Opinion
No. 107,656.
2012-12-7
STATE of Kansas, Appellee, v. Darren A. BLIZZARD, Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge. Michelle A, Davis, of Kansas Appellate Defender Office, for appellant. Vernon E. Buck, first assistant county attorney, Mark Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Michelle A, Davis, of Kansas Appellate Defender Office, for appellant. Vernon E. Buck, first assistant county attorney, Mark Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., BUSER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Darren A. Blizzard appeals his convictions and sentences for reckless aggravated battery, aggravated assault, felon in possession of a firearm, and criminal use of a weapon. In particular, Blizzard contends the district court erred in failing to provide a K.S.A. 60–455 limiting instruction at trial. Blizzard also contends his criminal history was improperly considered at sentencing without a finding by the jury beyond reasonable doubt. We affirm.
Factual and Procedural Background
At about midnight on October 30, 2006, Bronta Costello and Lavelle Williams were driving from Wichita to Kansas City when Williams called someone and then told Costello that he needed to stop in Emporia. According to Williams, he called Blizzard because he wanted to purchase some marijuana. Williams described the amount as “[j]ust like a little half of something,” saying he had “a little over $100” with him at the time. Williams testified that Blizzard told him to come to Emporia and “bunk with me.”
At trial, Blizzard testified to a different transaction. Blizzard said the year before, Williams had wanted “to get a large quantity” of marijuana. According to Blizzard, Williams stated he knew “ ‘some people.’ “ Blizzard said Williams did not call until 7 p.m. on October 30, 2006, when Blizzard was in Lawrence. At that time, Williams asked for 10 pounds of marijuana to be delivered to Wichita. Because Blizzard was unfamiliar with Wichita and did not want to deliver the drugs there, he suggested making the delivery in his hometown of Emporia.
Regardless of the origin of the transaction, Costello, Williams, and Blizzard all testified that they met in Emporia and that Blizzard entered the rear passenger door of Costello's SUV to sit behind Williams. According to Costello and Williams, Blizzard shot Costello in the neck without warning, placed the pistol against Williams' head, and said: “You know what I want, give it up.” Williams testified that he grabbed the pistol when Blizzard glanced at Costello, wrestled it away from him, and that Blizzard then ran away. According to Blizzard, however, after he brought the marijuana into the SUV in a duffle bag, Williams pointed the pistol at him and told Costello to drive away. Blizzard claimed that he shoved William's hand to the side, fell out the door, heard a gunshot, and then ran away.
The State charged Blizzard with attempted second degree murder or alternatively intentional aggravated battery, attempted aggravated robbery, aggravated assault, criminal possession of a firearm, and criminal use of a weapon. The trial court instructed the jury that reckless aggravated battery was a lesser included offense of intentional aggravated battery.
The jury acquitted Blizzard of attempted second degree murder, convicted him of the lesser included offense of reckless aggravated battery, acquitted him on the attempted aggravated robbery charge, and convicted him of the remaining charges. Blizzard appeals.
Failure to Submit a K.S.A. 60–455 Limiting Instruction
For the first time on appeal, Blizzard contends the trial court should have provided a K.S.A. 60–455 limiting instruction based on “the evidence that [he] had committed other crimes—possession and sale of marijuana, and a prior felony conviction.” He asserts the trial court's “failure to so instruct was poisonous to [the] defense that during the drug transaction, it was Williams who displayed the gun and attempted to rob Mr. Blizzard, not the other way around.”
At trial, the State and Blizzard stipulated for purposes of the felon in possession charge that he had been released from imprisonment for a felony within the 5–year period preceding the events in question here. The stipulation resolved Blizzard's objections to a journal entry of judgment the State had proposed admitting into evidence. The trial court read the stipulation to the jury during the presentation of evidence and again as part of the instructions. The other evidence which Blizzard argues was subject to K.S.A. 60–455 concerned the drug transaction which involved the charged crimes.
At trial, Blizzard did not object to any evidence based upon a violation of K.S.A. 60–455. Similarly, on appeal, he does not object to the admission of any claimed K.S.A. 60–455 evidence. Moreover, at trial, Blizzard did not request a K.S.A. 60–455 limiting instruction or object to the district court's failure to provide one.
On appeal, Blizzard concedes he did not object to the lack of a limiting instruction at trial.
“K.S.A. 22–3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.” State v. Williams, 295 Kan. ––––, Syl. ¶ 3, 286 P.3d 195 (2012).
In the determination of whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, “the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” 295 Kan. ––––, Syl. ¶ 4. If the reviewing court concludes the district court erred in giving or failing to give a challenged instruction, the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses “whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. ––––, Syl. ¶ 5. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal. See 295 Kan. ––––, Syl. ¶ 5.
