Opinion
No. 108,340.
2013-11-8
STATE of Kansas, Appellee, v. Joshua Daniel ALLISON, Appellant.
Appeal from Montgomery District Court; Frederick William Cullins, Judge. John J. Gillett, of Chanute, for appellant. David Maslen, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Montgomery District Court; Frederick William Cullins, Judge.
John J. Gillett, of Chanute, for appellant. David Maslen, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Joshua Daniel Allison was convicted of two counts of aggravated robbery in connection with the robberies of Bailey's Corner store in Coffeyville and the Casey's General Store in Independence. In this appeal he contends: (1) the trial court erred in denying his motion to dismiss based on a violation of his statutory speedy trial rights; (2) the trial court erred in instructing the jury regarding the admission of audiotape evidence and in its response to a jury question during deliberations; (3) his trial counsel was ineffective; (4) the evidence was insufficient to convict him of these crimes; (5) the prosecutor engaged in misconduct during closing argument; and (6) he is entitled to a new trial based upon the accumulation of errors during the trial.
Because one of Allison's claimed trial errors was the lack of substantial evidence to support his convictions for these robberies, we will examine the evidence in the light favoring the State, the prevailing party at trial. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012).
Facts
Less than half an hour before the Bailey's Corner robbery, Allison was seen coming into the store and then leaving. The next evening, after the Bailey's Corner robbery, the Casey's General Store in Independence was robbed in a similar manner. Both robberies were accomplished by brandishing a handgun at the store clerk. Both robberies were committed by a person of the same stature, build, and wearing the same clothing. In both cases, the robber wore jeans with a distinctive patch on the left leg.
Cole Price was an early suspect. A detective searched Price's pickup truck and found Allison's photo identification in the console of the vehicle. Price informed the police that he was with Allison on the night of the first robbery. Allison had asked Price to buy some alcohol for him because Allison was not yet 21 years of age. Price did so, riding to the liquor store in a different truck driven by Allison. The truck matched the description of a truck owned by Bobbi Phillips. Phillips told the police she loaned the truck to Allison on the nights of the robberies.
After speaking with police, Phillips received text messages calling her a “snitch” and threatening her. Phillips was confronted by several women. Adam Godinez called his girlfriend, Amber Handshumaker, and told her to “whoop this bitch's ass,” referring to Phillips. Handshumaker arrived and attacked Phillips. When the fight broke up, Julia Bell, Allison's girlfriend, told Phillips: “Bitch, I'm gonna get you next....You're sending the love of my life to prison.”
Julia lived with her mother, Lori Bell. Julia was arrested for aggravated intimidation of Phillips, a witness. After Julia's arrest, Lori found a backpack and a hoodie among her daughter's belongings. Inside the backpack Lori found a pillowcase and a bank bag. Lori's boyfriend, who had previously worked at Casey's, told her that the bag looked like a Casey's money bag. Lori turned these items over to the police. After Julia was released from jail, she told Lori that Allison confessed to robbing a store.
Allison had attempted to dissuade Julia from testifying. But at trial, Julia testified that Allison told her that he had borrowed Phillips' truck and robbed Bailey's Corner and that Godinez had helped him with the robbery. Julia testified that Allison also borrowed Phillips' truck the night of the Casey's robbery. Julia admitted that the backpack Lori found belonged to Allison.
In a recorded phone call from jail, Allison asks Donald Wright to tell law enforcement that Wright lied about Allison's involvement in the robberies. Wright originally did so because Allison and Godinez were his good friends, and Wright had received threats and knew that Phillips “got jumped” after she spoke with the police.
But Wright changed his mind and testified at trial. He testified that Allison told him that he and Godinez robbed Bailey's Corner, using a borrowed handgun and Phillips' borrowed truck. Allison described for Wright the details of the robbery.
Text messages from Allison confirmed that he also was involved in the Casey's robbery. Allison's and Godinez' cell phone records placed them in the areas and at the times of the two robberies.
Allison was charged with two counts of aggravated robbery. In a separate case, he was charged with two counts of driving while suspended. The two cases were consolidated for trial, and Allison was convicted on all charges. He now appeals his convictions in the aggravated robbery case but not his convictions in the separate case for driving while suspended.
Speedy Trial
Allison was arraigned on August 12, 2010. The first day of trial was not held until January 9, 2012. Allison remained in custody the entire time. On January 4, 2012, Allison moved to dismiss for denial of his statutory right to a speedy trial. The district court denied Allison's motion, and the case went to trial. Allison contends that the district court erred in denying this motion.
We have unlimited review over the district court's legal rulings on this issue, including the ultimate conclusion regarding whether the statute was violated, but we defer to the district court on any factual determinations and review them by examining the record for supporting substantial evidence. See State v. Vaughn, 288 Kan. 140, Syl. ¶ 1, 200 P.3d 446 (2009).
