find merit only in the ineffective assistance of appellate counsel claim. Nevertheless, we determine the error was harmless. Accordingly, we affirm.
In 2006, a jury convicted Howard of aggravated battery for his role in an attack upon Matthew Brantley. Howard's friend and co-defendant, Cooper Tunnell, was allegedly sending text messages to his ex-wife on the evening of the altercation, threatening to harm Brantley. At Howard's trial, the State alleged these threats led to a physical altercation between the three men—and that Howard struck Brantley in the forehead and mouth with a gun. Howard's story was that he was merely trying to stop the fight when he hit Brantley in the head and that he did not recall hitting Brantley a second time or hitting him in the mouth.
On direct appeal from his conviction, Howard complained about his absence from a motion hearing. Before trial, but after the completion of voir dire, Howard, his trial attorney Kurt Kerns, Tunnell, and Tunnell's attorney met with the trial judge to consider an outstanding motion in limine. State v. Howard, No. 96,620, 2007 WL 4158164, at *1 (Kan.App.2007) (unpublished opinion). During this meeting, the following conversation took place:
“ ‘THE COURT: That'll simplify matters considerably. I mean leave now. Don't give me that look.
“ ‘DEFENDANT HOWARD: I'm sorry.
“ ‘THE COURT: We can do that with him in custody if he prefers. Do you understand that?
“ ‘MR. SYLVESTER: I do, your Honor. I just
“ ‘THE COURT: All right. He's your client. I expect you to take care of that.
“ ‘MR. SYLVESTER: Okay.’ “ 2007 WL 5158164, at *2.
Howard claimed on appeal that he was ordered from the courtroom without explanation, noting that the trial court's record on the matter was insufficient. 2007 WL 5158164, at *2. Howard contended that his expulsion from the courtroom occurred during a ruling on an evidentiary matter and that he had a fundamental right to be present. Howard argued his absence from the courtroom during the ruling forced him to rely on counsel's interpretation of that ruling and limited his ability to challenge counsel's strategic trial decisions.2007 WL 5158164, at *2.
This court rejected Howard's claim, reasoning (1) that because Howard did not object to the trial judge's statement about him leaving the courtroom, the trial court did not state its reasons for excluding Howard on the record, so there was no ruling for this court to review and (2) that nothing in the record proved Howard was actually removed from the courtroom, and it was Howard's burden to furnish a record that affirmatively showed prejudicial error occurred at trial. 2007 WL 5158164, at *2. This court affirmed Howard's conviction.
Next, Howard filed a K.S.A. 60–1507 motion in the trial court. Howard's sole complaint was that trial counsel failed to object to his removal from the courtroom and appellate counsel failed to create a sufficient record so the issue could be reviewed on appeal.
At an evidentiary hearing on Howard's K.S.A. 60–1507 motion, Kerns testified that the trial judge was engaging in “bizarre behavior” when he ordered Howard from the courtroom. Kerns stated that Howard was merely trying to get his coat when the trial judge told him to “get out, get out.” Kerns recalled that the trial judge made some sort of “threat,” suggesting he might revoke Howard's bond. Kerns further testified that he did not object to Howard's absence from the courtroom because he believed that the judge might revoke Howard's bond and place Howard in jail during his trial. Kerns testified that Howard ultimately left the courtroom and the trial judge proceeded to hold the motion hearing.
Kerns testified that he “might have had time” to communicate the judge's evidentiary rulings to Howard before trial, but he could not remember whether he told Howard or not. Kerns testified, however, that it was his “normal practice” to discuss the results of pretrial rulings with his clients. With regard to the content of the hearing, Kerns testified that there were no evidentiary procedures at the hearing, no witnesses, and no protractive legal arguments because the arguments were basically summaries of previously written arguments.
The trial court ruled that the removal of Howard from the courtroom violated his right to be present during all critical portions of his trial. Moreover, the trial court held that there was no legal justification for the removal of Howard; the removal was not voluntary; Kerns knew the removal of Howard was improper and unconstitutional; and Kerns' failure to object to the removal was not based on trial strategy but on fear for what the judge would do if Kerns objected. The court further held that Kerns was deficient for failing to object to the removal of Howard from the courtroom. Nevertheless, the trial court denied Howard's request for a new trial, finding the error was not so serious as to deprive Howard of a fair trial; but the court held that Howard was deprived of a fair appeal due to appellate counsel's failure to adequately supplement the record on the issue of Howard's removal, finding there was a reasonable probability of a different outcome had appellate counsel not committed this error. Thus, the court ordered that Howard be allowed to “resubmit” his direct appeal.
