Opinion
111,021.
05-29-2015
STATE of Kansas, Appellee, v. Chatny M. ALLEN, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Chatny Allen appeals her conviction in a jury trial in Sedgwick County District Court for felony battery of a law enforcement officer—a lesser offense of the charged crime—on the grounds the district court improperly instructed the jurors on the range of offenses. The instructions failed to clearly designate each of the lesser offenses and effectively required the jury to answer an impermissible special interrogatory rather than render a general verdict. In light of Kansas Supreme Court authority governing jury instructions and requiring general verdicts in criminal cases, the error cannot be disregarded as harmless. We, therefore, reverse Allen's conviction and remand for a new trial.
Factual and Procedural Background
Given the issue, the facts underlying the charged crime needn't be recounted in detail. When the bars and restaurants close on weekend nights in Old Town, a Wichita entertainment district, things can get hectic, if not chaotic. A QuikTrip gas station and convenience store on the edge of Old Town typically closed temporarily as people left the area. As a Saturday night transitioned into Sunday morning in late July 2011, the QuikTrip was preparing to close. Allen drove up to the gas pumps. As Allen spoke on her cell phone, her two passengers went into the store. Wichita Police Officer Robert Reichenberger was working off duty as a security officer at the store, although he wore his uniform. A second off-duty officer was also working as a uniformed security officer. And several on-duty police officers were in the immediate vicinity.
For our purposes, it suffices to say the testimony at trial about what happened between Allen and Reichenberger varied remarkably. Everyone seems to agree that Reichenberger told Allen to move her car away from the gas pumps, although even the tenor of that exchange was disputed. According to Reichenberger's account, he was businesslike and professional. Allen described his manner as loud and vulgar. And there is no denying that a few minutes later Allen had been arrested. Reichenberger testified that Allen looked at him as she started her car, swerved slightly toward him, and struck him on his left side pushing him up on the right front fender. Reichenberger told the jurors his left leg was bruised and the nail on one of the fingers of his left hand was badly torn. To the extent the other officers saw what happened, they confirmed Reichenberger's account.
Allen testified that Reichenberger was verbally abusive because she was not moving away from the gas pumps fast enough to suit him. She told the jurors she started to leave but other cars left her no clear path. After her passengers returned, Allen said she again drove slowly away from the pumps. Allen testified someone then shouted, “Stop!” So she did. According to Allen, Reichenberger charged up to the driver's door, opened it, and grabbed her. She said Reichenberger then tried to yank her from the car even though she had her seatbelt on. Allen testified she did not hit Reichenberger with her car. Her companions testified that Reichenberger was never close enough to Allen's car to have been struck.
The prosecutor charged Allen with aggravated battery of a law enforcement officer for knowingly causing bodily harm to Reichenberger with a motor vehicle, a severity level 3 person felony violation of K.S.A.2011 Supp. 21–5413(d)(3), (g)(4)(A). The case went to trial in late March 2013. The district court instructed the jurors on the elements of the charged crime and the lesser offenses of battery of a law enforcement officer for recklessly causing bodily injury, a severity level 7 person felony, and of battery of a law enforcement officer for knowingly causing “physical contact” in a rude, insulting, or angry manner, a class A misdemeanor. See K.S.A.2011 Supp. 21–5413(c)(1), (2) and (g)(3)(A), (B). We discuss in detail the lesser offenses instruction and the verdict form momentarily.
During their deliberations, the jurors submitted a written question asking the difference between “recklessly caused bodily harm” and “knowingly caused physical harm”—phrases drawn from the instruction on the lesser offenses. The district court supplied a written response referring to the definitions of those terms supplied elsewhere in the instructions and otherwise advising the jurors to rely on their common knowledge.
The jury convicted Allen of the lesser offense of reckless felony battery of a law enforcement officer. The district court later sentenced Allen to a low guidelines term of 11 months in prison and granted a dispositional departure to place her on probation for 12 months. Allen has appealed.
Before turning to our legal analysis of the instructional error, we mention Allen's alternative argument on appeal. After the verdict was read, the district court polled the jurors. Rather than affirming the verdict as his own, one of the jurors said he “didn't understand it well enough to say that that was my verdict.” The district court asked the juror several questions about what he meant and whether he had voted guilty in the deliberations. The juror several times said he “just kind of went along with it.” The district court asked the jurors to return to the jury room, so the lawyers could provide their assessment of the situation. Allen's lawyer argued the district court should declare a mistrial—the same position advanced on appeal. The prosecutor argued the jurors were not irrevocably hung as much as one of them had equivocated during the poll, so they should be told to continue deliberations. Because the problem had arisen late on a Friday afternoon, the district court opted to have the jurors continue their deliberations the next Monday. The jurors reconvened and returned the same verdict. Each juror then confirmed the verdict in another poll.
