Opinion
No. 110,710.
2014-12-19
STATE of Kansas, Appellee, v. Gilbert C. ALVAREZ, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gilbert C. Alvarez appeals his conviction for criminal possession of a firearm, which was illegal based on his previous felony conviction. He argues that the gun found on him shouldn't be considered a firearm because it had a faulty firing pin and couldn't have been fired.
But the statute defining “firearm” provides that a weapon is a firearm if it either was designed to propel a projectile or is currently able to do so. No evidence suggests that this gun was designed to have a faulty firing pin and thus be incapable of firing a shot. Accordingly, it was a firearm, and the district court correctly ruled that evidence about the operability of the gun wasn't relevant.
Alvarez points on appeal to two trial errors, but neither warrants reversal. The district court erred in not giving a culpable-mental-state instruction for criminal possession of a firearm, but the error was harmless because overwhelming evidence showed that Alvarez possessed the firearm knowingly or intentionally. The district court also erred in giving a written response to a jury question with the defendant's express waiver of his right to be present when the jury received that answer, violating Alvarez' right to be present for trial under the Sixth Amendment. But the error was also harmless because there was strong evidence against Alvarez and because he didn't challenge the content of the district court's written response. And even though the court made two errors, the cumulative effect of these errors does not warrant a new trial: The errors bore no relationship to each other, and any prejudicial effect was overcome by the strong evidence against Alvarez. We therefore affirm the district court's judgment.
Factual and Procedural Background
Gilbert C. Alvarez had been on drugs for 5 straight days when he went to the Shot Time bar in Wichita on December 5, 2012. Alvarez later testified that he had entered the bar wearing a coat and had managed to put on someone else's coat with a gun in the pocket while inside the bar. He said that when he had stuck his hand in the coat pocket and felt the gun, it had “freaked [him] out,” and he had taken it out of his pocket to find out where it had come from. He said that because he had known he didn't bring a handgun into the bar and because his recent drug use had made him paranoid, he had asked a female patron if she was trying to kill him. He initially told the court that while he was in the bar, he had tried to figure out who the coat belonged to, but he later said that he had not realized he had the wrong coat until after he had been arrested.
Eric Stilwell, who was at the bar that night, provided a different version of events. He said that Alvarez had walked in the door holding a gun in his hand and that he had immediately approached Alvarez and had gotten him to leave. Stilwell also testified that he had consumed two beers that night, in the hour before Alvarez entered the bar.
The police arrived at the bar after someone reported a suspicious character with a weapon. Alvarez had left on foot, and they approached him about a block from the bar. They immediately noticed that he had a knife in his back pocket, and when handcuffing him, they also found a handgun in the pocket of the coat he was wearing. Because Alvarez had previously been convicted of a felony, the State charged Alvarez with criminal possession of a firearm.
Before his trial, the State filed a motion in limine seeking to prevent Alvarez' attorney from introducing expert testimony or other evidence that the handgun found in his pocket had a broken firing pin and was not operational. Alvarez' attorney objected, arguing that granting the motion would prevent Alvarez from presenting a jury-nullification defense, meaning that Alvarez would not be able to ask the jury to choose not to convict him even though he was guilty as charged. She renewed the objection at trial and proffered that an expert witness could testify that the gun wasn't operational. The judge granted the motion in limine, stating that the statute defining criminal possession of a firearm did not require that the firearm be operational and that he wasn't sure jury nullification was a proper defense.
At trial, the parties stipulated that Alvarez had a prior felony conviction within the preceding 10 years. Officer Chad Spaulding, a police officer with 9 years of experience and training on how to identify firearms, testified that the object the police found in Alvarez' coat pocket was a firearm designed to fire a projectile by force. In addition, some evidence that the weapon wasn't operational was inadvertently presented to the jury. The handgun was admitted into evidence for the jury to view during deliberations, and the evidence tag on the handgun noted that it had a “broken firing pin.” Also, before closing arguments, the defendant interrupted the proceedings and said in front of the jury, “Your Honor, I can't go through with it because you all withholding evidence with the jury ... [Y]ou know ... the fire pin is broken.”
