Opinion
No. 106,617.
2013-11-6
STATE of Kansas, Appellee, v. Michael E. BURRIS, III, Appellant.
Appeal from Sedgwick District Court; Jeffrey L. Syrios, Judge. Rick Kittle, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey L. Syrios, Judge.
Rick Kittle, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael E. Burris, III, appeals his robbery conviction based on alleged multiple procedural, evidentiary, and sufficiency errors. We find no reversible error in this case, and we affirm.
Identity is not an issue in this case. On August, 16, 2010, Burris, with his face covered by a black mask, entered the Heritage Restaurant in Wichita intending to steal the money used to pay winners in the instant lottery game. The restaurant is equipped with multiple surveillance cameras that captured Burris' every movement. After going through the restaurant's two sets of doors, Burris immediately went behind the counter and frantically searched the drawers and cabinets for the lottery money. In order to get behind the counter, Burris went through a counter-height swinging door.
Angela Stetler, the restaurant manager in charge at the time, was sitting behind the counter when Burris entered. She said a man with a black mask entered the restaurant and then went past her to get to the drawers and cabinets. She testified the man pushed his way through the tight and narrow space behind the counter. She was scared to death and afraid he was going to hurt her.
Burris presented a compulsion defense. He testified he had purchased drugs from men named Mark and Deshae. He owed them $2,000. When Mark and Deshae came calling for the money, Burris could not pay them. Mark pulled out a gun and ordered Burris into their car. They drove Burris to another house where he fell asleep on a couch. When he woke up, Mark had Burris put on gloves, a “do” rag, and a jacket. The three of them drove to pick up a man named BJ and then they headed to the Heritage Restaurant. BJ told Burris to go into the restaurant and take the lottery money that was in the drawers behind the counter otherwise he would be shot. BJ followed Burris to the front door of the restaurant.
Burris testified he entered the restaurant and went immediately to the drawers behind the counter. He said that BJ stayed in the front doorway and watched to make sure he got the money. Burris testified that when he went behind the counter he did not touch Stetler or say anything to her.
After putting all the money into his back pack, Burris was stifled in his escape. Donald Kinney, a retired sheriff's deputy, attempted to restrain Burris when he came out from behind the counter. Kinney was able to tackle Burris as he tried to leave the restaurant. Kinney testified that in the front doorway another man tried to break Kinney's grasp around Burris but was unsuccessful and then ran away. Several other restaurant patrons assisted Kinney in subduing Burris until authorities arrived.
The State charged Burris with one count of robbery, a severity level 5 person felony, in violation of K.S.A. 21–3426. A jury convicted Burris as charged. The trial court gave Burris a presumptive sentence of 57 months' incarceration. Burris appeals.
Burris first argues the trial court committed reversible error when it answered multiple questions from the jury outside of his presence.
The following transpired at trial regarding the four questions submitted by the jury:
“THE COURT: We're back on the record. We received our first question from the jury. And I believe, I don't know, I think they were back there two or three minutes. The question was in written form:
“During the swearing in of the defendant, the defendant raised his left, underlined left hand, not right. Is this a problem?
“And it's signed by [T.S.]. Dated today.
“In speaking with counsel, for both parties, the agreed response is: No, it is not a problem. The oath was appropriate. Signed by me.
“Is that you're agreed response, Mr. Lane:
“MR. LANE [PROSECUTOR]: Yes, Your Honor.
“THE COURT: Mr. Parrett.
“MR. PARRETT [DEFENSE COUNSEL]: Yes, Your Honor.
“THE COURT: Very good. The question was just two minutes after they came in. Question gave back at 4:08.”
At this time, a recess was taken, after which the following proceedings occurred.
“THE COURT: We're back on the record. We've had two additional questions. They are questions number two and question number three. And in that order, they read, question two: What is the legal definition of, quote, threat of bodily harm?
“Signed and dated today by the presiding juror, [T.S.].
“And question number three is: Is threat of bodily harm determined by the actions of the perpetrator or the perception of the victim?
“That also is signed by [T.S.], dated today's date.
“The attorneys have agreed on a response to that. And it is, in essence, the [S]tate [has] requested second paragraph of instruction four, which the defense originally objected to, with the exception of omitting the first sentence of that paragraph. So the agreed to response is out of State v. Moore. 269 Kan. 27. And it reads as follows:
“In determining whether a threat of bodily harm exists, the totality of surrounding circumstances may be considered, including whether the defendant intended his conduct to intimidate or threaten the victim into giving up property, and whether the defendant orchestrated a situation intended to intimidate.