On appeal this court determined that there was no authority for the trial court to grant a second direct appeal. Thus, this court dismissed Howard's appeal. See State v. Howard, 44 Kan.App.2d 508, 238 P.3d 752 (2010).
Next, Howard moved for reconsideration of his K.S.A. 60–1507 motion. The trial court ultimately denied Howard's motion, finding that although Kerns was deficient, there was no basis for granting a new trial because Howard had not demonstrated a reasonable probability of a different outcome absent Kerns' error. The court stated:
“In evaluating any impact of movant's absence from the courtroom, it is important to stress the limited nature of the proceedings missed. As the record reflects, the jury had been excused for its lunch break and movant was absent for his motion in limine being sustained by agreement. The only adverse ruling was the partial sustaining of the State's motion to limit evidence of the victim's methamphetamine use; a ruling that had no bearing on movant's theory of defense. Movant was present for all witness testimony, all proceedings in which the jury was present, the proceeding that he missed was a legal ruling at which he would not have been afforded an opportunity to speak. In addition, trial counsel for movant, although reluctantly, admitted his standard practice was to discuss the results of such pre-trial rulings with his client and that he would have done his best to communicate with his client about the matter.”
Did the Trial Court Err in Denying Howard's K.S.A. 60–1507 Motion?
On appeal, Howard contends that the trial court erred in denying him a new trial based on his forced removal from the courtroom during a motion hearing.
We first note the applicable standard of review. Howard asserts that the issue on appeal is whether his “due process rights” were violated and contends that this court has unlimited review over such questions of law. Howard fails to appreciate that he is not raising a constitutional issue on direct appeal, but is making a constitutional claim on appeal from the denial of his K.S.A. 60–1507 motion. Thus, this court applies the standard of review applicable to the denial of a movant's K.S.A. 60–1507 motion after an evidentiary hearing.
When the trial court conducts a full evidentiary hearing on a movant's K.S.A. 60–1507 motion, the trial court is required to make findings of fact and conclusions of law. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). On appeal, this court must determine whether the trial court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the trial court's conclusions of law. 285 Kan. at 355. This court must give deference to the trial court's factual findings, accepting as true the evidence and any inferences that support or tend to support the trial court's findings. The trial court's conclusions of law and its decision to grant or deny the K.S.A. 60–1507 motion are reviewed using a de novo standard. 285 Kan. at 355.
Howard contends in his brief that he is entitled to “a new trial based on the prejudicial ineffective assistance of appellate counsel .” To prove ineffective assistance of appellate counsel, a movant must show that “(1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the appellant was prejudiced to the extent that there is a reasonable probability that, but for counsel's performance, the appeal would have been successful.” See Baker v. State, 243 Kan. 1, 7, 755 P.2d 493 (1988). In this regard, appellate counsel is not required to raise issues that are weak, without merit, or would result in harmless error. See Baker, 243 Kan. at 10.
The trial court determined that although appellate counsel was deficient by failing to provide a sufficient record for this court to review the claims on direct appeal, the deficiency did not entitle Howard to a new trial.
The State concedes that appellate counsel was deficient for failing to create a sufficient record with regard to Howard's absence from the courtroom. Nevertheless, the State contends that the error was harmless—as the trial court determined. On appeal, we will assume that Howard has proved the first part of the ineffective assistance of counsel test and move to the second part of the test.
With regard to prejudice, the State asserts that Howard has failed to show he was prejudiced by counsel's performance. Howard counters that his removal from the courtroom was structural error—so the court must automatically grant him a new trial and the harmless error analysis does not apply. An examination of recent precedent involving a defendant's absence from court proceedings indicates that a harmless error analysis would be applicable to this appeal.
Howard bases his argument primarily on State v. Calderon, 270 Kan. 241, 13 P.3d 871 (2000). In Calderon, our Supreme Court emphasized the defendant's right to be present in the courtroom at each stage of trial. The court stated:
“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his or her trial. [Citation omitted.] A defendant's constitutional right to be present during criminal proceedings stems from the Sixth Amendment right to confront witnesses and the due process right to attend critical stages of a criminal proceeding in which the defendant is not actually confronting witnesses or evidence against him or her. [Citations omitted.] The due process right exists to the extent that a fair and just hearing would be thwarted by the defendant's absence, and to that extent only. [Citations omitted.] In other words, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if the defendant's presence would contribute to the fairness of the procedure. [Citation omitted.] To be ‘present’ requires that a defendant be more than just physically present. It assumes that a defendant will be informed about the proceedings so he or she can assist in the defense. [Citation omitted.] A defendant's right to be present includes a right to have trial proceedings translated into a language that he or she understands so that he or she can participate effectively in his or her own defense. [Citation omitted.]” 270 Kan. at 245.