During jury deliberations, the jury sent a question to the court asking for the legal definition of a firearm. The court discussed the question with counsel in chambers and then gave a summary of their discussion and explained its answer in the presence of the defendant in open court. The court sent a written answer to the jury. The answer provided the statutory definition of a firearm found at K.S.A.2013 Supp. 21–5111(m)–that a firearm is “any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion.”
The jury found Alvarez guilty of criminal possession of a firearm, and the district court imposed a 19–month prison sentence. Alvarez has appealed to this court.
Analysis
I. The District Court Did Not Violate Alvarez' Right to a Fair Trial When It Excluded Evidence that the Handgun Was Inoperable.
Alvarez argues that the district court should have denied the State's motion in limine and admitted evidence that the handgun was inoperable. He claims that without the evidence, he was denied his right to present the theory of his defense-that the handgun was not a firearm.
Defendants are entitled to present their defenses, and a defendant's fundamental right to a fair trial is violated if the district court excludes evidence that is integral to his or her theory. State v. Gaither, 283 Kan. 671, 689, 156 P.3d 602 (2007). “ ‘The exclusion of relevant, admissible, and noncumulative evidence, which is an integral part of the theory of defense, violates the defendant's fundamental right to a fair trial.’ “ 283 Kan. at 689 (quoting State v. Baker, 281 Kan. 997, 1008, 135 P.3d 1098 [2006] ). But the right to present a defense is limited by the statutory rules of evidence and the caselaw interpreting those rules. 283 Kan. at 689.
A district court may grant a motion in limine when (1) the evidence in question will be inadmissible at a trial and (2) a pretrial ruling is justified as opposed to a ruling during trial. State v. Shadden, 290 Kan. 803, 816, 235 P.3d 436 (2010). When reviewing the first factor—admissibility—an appellate court applies a multistep analysis. 290 Kan. at 817. It first considers whether the evidence is relevant—meaning it has a tendency to prove a material fact—by looking at whether it is material and probative. State v. Marks, 297 Kan. 131, 142, 298 P.3d 1102 (2013).
Before the trial court, Alvarez argued that he wanted to admit evidence that the handgun was inoperable to encourage jury nullification; on appeal, he says it should have been admitted to show the handgun was not a firearm. He is arguably raising a new issue on appeal, which is generally not permitted, but because the district court based its decision to exclude the evidence in part on the fact that it considered the handgun a firearm, we will consider his argument. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014).
As for jury nullification, however, Alvarez has not raised that claim on appeal, and we therefore consider that issue waived and abandoned. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). Even if it had not been waived, the jury saw and heard evidence showing that the gun was inoperable. The evidence tag on the handgun noted that it had a “broken firing pin,” and Alvarez said as much in open court. The jury appeared to have understood that the broken firing pin rendered the handgun inoperable because it asked the court what qualified as a firearm.
Under K.S.A.2013 Supp. 21–5111(m), a “firearm” is “any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion.” Under the plain language of the statute, a weapon is a firearm in two circumstances—if it was either designed to or currently has the capacity to propel a projectile. Both parties agree that the handgun at issue here did not have the capacity to propel projectiles when Alvarez had possession of it. Alvarez argues on appeal that he should have been able to argue as a defense that the handgun was also not designed to propel projectiles because it was in such disrepair that it had essentially been redesigned.
When interpreting K.S.A.2013 Supp. 21–511 l(m), this court should first determine the legislature's intent through the statute's language, by giving words their ordinary meaning. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014); Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013). Only if the language is unclear should it use canons of construction, legislative history, or other background considerations to determine what the statute means. 296 Kan. at 918.
Our Supreme Court has previously said that the definition of “firearm” includes inoperable weapons that were designed to fire projectiles. See State v. Pelzer, 230 Kan. 780, 782, 640 P.2d 1261 (1982). In Pelzer, the court interpreted the caselaw definition of “firearm” from State v. Davis, 227 Kan. 174, 177–78, 605 P.2d 572 (1980), which is nearly identical to the statutory definition codified at K.S.A.2013 Supp. 21–511 l(m). 230 Kan. at 781. The caselaw definition provided that a “firearm” was an object having the “design or capacity to propel a projectile by force of an explosion, gas or other combustion.” Davis, 227 Kan. at 177. The current statutory definition doesn't include weapons that propel projectiles by force of gas, but that doesn't affect the analysis here because the parties don't contend that the weapon in Alvarez' possession operated through the expansion of compressed gas. See K.S.A.2013 Supp. 21–5111(m); State v. Craddick, 49 Kan.App.2d 580, 585, 311 P.3d 1157 (2013).