“I provided this written response to all three counsel. And they have indicated to me that it is their agreed response.
“Is that correct, Mr. Lane:
“MR. LANE: That is correct.
“THE COURT: Is that correct, Mr. Parrett?
“MR. PARRETT: Yes, Your Honor.
“THE COURT: Very good. 4:45.
“Katie is going to find out if they're within range. If not, I'll have them come back.
“Do you all have a preference as to when
“MR. LANE: No, Your Honor.
“MR. PARRETT:—tomorrow?
“I didn't really know what the options are.
“THE COURT: I got to tell you, whatever you want.
“I don't know what other options there are, sir.”
At this time, a recess was taken, after which the following proceedings continued:
“THE COURT: Another question. 4:49.
“We're back on the record.
“The jury came back with question number four. The format is which the note came back was, it came back handwrote, they handwrote on my response to questions two and three. And they, [T.S.], under the date, he signed it. And he states: Please explain totality. And grammatically it appears, parentheses, due to the “and”, parentheses, that all three conditions must be met.
“If one is met, do we consider this as threat met?
“I showed this question to all three counsel. I think it's fair to say that we're not quite sure how we can possibly explain it any more. They're obviously very detail oriented. And we're not sure, either attorney, knew of any option to get any more detailed than what we gave them.
“And so the agreed response, which is in writing, states as follows:
“Please review the instructions and the responses to question two and question three, and give the words their ordinary and plain meaning. That is over my signature.
“Is that the agreeable response?
“MR. LANE: Yes, Your Honor.
“THE COURT: (Pointing to defense attorney).
“MR. PARRETT: Yes, Your Honor.
“THE COURT: We're also after five o'clock. And Katie is going to tell them to take a look at this, that she'll be back in a couple minutes to determine whether they're going to reach a verdict or not. They're not under any pressure to do that, but we just need to know whether we need to send them home tonight. 5:10.”
At this time, a recess was taken, after which the following proceedings continued:
“THE COURT: Okay.
“The jury has, we're at 5:30, and everybody is graciously waited as the jury indicated with the last response to the question that they might be close. They just let us know they do have a verdict. So if you'll get the jury.”
The procedure for addressing a jury's questions is specifically provided for in the Kansas statutes. K.S.A. 22–3420(3) states:
“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.”
Burris now asserts that the trial court's procedure of sending written answers to the jury's questions violated K.S.A. 22–3420(3) and his constitutional rights under the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Specifically, Burris argues that the trial court committed structural error when it responded to the jury's questions in writing. The State, however, maintains that Burris is barred from raising this issue on appeal because he did not raise it at trial. Alternatively, the State contends that any alleged procedural error was harmless beyond a reasonable doubt.
Because resolution of this issue requires statutory and constitutional interpretation, this issue presents a question of law over which appellate courts have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Before we can reach the merits of Burris' argument, we first must determine if we have jurisdiction to reach the merits of this issue. The State correctly asserts that Burris has raised this issue for the first time on appeal. Burris failed to object to the trial court's written answers to the jury's questions. Moreover, Burris did not challenge the trial court's procedure in responding to the questions in writing rather than calling the jury into the courtroom to communicate the answers. Generally, issues not raised before the trial court cannot be raised for the first time on appeal. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008).
There is specific authority in the area of jury questions holding that we do not have jurisdiction to address this issue, and Burris has not argued for any exception. The court in State v. Groschang, 272 Kan. 652, 672–73, 36 P.3d 231 (2001), refused to address a defendant's failure to object to the trial court's handling of the jury's questions. We agree with Groschang and find Burris failed to preserve any error and also invited the court into error by agreeing with the answers given the jury. The Groschang court held:
“The record clearly shows that Groschang participated in the proceedings and was given the opportunity on the record to voice any objections or to suggest a different response. He did not do so. The time-honored rule that an issue not presented to the trial court may not be raised for the first time on appeal, State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992), also applies to jury requests under K.S.A. 22–3420(3). As the State points out, a timely objection is necessary to give the trial court the opportunity to correct any alleged trial errors. See State v. Wolfe, 194 Kan. 697, 699, 401 P.2d 917 (1965).
