From Casetext: Smarter Legal Research

State v. Blackmon

Court of Appeals of Kansas.
Mar 15, 2013
296 P.3d 1141 (Kan. Ct. App. 2013)

Opinion

No. 107,562.

2013-03-15

STATE of Kansas, Appellee, v. Scott A. BLACKMON, Appellant.

Appeal from Douglas District Court; Barbara Kay Huff, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Douglas District Court; Barbara Kay Huff, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.

MEMORANDUM OPINION


PER CURIAM.

Scott A. Blackmon, convicted by a jury of 9 of 12 criminal charges, raises two arguments on appeal. First, he argues that the district court erroneously instructed the jury that it could convict Blackmon of a charged crime if the State proved at least one—rather than all—of the elements of the crime beyond a reasonable doubt. Blackmon contends that this constitutes structural error, which precludes any harmless error review. Second, Blackmon argues that the court erred by failing to verify, on the record, that Blackmon did not want to testify in his defense.

We affirm Blackmon's convictions, concluding the district court's jury instructions were not clearly erroneous and there is no legal requirement that the district court must sua sponte ask the defendant whether he intends to waive his right to testify.

The State filed 12 criminal charges against Blackmon stemming from his alleged conduct in four residential burglaries in Lawrence during March 2011. After the State concluded its case-in-chief, Blackmon rested his defense without presenting any evidence. Blackmon made no express waiver of his right to testify. The district court made no inquiry of Blackmon as to whether he intended to waive his right to testify.

At the jury instruction conference, Blackmon did not object to any of the jury instructions to be given by the court. Jury Instruction No. 3 was taken from the pre–2005 version of PIK Crim.3d 52.02. This instruction was as follows:

“The state has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.

“The test you must use in determining whether the defendant is guilty or not guilty is this: if you have a reasonable doubt as to the truth of any of the claims required to be proved by the state, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the state, you should find the defendant guilty.” (Emphasis added.)

The jury was also instructed in the introductory paragraph to each of the 12 elements instructions that “[t]o establish this charge, each of the following claims must be proved....” (Emphasis added.)

During closing arguments, defense counsel told the jury that it could not convict Blackmon for any crime unless the State proved “each element beyond a reasonable doubt.”

Jury deliberations followed, at which the jury asked the district court about Jury Instruction No. 22, which concerned the elements of criminal damage to property. Specifically, the jury asked whether the victim named in the instruction needed to be the owner of the property damaged by Blackmon in order for him to be convicted of the crime. As agreed upon by the court and both parties, the court told the jury to consider the testimony and exhibits in this case.

The jury ultimately convicted Blackmon of nine charges and acquitted him of three. The convictions comprised of one count of aggravated burglary, two counts of burglary, three counts of theft, two counts of criminal damage to property, and one count of obstructing official duty. He was acquitted of one count of burglary, one count of theft, and one count of criminal damage to property. The district court then sentenced Blackmon to 130 months in prison. Blackmon has filed a timely appeal.

The first issue raised by Blackmon is whether Jury Instruction No. 3 is legally erroneous and constitutes structural error. When a defendant challenges a jury instruction on appeal but did not object to the instruction at trial, an appellate court reviews the issue under a clearly erroneous standard of review. See K.S.A. 22–3414(3); State v. Adams, 292 Kan. 60, 75, 253 P.3d 5 (2011). An instruction is clearly erroneous only if the reviewing court is “ ‘firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.’ [Citations omitted.]” 292 Kan. at 75.

Blackmon's argument largely hinges on application of this court's decision in Miller v. State, No. 103,915, 2012 WL 401601 (Kan.App.2012) (unpublished opinion), rev. granted March 4, 2013. In Miller, the K.S.A. 60–1507 movant successfully argued his trial and appellate counsel were ineffective for failing to challenge the following jury instruction:

“ ‘The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.’ “ 2012 WL 401601, at *2.