The Pelzer court determined that where a statute required mandatory minimum sentences for crimes committed with firearms, the mandatory minimum sentences applied when the firearm used in the crime was inoperable. 230 Kan. at 782. The court held that a weapon that was designed to propel a projectile was not excluded from the definition of “firearm” when it was no longer able to propel a projectile: “Any handgun which is designed to propel a projectile is a firearm. Any present disrepair which might render it inoperable does not make it any less a firearm.” 230 Kan. at 782.
Alvarez makes no argument that the handgun at issue here was not designed to propel projectiles, only that it should be considered to have been redesigned not to project them. But the mere failure of one part of a designed object through damage or disrepair is not a redesign. To “design” means to “create ... for a particular purpose or effect.” See American Heritage Dictionary 491 (5th ed.2011) (defining “design”). No evidence suggests that the firing pin no longer works because someone intended to make this gun inoperable. See Pelzer, 230 Kan. at 782 (“Any present disrepair which might render it inoperable does not make it any less a firearm.”).
Accordingly, evidence that the firearm didn't work was not relevant to whether the handgun was a firearm under K.S.A.2013 Supp. 21–5111(m) and was therefore properly excluded with the motion in limine. See State v. Gaither, 283 Kan. 671, 689, 156 P.3d 602 (2007); State v. Baker, 281 Kan. 997, 1008–09, 135 P.3d 1098 (2006) (excluding testimony that the victim in a murder case had been on suicide watch 3 years before his death did not deny the defendant the right to present a suicide defense because the evidence was too remote to be relevant to the defense).
We should note that evidence that the firing pin didn't work might have been relevant under one theory not argued on appeal by Alvarez. As we've already noted, a weapon can qualify as a firearm in two different ways—it must either be designed to fire a projectile or be capable of doing so. Evidence that the firing pin didn't work would negate that second option. The court's initial instructions to the jury didn't define the term “firearm,” but the court answered the jury's request for a definition by providing an answer that included both options: “A ‘firearm’ is any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion.”
Under that instruction, evidence that the firing pin didn't work would have been relevant to disprove one of two ways the jury could find the weapon to be a firearm. Alvarez did not argue in the trial court that his evidence should have been admitted for this purpose. Nor does he make that argument on appeal. Rather, his argument is that this evidence would have shown that the weapon was not a firearm at all based on his claim that the weapon was “redesigned” not to fire. And that would not be a defense on the facts of this case.
Even if the evidence should have been admitted (to negate the capacity-to-fire method for finding a weapon to be a firearm), the failure to allow that evidence would be harmless error. The weapon in this case still was a firearm because it was designed to fire a projectile.
II. The District Court's Failure to Give a Culpable–Mental–State Instruction Was Harmless Error.
Alvarez' next argument is that the district court should have read the jury a culpable-mental-state instruction. On appeal, Alvarez discusses pattern instruction 52.010, which says: “The State must prove that the defendant (committed the crime)( insert defendant's act that is the element of the crime which requires a particular culpable mental state) insert one of the following: intentionally, or knowingly, or recklessly.” PIK Crim. 4th 52.010. It then tells the court to define the particular mental state appropriate for the crime charged—intentionally, knowingly, or recklessly. The State argues that this court does not even need to consider the merits of this issue because Alvarez abandoned the argument by not specifying which culpable-mental-state degree listed in PIK Crim. 4th 52.010—intentionally, knowingly, recklessly—the court should have used when instructing the jury.
But at trial, Alvarez' attorney did not request PIK Crim. 4th 52.010. She asked for a “general criminal intent instruction.” The court brought up PIK Crim. 4th 52.010 based on the Notes on Use for that instruction, which say that the PIK–Criminal Advisory Committee believed the instruction must be given in every case where a culpable mental state is not clearly excluded. The court denied the request for a “general criminal intent” instruction, saying that PIK Crim. 4th 52.010 was not appropriate because the statute defining criminal possession of a firearm dispenses with a culpable mental state:
“[DEFENSE COUNSEL:] I would request a general criminal intent instruction.