“Clearly, the defendant had the opportunity to object and to inform the trial court of his dissatisfaction with the court's response to the jury request while the court still had a chance to correct any error. By failing to object, the defendant waived his right to raise the issue on appeal.” 272 Kan. at 672–73.
Even though Burris failed to preserve this issue for appeal, our Supreme Court has addressed a similar issue for the first time on appeal. See State v. Bell, 266 Kan. 896, 918–20, 975 P.2d 239,cert. denied528 U.S. 905 (1999) (court addressed merits of defendant's argument that trial court erred when it answered jury question outside defendant's presence even though defendant raised issue for first time on appeal).
On the merits, Burris' arguments fail as well. This court has entertained virtually the identical arguments in State v. Womelsdorf, 47 Kan.App.2d 307, 321, 274 P.3d 662 (2012), petition for rev. filed May 10, 2012. Burris contends that the trial court's procedure of submitting written answers to the jury's questions violated K.S.A. 22–3420(3) and his constitutional rights. The State disagrees and relies on Womelsdorf to support its argument. Quoting Bell, the Womelsdorf court laid down the law for answering a jury's questions:
“The correct procedure for a trial court to follow when answering a question from a deliberating jury is set forth in K.S.A. 22–3420(3). [Citation omitted.] K.S.A. 22–3420(3) requires that once the jury has begun deliberations, any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence, unless the defendant is absent voluntarily. [Citation omitted.]
“ ‘... K.S.A.1998 Supp. 22–3405, as well as the Sixth Amendment's Confrontation Clause and the Due Process Clause of the Fourteenth Amendment, require the defendant's presence at every critical stage of the trial. [Citations omitted.] This includes all times when the jury is present in the courtroom and whenever the trial court communicates with the jury. [Citation omitted.]’ 266 Kan. at 919–20.” 47 Kan.App.2d at 321–22.
Here, the trial court erred because it failed to follow the procedures under K.S.A. 22–3420(3). Nevertheless, our Supreme Court and the Womelsdorf court have determined that such a violation requires a harmless error analysis. Womelsdorf, 47 Kan.App.2d at 322. Under the harmless error standard of K.S.A. 60–261, the test is whether the error affected a party's substantial rights, that is, whether the error affected the outcome of the trial. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). When an alleged error is constitutional, the appellate court must find beyond a reasonable doubt that there was no impact on the trial's outcome. In other words, the court must find there is no reasonable possibility that the error contributed to the verdict. 292 Kan. at 568–69.
There was no reasonable possibility that the alleged errors contributed to the verdict in this case. The trial court's responses to the jury's questions did not misstate the law or the evidence. Instead, the trial court's answers provided a correct statement of law or merely directed the jurors' attention back to the jury instructions. The trial court's answers did not provide any additional information which could have changed the jury's verdict, and the answers did not place undue emphasis on whether the jury should find Burris guilty or not guilty. Indeed, a strong argument can be made that any error here was invited by Burris' counsel because he agreed to the trial court's procedure. As a result, we conclude beyond a reasonable doubt that the trial court's procedure of submitting answers in written form had no effect on the outcome of the trial. In other words, we determine that any error in the trial court's failure to follow the procedure under K.S.A. 22–3420(3) was harmless.
The court in Womelsdorf also rejected the same arguments made by the same attorney now raised by Burris that he was denied a fundamental right to an impartial judge and right to a public trial when the trial court sent the written responses back to the jury room. 47 Kan.App.2d at 324–25. We will not revisit those issues. Similar to the present case, the Womelsdorf court rejected the defendant's reliance on the persuasive authority of State v. Brown, 362 N.J.Super. 180, 827 A.2d 346 (2003), where the court found a read-back of witness testimony was a critical stage of the proceedings because it furnished the jurors with information they needed to decide the case. 47 Kan.App.2d at 324. As far as the cumulative error rule, the Womelsdorf court held that any error in the court's failure to follow K.S.A. 22–3420(3) did not substantially prejudice the defendant or deny him a fair trial. 47 Kan.App.2d at 325–26. We reach the same conclusion here.
Next, Burris argues his robbery conviction was not supported by sufficient evidence. He contends there is no evidence to support a finding that he came into possession of the money by using force or threat of bodily harm. Consequently, since he asserts he came into peaceable possession of the property, he cannot be convicted of robbery. He claims the only force came as he tried to leave the restaurant.
We begin the analysis with our standard of review:
“When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether after reviewing all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009).