This jury instruction, however, was highly problematic because it suggested to the jury that it must convict the defendant if it believed the State proved at least one—rather than all—of the elements of a crime. Consequently, the State could convict the defendant with “patently insufficient evidence.” Miller, 2012 WL 401601, at *2. Although the State agreed the jury instruction was erroneous, it nonetheless contended that any error was harmless. In support of this argument, the State observed that the district court orally read the instruction to the jury in accordance with PIK Crim.3d 52.02, twice using the term “any” rather than using the terms “each” then “any.” Miller, 2012 WL 401601, at *5–6.

The Miller court was not persuaded by the State's argument. The court observed that the term “any” is potentially ambiguous and subject to misinterpretation and, thus, the difference between the orally recited PIK instruction and the improper written instruction “is one of degree rather than one between accuracy and error.” Miller, 2012 WL 401601, at *6. Moreover, the court noted that jurors presumably apply written rather than oral instructions. 2012 WL 401601, at *6; see also State v. Aikins, 261 Kan. 346, 370, 932 P.2d 408 (1997) (district court's misstatement of the State's reasonable doubt burden during jury orientation was not reversible error because it had been corrected and trumped by properly written instruction). Thus, Miller's conviction was reversed and the case remanded for a new trial. Miller, 2012 WL 401601, at *9.

In State v. Womelsdorf, 47 Kan.App.2d 307, 330, 274 P.3d 662 (2012), petition for review filed May 10, 2012, the district court instructed the jury in the exact same manner as in the present case, twice using the term “any.” Thus, the instruction followed the language of PIK Crim.3d 52.02 and was therefore distinguishable from the jury instruction in Miller, which used the term “each” rather than “any.” The Womelsdorf holding that the giving of PIK Crim.3d 52.02 did not constitute reversible error has been followed by a host of cases. Accord State v. Rossing, No. 107,073, 2012 WL 6734652 (Kan.App.2012) (unpublished opinion ), petition for review filed January 22, 2013; State v. Snowden, No. 107,284, 2012 WL 5869612 (Kan.App.2012) (unpublished opinion), petition for review filed December 17, 2012); State v. Harris, No. 107,465, 2012 WL 5205722 (Kan.App.2012) (unpublished opinion ), petition for review filed November 19, 2012; see also State v. Kling, No. 106,361, 2012 WL 2045375 (Kan.App.2012) (unpublished opinion) (reaching same conclusion as Womelsdorf though not citing to the opinion), petition for review filed July 2, 2012.

Moreover, Miller did not mention or consider State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004). In Beck, the court rejected the defendant's argument that the use of the term “any” in PIK Crim.3d 52.02 misrepresented the State's burden of proof:

“Again, Beck is focusing on one word of the instruction in isolation from its context. The word ‘any’ is used consistently in the instruction. The sentence immediately preceding the language Beck finds objectionable states: ‘If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty.’ (Emphasis added.) We reject Beck's argument that the word ‘any,’ as used in this context, could somehow create ambiguity or result in Beck being convicted if only one element of the crime is proven. Furthermore, Instruction No. 11, listing the elements of the crime of aggravated escape from custody, contains the language: ‘To establish this charge, each of the following claims must be proved....’ (Emphasis added.) This language negates any potential confusion that may have been caused by the use of the word ‘any’ in Instruction No. 6.” 32 Kan.App.2d at 787–88.

Although Womelsdorf recognized that, in the wake of Beck, PIK Crim.3d 52.02 was amended in 2005—now stating “any” then “each” instead of “any” then “any”—this amendment and improvement to the instruction did not invalidate its predecessor. See Womelsdorf, 47 Kan.App.2d at 334. Thus, the instruction was not clearly erroneous. 47 Kan.App.2d at 334.