The court also noted that in Kansas, there is statutory authority for the right to be present in the courtroom during criminal proceedings. K.S.A. 22–3405(1) provides that a defendant in a felony case “shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” 270 Kan. at 245–46.
In Calderon, a jury convicted Domingo Santiago Calderon of second-degree intentional murder. He claimed on appeal that his constitutional right to be present was violated when the trial court, before closing argument and without consulting the parties or stating a reason, instructed Calderon's translator to not translate the closing arguments for Calderon. There was no dispute that Calderon required an interpreter. On appeal, Calderon argued that even if he suffered no prejudice as a result of the lack of an interpreter during closing argument, prejudice was presumed when his fundamental right to be present was violated. The State countered that any error in not providing the interpreter was only reversible if Calderon was “hampered” in presenting his case as a result of the error. 270 Kan. at 246–47.
Our Supreme Court held that the denial of Calderon's meaningful presence during closing argument was an error which implicated the basic consideration of fairness, so that it was “not permitted to determine that it was harmless beyond a reasonable doubt even though the error might have had little, if any, likelihood of having changed the result of the trial.” 270 Kan. at 253. The court reversed Calderon's conviction and granted a new trial on this basis. 270 Kan. at 254.
En route to its holding, the Calderon court noted several cases from other jurisdictions where courts had held that the absence of an interpreter violated a defendant's due process rights, because the defendant's inability to understand the proceedings resulted in the denial of a fundamental right. 270 Kan. at 247. The court then acknowledged the United States Supreme Court case of Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), where the Court held a defective reasonable doubt instruction was a structural error, making the harmless error analysis inapplicable. 270 Kan. at 252–53. But the court also acknowledged the United States Supreme Court case, Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), where the Court indicated a constitutional error—there, the admission of a coerced confession—does not require automatic reversal of a conviction and applied a harmless error analysis. 270 Kan. at 249–50. It was the Fulminante Court that introduced the application of the harmless error analysis when there has been mere “trial error” as opposed to structural error, which requires automatic reversal. 270 Kan. at 250.
Since Calderon, we are guided by several cases where our Supreme Court considered whether the denial of defendants' right to be present at their criminal proceedings was reversible error. Most significantly, the court has recognized Calderon in each case; however, the court has applied the harmless error analysis because the error did not implicate the basic consideration of fairness to the defendants or undermine the function of their trial.
In State v. Lopez, 271 Kan. 119, 131, 22 P.3d 1040 (2001), our Supreme Court held that it was harmless error for the trial judge to question a prospective juror in chambers in the absence of the defendant, but with counsel. The questions posed to the juror involved whether he was related to or knew the defendant's family. Although the court concluded that the inquiry was error in the absence of Lopez, it held that the error was harmless because the juror denied recognizing Lopez' family, and the juror told the trial judge he would tell the judge if he changed his mind. Moreover, the juror agreed he would remain fair even if he realized he knew someone in Lopez' family. 271 Kan. at 132, 135. In applying the harmless error analysis, the court concluded that Lopez' absence did not implicate the basic consideration of fairness or undermine the function of his trial and ruled that the error was not structural. Yet, it failed to explain how it reached this conclusion. 271 Kan. at 134.
Later, in State v. Mann, 274 Kan. 670, 56 P.3d 212 (2002), the court again applied the harmless error analysis when it considered three errors made at Ahmon Mann's trial. First, the Court held it was harmless error for the trial judge to have spoken with four jurors, outside the presence of counsel or Mann, regarding the jurors' discomfort with a particular member of the audience. 274 Kan. at 680–86. The court stated that this error was not structural because it did not implicate a basic consideration of fairness or undermine the function of the trial. 274 Kan. at 683.
Second, the court ruled that it was harmless error for the trial judge and counsel to discuss the jury's request for video tape equipment outside the presence of Mann and the jury, 274 Kan. at 686. The court reasoned that the constitutional right to be present only extends to those stages that are “critical” to the outcome of the case and those at which the defendant's presence would contribute to the fairness of the procedure. For this error, the court noted Mann did not contend his presence during the conversation would have contributed to the fairness of the procedure. Mann seemed to rely on the fact that he was absent when a decision was made. Yet, the conversation between the judge and counsel occurred only to record an evidentiary matter, and no decision was made that affected the outcome of the trial.