The jury considering Burris' case was instructed on both robbery and the lesser included offense of theft. K.S.A. 21–3426 sets forth the elements for robbery as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” Robbery is also not committed where possession is obtained without the use of force or threat of bodily harm. Neither is there a robbery where there is no use of force except to resist arrest or escape. To constitute the crime of robbery, it is necessary that the use of force or threat of bodily harm precede or be contemporaneous with the act of obtaining physical possession of the property. See State v. Aldershof, 220 Kan. 798, 556 P.2d 371 (1976).
The pivotal case in this discussion is State v. Moore, 269 Kan. 27, 33, 4 P.3d 1141 (2000). Burris acknowledges Moore but argues it was wrongly decided and we should adopt the opinion of the two dissenting judges in that case. However, we are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Burris does not cite any cases supporting a theory that the Kansas Supreme Court is departing from Moore. In a separate issue, Burris argues that answering one of the jury's questions with the law set forth in Moore was erroneous and again argued it was wrongly decided. For the reasons just stated, the trial court did not err in using language in Moore for its response to the jury's questions.
In Moore, the court held that a threat does not have to be explicit or verbalized to satisfy the elements of a robbery. There, the defendant and two accomplices backed a car towards the victim's car in a remote parking lot. Moore approached the victim while the other two men sat watching in the car. Moore told the victim and her boyfriend, “Give me your keys.” Without hesitation the victim gave Moore the keys and he stole the victim's car stereo. The victim testified she felt threatened and scared. In upholding Moore's conviction for robbery, our Supreme Court wrote:
“We conclude it is appropriate to examine the evidence from the victim's point of view. In so doing, the circumstances, including what the victim reasonably perceived as well as whether the defendant intended his conduct to intimidate or threaten the victim into giving up her property, should be considered. Analyzing the evidence, we find the defendant orchestrated a situation intended to intimidate the young woman into surrendering her car keys....
“A reasonable person would not ordinarily surrender his or her car to a stranger under such circumstances unless he or she feels threatened or intimidated.” 269 Kan. at 33.
See State v. Dilliehunt, No. 95,679, 2008 WL 440493, at *2 (Kan.App.2008) (unpublished opinion) (“[A] reasonable clerk at a convenience store would not surrender merchandise without feeling threatened or intimidated. Convenience store robberies are also not uncommon. The store clerks' surrender of the cigarettes in these cases was no more of a voluntary act than was the victim's surrender of her car keys in Moore.”); see also State v. Riley, No. 106, 353, 2012 WL 4373002, at *6 (Kan.App.2012) (unpublished opinion) (discussion of Moore in the context of whether defendant should have been given a lesser included instruction on theft).
Moore requires an evaluation of the totality of the circumstances, which included the perception of the victim as well as the defendant's intention of intimidation and threat in order to take property from the victim. In this case, Stetler testified that when she looked up, she saw a person in a black coat and wearing a black mask covering his face. She said, “[I]t scared me to death.” She testified the man pushed his way through the tight and narrow space behind the counter to get to the money drawers. Stetler stated she moved away because “I was afraid he was going to hurt me” and “I was terrified.”
Kinney testified that when he saw Burris enter the restaurant wearing dark clothing and a ski mask, he knew Burris was going to rob the place. When Burris came out from behind the counter, Kinney got in his way. Kinney grabbed Burris but lost his footing and Burris managed to get through the first set of doors. Kinney said there was another man in the doorway and the other man made a “half-hearted attempt” to free Burris but that it did not work and the man ran away.
Officer Robert Schmeidler interviewed witnesses at the scene. He testified that when he talked to Stetler, she was startled and emotionally upset. He said Stetler was crying and scared.
Stetler testified as to her fear of injury and her innate response to move away from the counter because she would be hurt if she disturbed Burris' taking of the money. Similar to Moore, Burris, with his cohort standing watch in the front doorway, presented an intimidating presence which resulted in Stetler having concern for her personal safety and acceding to the unspoken demand to move so Burris could search behind the counter. Viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found Burris guilty of robbery. Burris was able to present his testimony that he did not communicate or make contact with Stetler behind the counter. If the jury believed the situation did not amount to robbery, it could have convicted Burris, as instructed, of the lesser-included offense of theft. See K.S.A. 21–3701(a)(l); State v. Sandifer, 270 Kan. 591, 599–601, 17 P.3d 921 (2001) (theft is a lesser included offense of both robbery and aggravated robbery).