The State has the obligation to ensure that a defendant is provided a speedy trial within the statutory limits set out in K.S.A.2012 Supp. 22–3402. The statutory time for a speedy trial commences on the date of arraignment. A defendant has no duty to take any affirmative action to see that his or her right to a speedy trial is honored. State v. Thomas, 291 Kan. 676, 695, 246 P.3d 678 (2011). The statutory right to a speedy trial applies to defendants who are charged with a crime and held to answer on an appearance bond or charged with a crime and held in jail solely by reason of the subject criminal charge.K.S.A.2012 Supp. 22–3402(a) and (b). K.S.A.2012 Supp. 22–3402(a) provides, in relevant part:
“(a) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant or a continuance shall be ordered by the court under subsection (e).” (Emphasis added.)
The statutory right to a speedy trial does not apply to a criminal defendant who is held in custody for any reason other than the subject criminal charge. State v. Mann, 274 Kan. 670, 700, 56 P.3d 212 (2002); State v. Mathenia, 262 Kan. 890, 900, 942 P.2d 624 (1997); State v. Goss, 245 Kan. 189, 191, 777 P.2d 781 (1989).
From arraignment to trial in this case, Allison was also being held on driving while suspended charges in his companion case. While the two cases were consolidated for trial, this did not affect the distinction between the two cases for speedy trial purposes. The cases continued to be treated as separate cases after trial for purposes of sentencing and any appeal. Allison has appealed from one but not the other.
At no time prior to trial was Allison being held solely by reason of the two aggravated robbery charges. K.S.A.2012 Supp. 22–3402(a). Therefore, Allison's statutory right to a speedy trial does not apply here.
Jury Instructions
Allison argues that the district court erred in not properly instructing the jury, apparently in the form of a limiting instruction, regarding tape or digital recordings admitted at trial. The multi-step protocol for our analysis of a jury instruction issue is found in State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012), and in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
“To fully preserve a claim that the trial court erred in failing to give a particular jury instruction, the defendant must distinctly state an objection to the omission before the jury retires to consider its verdict. [Citations omitted.]” State v. Stevenson, 297 Kan. 49, 56, 298 P.3d 303 (2013). Allison failed to do so. Thus, we must determine if the lack of an instruction was clearly erroneous; that is, whether an instruction was legally and factually required and, if so, whether we are firmly convinced that the jury would have reached a different verdict if the instruction error had not occurred. See State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013).
In State v. Kraus, 271 Kan. 810, 812–13, 26 P.3d 636 (2001), our Supreme Court held that the use of a transcript prepared from a recording to aid juror comprehension of the recording is permissible if certain requirements are satisfied. One of those requirements is that the trial court should instruct the jury “that the audiotape is not evidence and that the evidence is the audio recording itself.” 271 Kan. at 814. First, we note that this requirement from Kraus is an obvious misstatement. It makes no sense to tell the jury that the audiotape is not evidence but the audio recording is. The Supreme Court apparently meant to say that the transcript of the recording is not evidence but the audio recording is. But here, we have no indication in the record that any transcripts of the audio recordings were used to aid the jurors in understanding what was said in the audio recordings. Thus, no limiting instruction was needed and none was given. This claim of error fails.
Responding to Juror Questions
Allison asserts that the trial court erred “in not notifying the Defendant and not having the Defendant present when it responded to the jury's request for a playing of the tape of the telephone conversation under K.S.A. 22–3420.” 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.”
We have unlimited review over this issue. State v. Myers, 255 Kan. 3, 3, 872 P.2d 236 (1994).
We have nothing here to review. Allison conceded in his brief and in oral argument that there is no record of the jury asking a question during deliberations and the court answering it outside Allison's presence. The party claiming an error has the burden of designating a record that affirmatively shows prejudicial error. State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012). Allison fails to meet this burden.
Ineffective Assistance of Counsel
For the first time on appeal, Allison argues that his trial counsel was ineffective. As a general rule, appellate courts will not consider a claim of ineffective assistance of counsel when it is raised for the first time on appeal. Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009). However, in State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986), our Supreme Court established alternatives for handling such a claim raised for the first time on appeal. We can decline to rule and let the defendant pursue relief under K.S.A. 60–1507; we can under extremely rare circumstances consider the matter ourselves on appeal; or we can remand to the district court for an evidentiary hearing on the issue.
To warrant a remand to the district court for a hearing, appellate counsel must first conduct an independent inquiry and investigation into the allegation of ineffective assistance of counsel apart from merely reading the record. 239 Kan. at 120–21. Appellate counsel has not done so. In fact, appellate counsel does not seek such a remand and argued before us that a remand for a Van Cleave hearing would not be necessary because counsel's inadequacy is clear from the record.
Another option is for us to consider the matter for the first time on appeal. Instances warranting such consideration for the first time on appeal are “extremely rare.” Rowland, 289 Kan. at 1084–85;Van Cleave, 239 Kan. at 119–21. This does not appear to be such a case. Thus, we decline to rule on the merits of the claim and leave it to Allison to pursue relief before the district court pursuant to K.S.A. 60–1507.