“THE COURT: Just to note in the record, the general criminal intent instruction is 52.010. I did print that instruction out. I provided copies to both counsel. And I would note on the second page on the Notes of Use there is in the middle of that discussion the following commentary:
“ ‘The committee believes this instruction must be given in every case, unless, one, the definition of the crime charged plainly dispenses with a culpable mental state. Or two, a culpable mental state is otherwise excluded under K.S.A. 21–5203.’
“I would note that in this matter the charge is criminal possession of a firearm. And in that statute and in the PIK instruction that corresponds to the statue there is no culpable mental state that's required. And in the Notes of Use is a definition of the crime charged plainly dispenses with a culpable mental state, the instruction is not necessary. So I will not give that instruction based on that PIK commentary in 52.010.”
But the Notes on Use for PIK Crim. 4th 52.010 are misleading because the instruction should not be given in every case where a culpable mental state is not clearly excluded. In cases where a statute defining a crime requires proof of a culpable mental state but one is not listed in the statute, the proper mental-culpability instruction would encompass K.S.A.2013 Supp. 21–5202(d) and (e), which provide that when a culpable mental state is not listed in a statute but one is nevertheless required, “intent,” “knowledge,” or “recklessness” will establish criminal responsibility. The pattern instruction that addresses this situation is PIK Crim. 4th 52.300, which says: “The State must prove that the defendant insert specific act committed by defendant intentionally, knowingly, or recklessly.”
The firearm-possession criminal statute that Alvarez was charged under does not list a mental-culpability term:
“Criminal possession of a firearm by a convicted felon is possession of any firearm by a person who: ... within the preceding 10 years, has been convicted of a: Felony under ... subsection (b) of [K.S.A.] 21–5807, [the statute defining aggravated burglary] ... was not found to have been in possession of a firearm at the time of the commission of the crime, and has not had the conviction of such crime expunged or been pardoned for such crime.” K.S.A.2012 Supp. 21–6304(a)(3)(A).
So if the firearm-possession statute requires a culpable mental state, the appropriate instruction would have been PIK Crim. 4th 52.300 or a similar instruction.
We must therefore consider whether the district court should have applied PIK Crim. 4th 52.300 or a similar instruction. Alvarez preserved the issue for appeal because he asked the trial court for a “general criminal intent” instruction, which encompasses PIK Crim. 4th 52.300 and similar instructions. Moreover, his appellate brief did not abandon his original request for a “general criminal intent” instruction. On appeal, he still argues that the State should have been required to prove that he had the required culpable mental state to commit criminal possession of a firearm.
Our next step is to determine whether PIK Crim. 4th 52.300 or a similar instruction was legally appropriate—a question over which this court has unlimited review. State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). Then, if the instruction was legally appropriate and the district court erred in refusing to give it, this court must determine whether the error calls for a new trial or was merely a harmless error. Plummer, 295 Kan. at 162–63. An error is harmless if it does not affect a party's substantial rights. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011). To find that substantial rights have not been affected, this court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial. Ward, 292 Kan. at 565.
Here the parties agree that the instruction would have been legally appropriate and that the district court erred in refusing to give it. Under the present criminal code, a culpable mental state is an essential element of every crime unless the statute defining the crime clearly indicates that the legislature did not intend to require a mental element. K.S.A.2013 Supp. 21–5202(a). Two statutory provisions require that the legislature be explicit if a crime is to have no required mental culpability. K.S.A.2013 Supp. 21–5202(d) provides that “[i]f the definition of a crime does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.” (Emphasis added.) K.S.A.2013 Supp. 21–5203(b) provides that “[a] person may be guilty of a crime without having a culpable mental state if the crime is ... a felony and the statute defining the crime clearly indicates a legislative purpose to impose absolute liability for the conduct described ....“ (Emphasis added.)
As stated previously, the firearm-possession criminal statute Alvarez was charged with does not prescribe the mental state a defendant must have to be guilty of the crime. It merely says that the State must prove two elements—possessing a firearm and being convicted of a felony committed without a firearm. Since the statute doesn't clearly state that it is defining an absolute-liability crime, a culpable mental state is required.