Next, Burris argues it was clearly erroneous for the trial court to not instruct on the lesser included offense of attempted robbery. Burris asserts that the jury should have been instructed on attempted robbery as a lesser included offense of the charged crime of robbery because the evidence could have permitted a guilty verdict on the lesser crime.
The Kansas Supreme Court recently clarified the standard of review applicable to jury instruction issues. The threshold determination is whether the issue is reviewable. A defendant who did not object at trial can raise a jury instruction issue on appeal but bears the burden of showing clear error. See K.S.A. 22–3414(3) (“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto ... unless the instruction or the failure to give an instruction is clearly erroneous.”). The appellate court must then determine whether an instruction error occurred, which is a question of law subject to unlimited review, before determining whether the instruction error was reversible, which is a question that requires de novo review. State v. Williams, 295 Kan. 506, Syl. ¶¶ 3–5, 286 P.3d 195 (2012) (instruction error is clearly erroneous where “the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred”).
Commission of the crime of robbery is complete when the robber takes possession of the property. In State v. Miller, 53 Kan. 324, 36 P. 751 (1884), where a robbery conviction was sustained, the defendant cut the victim's hand contemporaneously with his taking of money from a cash drawer. The physical taking and removal of the money had not been completed; the defendant had not completed the act of obtaining possession of the money until after force was used. 53 Kan. at 327–28.
In State v. Buggs, 219 Kan. 203, 204–05, 547 P.2d 720 (1976), the victim was the operator of a Dairy Queen store. As she was leaving the store at the close of business one evening, with the day's business receipts in a bank money bag in her purse, she was accosted. Under threat of bodily harm she was ordered back into the store where she was asked for “the money.” She handed over her purse. Police officers arrived in response to a silent alarm. They confronted and apprehended defendant before he had left the store premises. On appeal, defendant claimed he was erroneously denied an instruction on attempted robbery as a lesser included offense of robbery. The Buggs court reasoned that attempted robbery occurs only when the proscribed taking is not accomplished; “Here all the evidence is that the bank money bag was ‘taken’ from [the victim] ... and later removed ... to the restroom.... The robbery was complete when [the victim] handed over the bag.” 219 Kan. at 206.
Applying Buggs and Miller, we find the robbery in this case was completed when Burris packed his bag full of money from the restaurant's coffers. His crime was completed, but his escape was fortunately prevented by the retired sheriff's deputy. It was not clearly erroneous for the trial court to not give a jury instruction on attempted robbery. The State correctly points out that to the extent that Burris challenges the lack of physical resistance to support the robbery, then the lesser included offense of theft should be given. See State v. Bateson, 266 Kan. 238, 970 P.2d 1000 (1998). The jury was given the lesser included offense instruction of theft and still convicted Burris of robbery.
Last, Burris argues he was denied his right to a unanimous verdict because the State charged him with alternative means of robbery either by force or threat of bodily harm.
To the extent that alternative means issues involve jury unanimity, an appellate court likewise has unlimited review. State v. Stevens, 285 Kan. 307, Syl. ¶ 1, 172 P.3d 570 (2007). A criminal defendant has a statutory right to a unanimous jury verdict on each individual offense charged. See State v. Wright, 290 Kan. 194, 201–03, 224 P.3d 1159 (2010). In an alternative means case—where a single offense may be committed in different ways—there must be jury unanimity as to guilt for the single offense but not as to the particular means by which the crime was committed so long as any means of committing the crime is supported by sufficient evidence. 290 Kan. at 202.
In his appellate brief, Burris stated: “ Wright clearly focuses on the crime as it is ‘charged’ rather than instructed upon. See 290 Kan. at 201–02.” This statement by Burris is not supported by Wright and is a misstatement of the law. The legal foundation for the alternative means argument is jury unanimity. See State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). In discussing the evolution of the alternative means jurisprudence, the court in Wright specifically stated: “ Timley required sufficiency of evidence to support each alternative means upon which a jury is instructed, in order to protect a criminal defendant's right to a unanimous jury verdict.” 290 Kan. at 201. Jurors do not base their verdict on the complaint filed in the case. Instead, they render a verdict based on the instructions provided by the court.
Jury Instruction No. 4 provided a sole means by which Burris committed the robbery: “[T]hat the taking was by threat of bodily harm to Angela Stetler.” The only means by which the jury could have found Burris guilty of robbery was by use of threat of bodily harm. Burris' alternative means argument is without merit.
Affirmed.