On appeal, Allen submitted the district court should have declared a mistrial, meaning her conviction should be set aside and the case remanded for further proceedings. On remand, the prosecutor would then have had the option of retrying Allen. Because we are reversing based on the instructional error and remanding for a new trial, Allen would be no better off if we were to consider and grant her relief on the juror issue. The issue is, therefore, moot, and we decline to consider it. See Rodarte v. Kansas Dept. of Transportation, 30 Kan.App.2d 172, 183, 39 P.3d 675 (legal dispute moot when a ruling from the court would not affect the legal rights of the parties), rev. denied 274 Kan. 1113 (2002).
Legal Analysis
The district court endeavored to use PIK Crim. 4th 54.330 to instruct the jurors on the elements of aggravated battery of a law enforcement officer and PIK Crim. 4th 54.320 on the elements of battery of a law enforcement officer. Because the jury had a reasonable doubt about the aggravated battery charge and acquitted Allen of it, we needn't review that instruction. On remand, the not guilty verdict on that charge remains intact, so Allen may not be retried for aggravated battery of a law enforcement officer. See K.S . A.2014 Supp. 21–5110(e).
To instruct the jurors on the lesser offenses, the district court used this instruction:
“If you do not agree that the defendant is guilty of aggravated battery against a law enforcement officer, you should then consider the lesser offense of battery against a law enforcement officer.
“To establish this charge, each of the following claims must be proved:
“1. (a) The defendant recklessly caused bodily harm to Robert Reichenberger;
or
(b) That the defendant knowingly caused physical contact with Robert 2. Reichenberger in a rude, insulting or angry manner.
“2. Robert Reichenberger was a uniformed or properly identified city law enforcement officer.
“3. Robert Reichenberger was engaged in the performance of his duty.
“4. That this act occurred on or about the 24th day of July, 2011, in Sedgwick County, Kansas.
“Should you find the defendant guilty of this offense, you must specify which letter section in paragraph 1 is your verdict: (a) or (b).”
In turn, the verdict form the district court submitted to the jury looked like this:
“VERDICT FORM
“We, the jury, find the defendant guilty of Aggravated Battery Against a Law Enforcement Officer.
_________________________
Presiding Juror
Or
“We, the jury, find the defendant guilty of Battery Against a Law Enforcement Officer, (select one choice below)
? As defined in Instruction 4, paragraph 1(a)
? As defined in Instruction 4, paragraph 1(b)
_________________________
Presiding Juror
Or
“We, the jury, find the defendant not guilty.
_________________________
Presiding Juror”
The presiding juror marked the box designated for paragraph 1(a) of Instruction 4 indicating a finding that Allen had recklessly caused bodily harm to Reichenberger—the factual predicate for the lesser felony offense.
In fashioning the lesser included offense instruction, we believe the district court and the lawyers misconstrued how to use PIK Crim. 4th 54.320. The PIK instruction does not designate the subsections in element 1 as (a) and (b) but simply separates them with the word “or.” Likewise, the PIK instruction does not include the last paragraph directing the jurors to complete the verdict form by checking a box corresponding to subsection (a) or subsection (b). We believe the authors intended PIK Crim. 4th 54.320 to be used when the evidence in a given case could support a conviction for only one or the other subsection as a lesser offense of aggravated battery of a law enforcement officer. See K.S.A.2014 Supp. 22–3414(3) (district court “shall instruct” on a lesser offense if “some evidence” would “reasonably justify” conviction for that offense); State v. Maestas, 298 Kan. 765, Syl. ¶ 6, 316 P.3d 724 (2014) (duty to instruct on lesser offense even if evidence is “weak or inconclusive”). If the evidence could support either lesser offense depending on how the jurors resolve conflicting testimony-as was true here-we presume the authors intended that the elements of each lesser offense be listed in a separate instruction and the jurors be further directed to consider the lesser felony before considering the still lesser misdemeanor. As we discuss, that would conform to settled law.
In short, the district court and the parties appear to have misconstrued the “or” separating the subsections of element 1 to be part of the substantive text of PIK Crim. 4th 54.320 rather than a parenthetical directive on its use. They, therefore, created a single instruction mashing together a pair of lesser offenses that the jurors actually should have considered sequentially in separate elements instructions. To accommodate that misreading of the PIK instruction, the district court then fashioned a verdict form that functions as a prohibited special verdict or interrogatory.