The next step in this analysis is determining whether there is a reasonable probability that the district court's error in refusing to read the instruction affected the outcome of the trial.
In State v. Howard, ––– Kan.App.2d ––––, ––– P.3d –––– (No. 110,439, filed ––––, 2014), this court recently held that criminal possession of a firearm is a general-intent crime and that the State is only required to prove a culpable mental state for the possession element of the crime. This is because K.S.A.2013 Supp. 21–5202(a) requires only that the State prove the conduct of the accused person was committed “intentionally,” “knowingly,” or “recklessly” and because under K.S.A.2013 Supp. 21–5204(a), a defendant is not required to know that his legal status makes the possession of a firearm illegal in Kansas. K.S.A.2013 Supp. 21–5204(a) (“Proof of a culpable mental state does not require proof: Of knowledge of the existence or constitutionality of the statute under which the accused is prosecuted, or the scope or meaning of the terms used in that statute.”).
In Alvarez' case, the trial's outcome would not have been different if the court had told the jury that the State had to prove Alvarez possessed the handgun intentionally, knowingly, or recklessly. Overwhelming evidence indicated that Alvarez had a general intent to possess the handgun. Here Stilwell's testimony—that Alvarez walked into the bar holding the gun in his hand—contradicted Alvarez' testimony—that he found the gun in someone else's coat pocket—and indicated that Alvarez had a general intent to possess the firearm. And while Stilwell admitted that he had consumed two beers that night, he likely appeared more credible to the jury than Alvarez, who admitted to having been under the influence of drugs for the 5 days before the incident and said he did not even realize he was wearing someone else's coat until he had been arrested.
Furthermore, even if the jury had believed Alvarez' version of the events, evidence also suggested he had a general intent to possess the firearm because the police found it on his person. After he found the handgun in the coat pocket, he kept it in his possession when he exited the bar and began walking down the street. He did not leave the handgun in the bar or discard it outside the bar. Thus, there was ample evidence that Alvarez possessed the handgun intentionally, knowingly, or recklessly. Even if the jury had been informed that Alvarez needed a culpable mental state to be convicted of criminal possession of a firearm, that knowledge would not have affected the outcome of the trial. We therefore conclude that the district court's error in failing to give the mental-culpability instruction was not reversible error.
III. The District Court's Written Answer to the Jury's Question Was Harmless Error.
Alvarez also takes issue with the procedure the district court used to answer the jury's question about the legal definition of “firearm.” He contends that the court should have read its response to the jury in his presence in open court and that the written response violated both his statutory right to have a jury question answered in his presence and his constitutional rights to a public trial and to be present at every critical stage of his trial. His arguments raise an issue of law over which this court has unlimited review. State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014). He does not take issue with the court's answer to the jury's question.
Regarding his statutory rights, Alvarez argues that the written answer violated K.S.A. 22–3420(3), which at the time of his offense provided:
“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 ... 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.” (Emphasis added.)
The statute was amended this year, however. Subsection (d) of the statute now provides that the court may give written answers to jury questions:
“The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff. The court shall notify the parties of the contents of the questions and provide them an opportunity to discuss an appropriate response. The defendant must be present during the discussion of such written questions, unless such presence is waived. The court shall respond to all questions from a deliberating jury in open court or in writing.” (Emphasis added.) L.2014, ch. 102, sec. 7.
The amendment is applicable to Alvarez' case because the legislature also provided that the amendments were to apply retroactively: “The amendments to this section by this act establish a procedural rule, and as such shall be construed and applied retroactively.” L.2014, ch. 102, sec. 7. Accordingly, we conclude that the court did not violate Alvarez' statutory rights.
But the statutory changes do not affect Alvarez' constitutional arguments-that the district court violated his rights to be present and to a public trial. A. Right to Be Present
The Kansas Supreme Court recently considered a court's written answer to a jury question in Verser, 326 P.3d at 1054–57. The court held that a defendant can argue for the first time on appeal that a written response to a jury question violated his or her right to be present because the right is personal to the defendant and cannot be waived by counsel's failure to object at trial. 326 P.3d at 1055. The court then held that a written answer to a jury question violates the defendant's right to be present under the Sixth Amendment. 326 Kan. at 1055. Thus, under Verser, the way the court delivered its answer to the jury in Alvarez' case violated his constitutional and statutory rights to be present at every critical stage of his trial. Like other constitutional rights, the defendant could knowingly waive this right, in which case a written answer could be sent to the jury. But Alvarez did not waive his right to be present when this answer was read to (or by) the jury.