K.S.A. 60–455 provides in part:
“(a) Subject to K.S.A. 60–447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.” (Emphasis added .)
At the outset, the evidence of the drug transaction was not evidence of a crime which occurred “on another specified occasion.” K.S.A. 60–455(a). The drug transaction occurred simultaneously with the shooting. It also formed the factual basis for the attempted aggravated robbery charge. Because K.S.A. 60–455 did not apply to this particular evidence, no limiting instruction was required.
Blizzard argues that his “defense rested on his credibility,” and that the “evidence of other crimes (drug dealer, felon who served time) cast [him] in a disadvantage in the credibility fight.”
Assuming that K.S.A. 60–455 applied to the drug transaction, we are not persuaded this evidence prejudiced Blizzard in the credibility contest between him and Williams. All of the eyewitnesses were involved in the drug transaction. Assuming the drug dealing evidence put Blizzard in a bad light, this same evidence equally placed Williams and Costello in a bad light. Moreover, if Blizzard's credibility was impaired he has only himself to blame. While Williams testified that he only sought to purchase a small amount of marijuana from Blizzard, Blizzard testified that he delivered 10 pounds of marijuana to Williams. Blizzard's credibility concerns, if any, were of his making.
Moreover, by testifying to the drug transaction Blizzard “waived protection under the statute.” State v. Gunby, 282 Kan. 39, 58, 144 P.3d 647 (2006) (lack of a K.S.A. 60–455 limiting instruction is not clear error when evidence it would address was produced in defendant's direct examination). Blizzard also complains about evidence he “resorted to violence to rob Williams during the drug deal,” but this was evidence of the crimes charged, not evidence of another crime or civil wrong under K.S.A. 60–455.
Blizzard's stipulation that he had been released from imprisonment for a felony within the preceding 5–year period is also a waiver. See Gunby, 282 Kan. at 57–58. By joining in this stipulation, Blizzard facilitated the admission of the very evidence he now claims was deserving of a limiting instruction. Additionally, since the crime of conviction was not mentioned in the stipulation, the jury had no particular reason to impute to Blizzard a propensity to carry or use firearms. Finally, we also note that the stipulation used almost identical language to the jury instruction which set forth one element of criminal possession of a firearm: “[T]he defendant, within five years preceding such possession had been released from imprisonment for a felony.” In this way, it would be apparent to the jury that this particular evidence was relevant to this particular charge, and was not evidence that Blizzard had a propensity to commit crimes generally. Blizzard has failed to show error or how this particular evidence prejudiced him at trial.
Finally, assuming the trial court did err by failing to provide a limiting instruction, we are not firmly convinced there is a real possibility “the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” State v. Martinez, 288 Kan. 443, 451–52, 204 P.3d 601 (2009).
The State presented a compelling case. For example, the State produced a report showing DNA consistent with Blizzard's DNA on the pistol's stock and DNA consistent with Williams' DNA on the pistol's hammer. The DNA on the stock suggested the pistol was handled by Blizzard, especially since he only claimed to have shoved it to the side as Williams pointed the weapon at him. Williams, in contrast, told police immediately after the incident “that during the struggle his finger became caught between the hammer and the body of the weapon and he kept it from firing again.” The police took a photograph of Williams' finger which apparently showed a corresponding cut, and the State produced the photograph at trial. Considering the DNA expert's testimony that relatively little DNA is found in the outer skin layers but a high concentration is found in the blood, there was tangible evidence to corroborate Williams' account.
Other facts supported the convictions. Blizzard testified that he left the duffle bag of marijuana behind in the SUV when he ran away. But no drugs were recovered even though Williams testified that he drove Costello, who was bleeding profusely from the neck, immediately to the hospital. Williams was led to the hospital by an off-duty detention officer who contacted the police and remained with the SUV until it could be searched. We also note the police recovered Blizzard's expensive wristwatch with a broken clasp from the SUV. This evidence is consistent with Williams' testimony regarding the minute-long struggle for the pistol.
In conclusion, we find no clear error.
Use of Criminal History During Sentencing
Blizzard contends that his criminal history could not be used at sentencing without a finding by the jury beyond reasonable doubt. Blizzard candidly concedes this issue has been decided against him in Kansas, State v. Ivory, 273 Kan. 44, 45, 41 P.3d 781 (2002), and he raises it only to preserve federal review. Our Supreme Court continues to affirm its holding, and this court is duty bound to follow it. See State v. Snellings, 294 Kan. 149, Syl. ¶ 3, 273 P.3d 739 (2012); State v. Elkins, 44 Kan.App.2d 974, 984–85, 242 P.3d 1223 (2010), rev. denied 292 Kan. 967 (2011).
Affirmed.