Neither the district court's instruction nor its verdict form delineates two distinct lesser offenses for the jurors' consideration—the felony for recklessly causing bodily harm and the misdemeanor for intentionally causing physical contact in a rude, insulting, or angry manner. Based on the instruction and the verdict form, the jurors reasonably would have viewed the different facts as alternative proofs of the same lesser offense. But that is both misleading and legally incorrect.
Misdemeanor battery is a lesser degree of the same crime as the felony based on recklessly causing bodily harm, and both are lesser degrees of the crime defined as aggravated battery of a law enforcement officer. See State v. Simmons, 295 Kan. 171, 175, 283 P.3d 212 (2012) (simply battery lesser degree of intentional aggravated battery); State v. McCarley, 287 Kan. 167, 177–78, 195 P.3d 230 (2008) (reckless aggravated battery lesser degree of same crime as intentional aggravated battery relying, in part, on severity level of the offenses). As provided in K.S.A.2014 Supp. 21–5109(b)(1), lesser degrees of the same offense are considered lesser included crimes.
The failure to explicitly identify for and instruct the jurors on each lesser included crime is contrary to established statutory and common law in Kansas. Under K.S.A.2014 Supp. 22–3414(3), the district court “shall instruct the jury as to the crime charged and any such lesser included crime.” Here, the district court did not identify and distinctly instruct on each lesser crime of the charged offense of intentional aggravated battery of a law enforcement officer—contrary to the plain requirement of the statute. Rather, incorrectly cribbing PIK Crim. 4th 54.320, the district court lumped the lesser offenses together in a single indistinguishable legal hodgepodge.
The Kansas Supreme Court has long recognized jurors must be clearly instructed on each appropriate lesser included crime and must be told to consider them in descending order of severity. State v. Trujillo, 225 Kan. 320, 324, 590 P.2d 1027 (1979). The court explained: “As a matter of practice a trial court should instruct on lesser included offenses in the order of severity beginning with the offense with the most severe penalty.” 225 Kan. at 324. That approach is necessary to “promot[e] an orderly method of considering the possible verdicts.” 225 Kan. at 324. The court has recently reiterated the need to instruct jurors that way. See State v. Parker, 301 Kan. 556, 561–63, 344 P.3d 363 (2015) ; State v. Adams, 292 Kan. 60, 77, 253 P.3d 5 (2011).
The problem in this case was compounded in several respects. First, the jurors were not given PIK Crim. 4th 68.080 that identifies the principal offense, here aggravated battery of a law enforcement officer, and then states each of the lesser included offenses. The PIK instruction also informs the jurors if they have a reasonable doubt as to which of two offenses a defendant is guilty, they should “convict[ ] of the lesser offense only.” PIK Crim. 4th 68.080. In Parker, the court emphasized the importance of that consideration in how jurors properly should consider lesser included offenses. 301 Kan. at 561–63 (analyzing issue in context of defense claim that prosecutor's closing argument mischaracterized principle). At the point the jurors actively considered the lesser offenses against Allen, the omission of that guidance compromised the deliberations. Cf. Trujilo, 225 Kan. at 324 (no prejudice in failure to properly order lesser included offenses because defendant convicted of charged crime).
Consistent with those directives, the district court should have identified each of the lesser offenses and provided a separate elements instruction for each with appropriate transitional language comparable to the opening paragraph of the instruction it did give.
Second, in combination with the undifferentiated instruction on lesser offenses, the verdict form amounted to an impermissible special interrogatory regarding those offenses. The verdict form effectively asked the jury to indicate whether it found the facts to be that Allen recklessly caused bodily injury to Reichengerger or whether it found she intentionally caused physical contact with him in a rude, insolent, or angry manner. Based on that indication on the verdict form, the district court then entered judgment against Allen for the particular lesser offense. The jurors did not functionally render a general verdict of guilty with respect to that offense. See State v. Brown, 298 Kan. 1040, 1047, 318 P.3d 1005 (2014) (special verdict requires jury to find facts and leaves to district court legal conclusions based on those findings). Indeed, as we have explained, the jurors were never even informed there were two lesser offenses to the charged crime.