Although the court made an error here, the State contends that the error was harmless and thus does not require reversal of Alvarez' conviction. The federal constitutional harmless-error standard applies to violations of federal constitutional rights. Verser, 326 P.3d at 1055. Under that standard, the written answer is harmless error if the State proves beyond a reasonable doubt that it did not affect the outcome of the trial in light of the entire record—that there is “ ‘no reasonable possibility that [it] contributed to the verdict.’ “ 326 P.3d at 1055–56 (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011], cert, denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 [2012] ). Appellate courts apply four factors to determine whether a judge's written answer is harmless under the constitutional standard:
“ ‘(1) the overall strength of the prosecution's case; (2) whether an objection was lodged; (3) whether the ex parte 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 a posttrial remedy to mitigate the constitutional error.’ “ Verser, 326 P.3d at 1056; State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 (1998) (setting out the four factors for considering whether a court's communication with the jury outside the presence of the defendant is harmless error).
Here only the third factor could favor Alvarez. The jury's question about the definition of “firearm” concerned a critical aspect of the trial for criminal possession of a firearm. But Alvarez doesn't contest the content of the court's answer—the correct legal definition of “firearm”—and our Supreme Court has found that failing to contest the content of the answer indicates harmless error in other cases. See State v. Clay, 300 Kan. ––––, 329 P.3d 484, 495–96 (2014); State v. Bowen, 299 Kan. 339, 358, 323 P.3d 853 (2014).
Even if the third factor weighs in Alvarez' favor, considering the other three factors would lead this court to characterize the error as harmless. The State had a strong case against Alvarez. Alvarez stipulated that he had a prior felony, making it illegal for him to possess a firearm. Stilwell testified that Alvarez had entered the bar holding the gun, and Alvarez had the gun in his pocket when the police approached him. Alvarez also failed to object to the written answer at trial and did not address it with his posttrial motions, preventing the district court and this court from fully exploring any actual harm. We conclude that this error did not affect the trial's outcome.
We note that while Alvarez does not challenge the in-chambers discussion of the answer on appeal, the record did not clearly show whether Alvarez was present when the court and counsel initially discussed possible responses. We must assume he wasn't. See State v. Betts, 272 Kan. 369, 391, 33 P.3d 575 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). But that does not change our analysis because the in-chambers discussion didn't affect the outcome of the trial either: Alvarez doesn't suggest that the ultimate answer to the jury's question should have been different. See Clay, 329 P.3d at 495–96; Bowen, 299 Kan. at 358; State v. Rhyne, No. 106,313, 2012 WL 5205570, at *7 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1254 (2013). B. Right to a Public Trial
Alvarez also argues that the court's written response to the jury's question was structural error (not subject to the harmless-error analysis) because it violated his right to a public trial, which is guaranteed by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. He contends that the public wasn't present at a critical stage of his trial—when the jury received an answer to its question.
Alvarez relies on Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), to support his contention that the denial of a public trial cannot be harmless. But as a panel of this court explained in State v. Ramirez, ––– Kan.App.2d ––––, 334 P.3d 324, 331 (2014), petition for rev. filed October 27, 2014, in Waller, the issue was whether the defendant's right to a public trail was infringed when an entire hearing on the suppression of evidence was closed to the public. 334 P.3d at 331. Neither Waller nor the Kansas Supreme Court's decisions have ever stood for the proposition that giving a written response to a jury question resulted in a structural error with respect to the right to a public trial. The Ramirez court stated that such a public-trial error, if any, would be subject to a harmless-error analysis. 334 P.3d at 332.
In State v. Womelsdorf, 47 Kan.App.2d 307, 323–25, 274 P.3d 662 (2012), rev. denied 297 Kan. 1256 (2013), this court analyzed a similar procedure to that used in Alvarez' case and found that the district court's written response to a jury question didn't violate the defendant's right to a public trial because the parties' discussion with the court about the answer was held in open court and the written answer was available to the public as part of the record. The Ramirez 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. 334 P.3d at 333. It stated 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. 334 P.3d at 333.