Sufficiency of the Evidence
Allison argues the State failed to present sufficient evidence to support his convictions. Relying on State v. Hendrix, 188 Kan. 558, 566, 363 P.2d 522 (1961), he concludes that “the prosecution did not exclude every reasonable hypothesis.”
For Allison to succeed in his challenge to the sufficiency of the evidence we would have to reweigh the evidence. In determining whether there is sufficient evidence to support a conviction, we generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases in which the testimony supporting a conviction is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. I, 5–6, 660 P.2d 945 (1983).
Cases since Hendrix explain that a verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). A conviction of even the gravest offense can be based entirely on circumstantial evidence. Ward, 292 Kan. at 581. Viewed in the proper light, and applying the post-Hendrix analysis from later Supreme Court cases, there was ample evidence to support Allison's convictions.
Prosecutorial Misconduct
Allison argues that the prosecutor committed reversible prosecutorial misconduct when he (1) solicited testimony from Wright about Allison's nickname of “Nasty Thug”; (2) solicited testimony from Wright about someone trying to break into this house a week before the trial; and (3) referred to Allison and his acquaintances as “thug buddies” in closing argument.
Allison did not object to Wright's testimony regarding Allison's nickname or to Wright's testimony that someone tried to break into his house prior to trial. K.S.A. 60–404 states: “A verdict ... shall not be set aside, nor shall the judgment ... based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” In enforcing this statutory mandate, Kansas courts have long held that “ ‘evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial,” ’ such that the trial court has an opportunity to rule on the objection. State v. McCaslin, 291 Kan. 697, 706, 245 P.3d 1030 (2011). A contemporaneous objection must be made to all evidentiary claims—including questions posed by a prosecutor and response to those questions—to preserve the issue for appellate review. State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).
Because no contemporaneous objection was made to Wright's testimony, the issues about Allison's nickname and someone breaking into Wright's house have not been preserved for appeal.
With respect to the prosecutor's use of the phrase “thug buddies” during closing argument, we typically first determine whether the prosecutor's comments were outside the wide latitude the prosecutor is allowed in discussing the evidence. If they were, then we determine whether the comments prejudiced the jury and denied the defendant a fair trial. In making this determination, we consider (1) whether the misconduct was gross and flagrant; (2) whether the misconduct was motivated by ill will on behalf of the prosecutor; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. State v. Bridges, 297 Kan. –––, 306 P.3d 244, 260 (2013). Finally, no error at trial is grounds for granting a new trial or setting aside a verdict unless it appears “inconsistent with substantial justice.” K.S.A. 60–261.
The nicknames and street names of the various members of Allison's social group were introduced into evidence to make sense of the calls, texts, and correspondence that were introduced into evidence. In the State's initial closing, the prosecutor did not refer to any of the group's members by their street names nor did the prosecutor use the term “thug buddies.” But defense counsel in closing attacked the credibility of the State's various witnesses, referring to the group as a whole as “little thuglings” and “gangsterettes.” He observed:
“[I]f you're younger, you know what street cred means. It means what people think of you, what people believe or what they hear about you. And you want to try and have as tough—because these little ‘gangsterettes' are all wanting to be as tough and as macho of people as they possibly can be.”
In rebuttal, the State pointed out that Allison and Godinez were in frequent communication through telephone calls and text messages but not during the times of the robberies because they were together and did not need to exchange calls or texts. The prosecutor observed:
“Think about that. If you're away from somebody, you call them and text them because you're their ‘thug buddy’ or whatever—I can't remember his cute little phrase—you call and text them back and forth.... But when they are together, according to the witnesses, there's no calls.
“Instruction No. 6 says, You have the right to use common sense and common knowledge to make a decision.
“Why do two people who are thug buddies, that hang out together all the time, that are texting and calling each other all the time, not do it? Because they're together. And when are they together? During the time of the robberies.”
Skipping to the second step in the analysis, Allison fails to show that he was prejudiced by the prosecutor's off-hand paraphrasing of defense counsel's characterization of Allison's circle of friends. The prosecutor's comments were not gross and flagrant and did not show ill will on the prosecutor's part. The statement was consistent with the nicknames and street names used by witnesses throughout the trial. There is no likelihood that the result of the trial would have been different if the prosecutor had not used this phrase.
Cumulative Error
Cumulative error requires reversal of a conviction “when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” McCaslin, 291 Kan. at 732. In a cumulative error analysis, this court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the outcome of the trial is such that collectively the errors cannot be determined to be harmless. State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).
We have already determined that the use of the phrase “thug buddies” in the State's rebuttal closing argument did not affect the outcome of the trial. There certainly were no arguably harmless errors to accumulate with respect to Allison's other claims. The notion of cumulative error simply does not apply here.
Affirmed.