Again, the Kansas Supreme Court has long disapproved the use of special interrogatories in criminal cases, requiring instead general verdicts of guilty or not guilty. Brown, 298 Kan. at 1046 (reiterating rule that “use of special questions is prohibited in criminal trials”); State v. McClanahan, 212 Kan. 208, 213–14, 510 P.2d 153 (1973) ; State v. Osburn, 211 Kan. 248, Syl. ¶ 5, 505 P.2d 742 (1973) (“Special questions may not be submitted to the jury for answer in a criminal prosecution.”). The use of special interrogatories or verdicts inhibits the accepted power of criminal juries to exercise near unfettered latitude in carrying out their duties. Last year, the court borrowed from Osburn to explain that scrupulously guarding a criminal defendant's right to a general verdict “ ‘preserve[s] the time honored power of the jury to return a verdict in a criminal prosecution in the teeth of the law and the facts.’ “ Brown, 298 Kan. at 1046 (quoting Osburn, 211 Kan. at 255 ). Accordingly, Osburn held and Brown affirmed that “ ‘special questions may not be submitted to the jury for answer in a criminal prosecution’ “ and, in turn, generally “ ‘the only proper verdict to be submitted in a criminal prosecution are “guilty” or “not guilty” of the charges.’ “ Brown, 298 Kan. at 1046 (quoting Osburn, 211 Kan. at 255–56 ). The Kansas Supreme Court recently pointed out that although jurors should not be instructed on their power to render a verdict outside the law and the evidence, the language of the instructions actually given them in a criminal case cannot grossly impair their ability to do so. State v. Smith–Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014).
In sum, the lesser offense instruction and the verdict form were faulty. We turn to an assessment of the problem and the degree of prejudice to Allen. The sequential steps we take in analyzing a claimed instructional error are: “(1) reviewability considering preservation of the issue at trial and jurisdiction; (2) legal appropriateness of the instruction; (3) factual support in the evidence for the instruction; and (4) harmlessness of any actual error.” State v. Franco, 49 Kan.App.2d 924, Syl. ¶ 1, 319 P .3d 551 (2014) ; see State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Allen did not object to the instruction or the verdict form in the district court. A defendant's failure to raise or preserve a challenge to a jury instruction or the verdict form in the district court does not prevent appellate review but imposes the more demanding burden of showing clear error as part of the final analytical step. K.S.A.2014 Supp. 22–3414(3) ; State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012) (absent trial objection, verdict form reviewed on appeal for clear error); Franco, 49 Kan.App.2d at 927–28.
Here, Allen was legally and factually entitled to proper instructions on the lesser included offenses of reckless felony battery of a law enforcement officer and intentional misdemeanor battery of a law enforcement officer. As we have discussed, those are lesser offenses of the charged crime of aggravated battery of a law enforcement officer. So instructing the jurors on them would be legally appropriate. Whether Reichenberger's injuries constituted bodily harm was for the jurors to determine. See State v. Simmons, 45 Kan.App.2d 491, Syl. ¶ 6, 249 P.3d 15 (2011), aff'd 295 Kan. 171, 283 P.3d 212 (2012). And how he suffered those injuries was disputed in the evidence. Reichenberger testified Allen's car hit him. But he could have been hurt trying to physically extract Allen from her car, as her testimony suggested. Both lesser offenses were factually supported in the conflicting testimony. The lesser offense instruction and the verdict form were erroneous in that they did not conform to the legal principles we have outlined.
In determining prejudice, we apply the clearly erroneous standard, given the lack of objections in the district court. See K.S.A.2014 Supp. 22–3414(3) ; Burnett, 293 Kan. at 847 (verdict form); accord State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P .3d 195 (2012) (jury instruction reviewed on appeal for clear error absent objection in the district court). The Williams court has phrased the clearly erroneous test as “whether [the appellate court] is firmly convinced that the jury would have reached a different verdict had the instructional error not occurred.” 295 Kan. 506, Syl. ¶ 5.
Given the record in this case, we conclude Allen has met that stringent standard. The evidence bearing on the relevant circumstances was sharply conflicting, with witness accounts that could have supported the charged crime of aggravated battery of a law enforcement officer on which the jury acquitted, a verdict of not guilty on all charges, or guilty of either of the lesser offenses. The jurors' question to the district court during deliberations bolsters Allen's assertion of clear error. The question indicates the jurors were struggling to understand the relationship between recklessly causing bodily harm and knowingly causing physical contact—the only factual elements that differentiated the two lesser offenses. Had the jurors been properly advised with sequential elements instructions and an instruction drawn from PIK Crim. 4th 68.080, they would have better understood that relationship as contemplated in the caselaw. Those considerations cannot be separated from the substantial defect in the verdict form that dispensed with a general verdict on the lesser offenses and required only that the jury report a factual finding. Here, that finding bore on the very fact issue about which they had sought guidance in their question.
Taking those circumstances together, we are firmly of the view the jury would have come to a different result in the absence of the error in the instruction and the related defect in the verdict form. We, therefore, reverse Allen's conviction and remand for a new trial or other proceedings in the district court consistent with this decision.
Reversed and remanded with directions.