In Alvarez' case, the court also read the jury question in open court, explained its answer in open court, and made its answer available to the public as part of the court file. Arguably, Alvarez' case is different from Womelsdorf and Ramirez because in his case, the court discussed possible responses with counsel privately outside of the courtroom before thoroughly explaining the reasons for its response and reading the response in open court. But Alvarez has not raised this procedural difference on appeal, and it should not lead to a different outcome in his case. As our court has noted in State v. Juarez–Jimenez, No. 106,206, 2013 WL 3155779, at *7–8 (Kan.App.2013) (unpublished opinion), rev. denied December 27, 2013, and Rhyme, 2012 WL 5205570, at *7–8, in-chambers discussions of jury questions are nonevidentiary hearings that do not involve factfinding, and the right to a public trial likely doesn't reach them. See United States v. Norris, 780 F.2d 1207, 1209–11 (5th Cir.1986) (right to public trial was not violated by in-chambers exchanges between counsel and the court on technical legal issues); Ramirez, 334 P .3d at 333; State v. Pullen, 266 A.2d 222, 227–28 (Me.1970), overruled on other grounds by State v. Brewer, 505 A.2d 774 (Me.1985). In addition, in this case, the district court's explanation of its answer and even a summary of the discussion in chambers were made a part of the public record.
Because the question and response were available to the public, we conclude that the written response to a jury question did not violate the defendant's right to a public trial. See, e.g., Ramirez, 334 P.3d at 333; State v. Whitmore, No. 109,924, 2014 WL 4435858, at *9–10 (Kan.App.2014) (unpublished opinion), petition for rev. filed October 6, 2014; State v. Maherry, No. 110,088, 2014 WL 2871370, at *5 (Kan.App.2014) (unpublished opinion), petition for rev. filed July 21, 2014; State v. Owens, No. 109,369, 2014 WL 1612457, at *4–5 (Kan.App.2014) (unpublished opinion), petition for rev. filed May 9, 2014; State v. Armstead, No. 108,533, 2014 WL 349561, at *11–12 (Kan.App.2014) (unpublished opinion), petition for rev. filed February 28, 2014; State v. Wells, No. 108,165, 2013 WL 3455798, at *9–10 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. –––– (2014); State v. Bolze–Sann, No. 105,297, 2012 WL 3135701, at *6–7 (Kan.App.2012) (unpublished opinion), rev. granted 298 Kan. –––– (2013).
IV. Cumulative Error Did Not Deprive Alvarez of a Fair Trial.
Alvarez also argues that the cumulative effect of trial errors—the failure to give a jury instruction regarding a culpable mental state and the written answer to the jury question—warrants reversal, even though the errors may be individually insufficient to require it. For a cumulative-error analysis, we must consider the errors together and analyze whether “their cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless.” State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011). Because the district court's written answer affected a constitutional right, the cumulative effect of the errors must be harmless beyond a reasonable doubt. 293 Kan. at 205.
We examine the errors in the context of the record as a whole, considering how the district court dealt with the errors as they arose, the nature and number of errors committed and their interrelationship, and the strength of the evidence. 293 Kan. at 206. If the evidence against the defendant is overwhelming, the cumulative effect of the errors does not require a new trial. 293 Kan. at 206.
In this case, the errors were not dealt with during the trial. As to the number and interrelationship of the errors, the errors bore no relationship to each other. The district court's failure to give a culpable-mental-state instruction dealt with the State's burden of proof. The error regarding the written response to the jury question was unrelated—it dealt with Alvarez' right to be present at trial. Any prejudice caused by one error didn't exacerbate prejudice caused by the other.
As to the final factor—the strength of the evidence—we have already noted the strong evidence against Alvarez. He stipulated that he was a felon prohibited from possessing a firearm, and the State presented evidence that he possessed a firearm when he entered the bar and after he left it. We are satisfied beyond a reasonable doubt that any cumulative impact from the errors in this case was harmless and does not require a new trial.
The district court's judgment is affirmed.