The Court held it was harmless error for the trial judge to send the jury a note—without the presence of the defendant or counsel—asking for clarification on the jury's request for a read-back. 274 Kan. at 687–88. The court reasoned it was difficult to imagine how Mann's presence at this interaction would have changed the result of the trial, noting any misunderstanding in the communication could have been remedied when the actual read-back of the testimony was done in the presence of Mann and the jury.
Finally, in State v. Engelhardt, 280 Kan. 113, 119 P.3d 1148 (2005) the court again stated its willingness to apply a harmless error analysis when considering a defendant's right to be present at all critical stages of trial. In that case, the court held that a jury view of the crime scene was not a critical stage of trial; thus, Robert J. Engelhardt's presence at the viewing was not essential. 280 Kan. at 120–24. The court also observed that even if it was erroneous to allow the jurors to view the crime scene without Engelhardt, the error was harmless in light of the overwhelming evidence against Engelhardt. 280 Kan. at 124–25.
Turning to the present case, we note that there is no dispute that the trial court committed error when it conducted the motion hearing without Howard. The State implicitly concedes this by arguing the error was harmless. We will assume the motion hearing was a critical stage of trial at which Howard had a right to be present. Thus the question is whether the court's error was a structural error requiring reversal of his conviction or a mere trial error warranting application of the harmless error analysis.
Howard's theory of defense was that he was merely trying to stop the fight when he hit Brantley one time. Thus, Howard admitted he hit Brantley and only challenged his intent in doing so. On appeal, Howard does not explain how his testimony on this point would have changed had he been present at the motion hearing and heard the court's rulings on evidence of drugs in Brantley's system and evidence of text and voice messages from Tunnell to his ex-wife. It is difficult, if not impossible, for this court to conclude that Howard's absence from the motion hearing was anything but harmless. Even Kerns admitted the court dealt with no “evidentiary procedures” at the motion hearing, no witnesses testified, and there were no protractive legal arguments made that had not already been heard, since the arguments were basically summaries of previously written arguments.
The trial court also reasoned that Howard was absent only when a legal ruling was made, when he would not have been afforded an opportunity to speak. In State v. Rhoads, 20 Kan.App.2d 790, 794, 892 P.2d 918 (1995), this court stated that a defendant's presence is not required at an in-chambers conference involving only a question of law—as his or her presence is not essential to a fair and just determination of a substantial issue. Conversely, in reversing the conviction in Calderon, the court pointed out that the absence of an interpreter in closing argument violated a defendant's due process rights, because his or her inability to understand the proceeding results in the denial of a fundamental right. 270 Kan. at 247. Kansas courts clearly do not place in-chambers conferences involving legal issues and closing arguments on equal footing. Here, Howard has not shown he missed anything more than a legal ruling that had no effect on his testimony and theory of defense. Thus, the court's error in excluding Howard did not implicate the basic consideration of fairness to Howard or undermine the function of his trial.
As the trial court noted, the jury was not present at the hearing held in Howard's absence. In holding the defendant was denied a meaningful presence at trial, thus implicating the basic consideration of fairness, the Calderon court specifically stated:
“The United States Supreme Court has stated that it is a fundamental assumption of the adversary system that the trier of fact observes the accused throughout the trial, while the accused is either on the stand or sitting at the defense table. This assumption derives from the right to be present at trial, which in turn derives from the right to testify and rights under the Confrontation Clause. [Citation omitted.] At all stages of the proceedings, the defendant's behavior, manner, facial expressions, and emotional responses, or their absence, combine to make an overall impression on the trier of fact, an impression that can have a powerful influence on the outcome of the trial. [Citation omitted .]” 270 Kan. at 253.
The concerns present in Calderon are not present here. For example, Howard was absent from a hearing at which the jury was likewise absent and no witness testimony was heard.
There is overwhelming evidence of Howard's guilt. Howard admitted he hit Brantley in the head with the gun. Howard's only defense was that he did not recall hitting him a second time or hitting him in the mouth. The evidence discussed at the motion hearing—in Howard's absence—appears to have nothing to do with Howard's defense at trial. Thus, the error in excluding Howard from the hearing was harmless.
Lastly, Howard argues that judicial misconduct contributes to a finding that the court's error was structural. This argument fails because judicial misconduct was not an issue raised and litigated below. Generally, new legal theories may not be presented for the first time on appeal. See Wood v. Groh, 269 Kan. 420, 434, 7 P.3d 1163 (2000). This court will consider new issues only when exceptional circumstances exist. See State v. Wilkins, 267 Kan. 355, 367, 985 P.2d 690 (1999). Howard fails to argue such circumstances here.
Affirmed.