In the present case, the district court's use of the term “any” was neither ambiguous nor suggested to the jury that it could convict Blackmon of a charged crime so long as the State proved at least one—rather than all—of the elements of the crime beyond a reasonable doubt. See, e.g., Beck, 32 Kan.App.2d at 787–88. Moreover, in all 12 jury instructions concerning the specific elements of the respectively charged crimes, the court correctly informed the jury that the State must prove “each of the following” elements of the crimes, therefore negating any potential confusion that the term “any” would have caused. See 32 Kan.App.2d at 787–88.

Blackmon next contends that the district court erred in failing to verify on the record that he would not testify in his own defense. When a criminal defendant asserts a challenge to his or her constitutional right to testify, an appellate court reviews the matter de novo. State v. Carter, 284 Kan. 312, 318–19, 160 P.3d 457 (2007).

Relying on Justice Lockett's concurring and dissenting opinion in Taylor v. State, 252 Kan. 98, 107, 843 P.2d 682 (1992), Blackmon argues that the better practice would be for the district court to ask him, on the record, if he would waive his right to testify.

The majority opinion in Taylor, however, negates the legal effectiveness of Blackmon's argument:

“A trial court has no duty sua sponte to address a silent defendant and inquire whether he or she knowingly and intelligently waives the right to testify. An express waiver, on the record, is not necessary because a defendant's conduct provides a sufficient basis from which to infer that the right to testify is waived.” 252 Kan. 98, Syl. ¶ 5.

Taylor cited seven different reasons as to why a district court has no duty to inquire sua sponte about whether a defendant waives his or her right to testify. These reasons are as follows: (1) the right to testify must be asserted to be recognized; (2) the decision to testify must be made at trial, and the failure to testify cannot be raised as an afterthought; (3) the court could influence the defendant to waive his or her right not to testify by advising him or her of the right to testify; (4) the trial court may improperly intrude on the attorney-client relationship; (5) the judge's admonition may introduce trial error; (6) it is difficult to determine the appropriate time for the admonition; and (7) the judge should not interfere with trial strategy. 252 Kan. at 106.

Although more than 20 years have passed since Taylor, its holding remains good law today. See, e.g., State v. Anderson, 294 Kan. 450, 465–67, 276 P.3d 200 (2012) (refusing to depart from the rationale articulated in Taylor ). This court is duty bound to follow Kansas Supreme Court precedent, and, because there is no indication here that the court is departing from its previous decision, Blackmon's argument is not persuasive. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011).

For the foregoing reasons, we conclude the district court's Jury Instruction No. 3 was not clearly erroneous. We further conclude the district court did not err in failing to verify on the record that Blackmon would not testify in his defense. Accordingly, we affirm Blackmon's convictions.

Affirmed. McANANY, J., concurring.

I concur with the majority's overall analysis and the disposition of this appeal. I write separately only to pick a nit that bothers me but maybe no one else. The majority concludes that the instruction on the burden of proof is not clear error. I would simply conclude that it is not error at all.

In undertaking a clear error analysis, we first determine if the instruction was erroneous. If so, we then determine whether the error prejudiced the rights of the defendant. Thus, in State v. Vasquez, 287 Kan. 40, Syl. ¶ 6, 194 P.3d 563 (2008): “Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.” (Emphasis added.) A conclusion that an instruction was not clear error, as the majority declares today, is predicated on the instruction being erroneous, albeit harmless.

I do not take from the majority opinion that we are concluding that the instruction here was given in error. I find no merit whatsoever in the defendant's claim that the jury could have been misled by this instruction. Thus, I would not conclude that the instruction was not clearly erroneous. I would simply conclude that there was no error whatsoever.


Summaries of

State v. Blackmon

Court of Appeals of Kansas.
Mar 15, 2013
296 P.3d 1141 (Kan. Ct. App. 2013)
Case details for

State v. Blackmon

Case Details

Full title:STATE of Kansas, Appellee, v. Scott A. BLACKMON, Appellant.

Court:Court of Appeals of Kansas.

Date published: Mar 15, 2013

Citations

296 P.3d 1141 (Kan. Ct. App. 2013)