Opinion
No. 104,934.
2012-10-26
STATE of Kansas, Appellee, v. Gregory T. COGGS, Appellant.
Appeal from Wyandotte District Court; Jack Lively, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Sheryl L. Lidtke, deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Jack Lively, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Sheryl L. Lidtke, deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
A Wyandotte County jury convicted Defendant Gregory T. Coggs of committing various sex offenses against two underage females while they were wards of the state. The juveniles were receiving mental health care in the hospital unit of the Kaw Valley Children's Center where Coggs worked as a behavioral health technician. Coggs contends the district court erred in refusing his pretrial request for independent psychological examinations of his accusers and his request for a continuance of the March 2010 trial. The district court acted within its discretion and, therefore, committed no error in either ruling. Coggs also challenges his sentence in two respects. On those points, we vacate the no-contact order the district court imposed and affirm its use of Coggs' criminal history in determining an appropriate guidelines sentence.
Facts and Procedural History
Because Coggs wisely does not challenge the sufficiency of the evidence to support the convictions, we need not and do not engage in a detailed recitation of the underlying facts. The procedural history of the case takes on more importance given Coggs' challenge to the denial of his requested continuance, so we outline it with some particularity.
The trial testimony of the victims, if believed by the jury, sufficiently supported the elements of the offenses and, therefore, the verdicts finding Coggs guilty of three counts of criminal sodomy, attempted criminal sodomy, aggravated indecent liberties with a child, and indecent liberties with a child. A.B. and C.D., the victims, were both about 15 years old when they were admitted to the hospital for in-patient care.[†]
[†] Customarily, this court's decisions refer to both juveniles and victims of sex crimes by their initials in the interests of protecting their privacy. In this case, the victims share the same initials. Rather than using their given names and the initial of their last names or wholly depersonalized designations such as Victim 1 and Victim 2, we have chosen the pseudonymous initials A.B. and C.D.
A.B. arrived at the hospital unit first in mid–2004 and struck up an acquaintance with Coggs, who was assigned to that part of the center. According to A.B., their relationship quickly became intimate and included acts of oral sex and sexual intercourse in her room and various secluded places in the unit. At trial, A.B. indicated she voluntarily participated in the encounters with Coggs. CD. came to the hospital a couple of weeks later and was assigned to the same room as A.B. CD. also fairly quickly became sexually involved with Coggs. Their encounters were of the same sort as he was having with A.B. At trial, however, CD. testified that Coggs pressured her into participating by suggesting he could write unfavorable reports about her. A.B. and CD. were aware of each other's sexual activity with Coggs and talked about the relationships. Neither, however, reported Coggs' conduct to anyone in a position of authority until after leaving the hospital for other juvenile placements.
After the circumstances came to light, A.B. and CD. gave formal statements in early 2005 about what Coggs had done to them. He was duly charged in Wyandotte County District Court in February 2006, about a year later. The case lingered for more than 4 years before going to trial. Coggs changed lawyers several times and entered and then successfully withdrew a guilty plea. Those legal gymnastics accounted for much of the delay. In defending against the charges, Coggs sought social service records related to the psychological and placement histories of A.B. and CD. Production of those voluminous documents took some time.
On July 2, 2009, the lawyer representing Coggs at that time filed motions for independent psychological examinations of A.B. and CD. He also filed a motion to withdraw as defense counsel. At the end of the month, the lawyer asked that hearings on the motions for the examinations be postponed. The district court granted that request, allowed the lawyer to withdraw as soon as substitute counsel entered the case, and continued the jury trial to September 14, 2009.
On August 31, 2009, about 2 weeks before the scheduled trial, E. Jay Greeno entered his appearance as counsel for Coggs. Not surprisingly, Greeno immediately sought a continuance of the trial. The district court granted the motion and rescheduled the trial for March 29, 2010. The record generally indicates that the social service documents had been produced before Greeno entered the case. Coggs does not argue otherwise on appeal. During a conference call with counsel for both sides on November 23, 2009, the district court advanced the trial date to the first week of March 2010. On February 1, 2010, the district court held another telephone conference to set a hearing on the motions for psychological examinations and scheduled those motions for February 24, about a week before the trial setting.
At the hearing, Greeno told the district court he had not had the opportunity to review the social service records until the day before largely due to the press of other business including a major criminal case in federal court. Greeno, therefore, asked the district court to continue the jury trial because he was not and could not become adequately prepared in a week. The district court denied the motion.
The trial began as scheduled on March 1. Both A.B. and C.D., among other witnesses, testified. Coggs did not take the stand and offered only a single, brief witness during the defense case. The thrust of the defense seemed to be that had the allegations of A.B. and CD. been true, other patients or hospital staff would have realized what was going on. Greeno also elicited testimony from A.B. and CD. that they had psychological problems leading to their placement at the hospital, they were taking psychotropic medications then, and from time to time in other juvenile placements they had engaged in disruptive behavior or had deliberately broken rules to get transferred elsewhere in the system. The State relied largely on the overall credibility of A.B. and CD. and the plausibility of their version of the events. The prosecutor pointed out that neither A.B. nor CD. revealed their sexual encounters with Coggs until after they had been moved from the hospital, so they would not have made up the accounts to secure transfers. The jury chose to believe the State's explanation of the evidence.
The district court imposed a controlling sentence of 144 months in prison on Coggs. The particulars of that determination are not material to the issues on appeal. The district court also ordered that Coggs have no contact with A.B. and CD. upon his release from prison. That portion of the sentence is material. Coggs has timely appealed. We turn to the issues he has raised.
Issues on Appeal
Independent Psychological Examinations.
Coggs contends the district court erred in denying his request for independent psychological evaluations of A.B. and CD. The standards for getting such an evaluation are rigorous, as they should be. State v. Berriozabal, 291 Kan. 568, 581, 243 P.3d 352 (2010) (“[A] defendant is entitled to a psychological examination of a complaining witness on a showing of compelling circumstances ....”). The Kansas courts have discussed psychological examinations specifically with respect to the complaining witnesses in sex crime prosecutions. The Kansas Supreme Court has developed half a dozen criteria to guide trial judges in making the call on ordering an examination. 291 Kan. at 581;State v. Gregg, 226 Kan. 481, 490, 602 P.2d 85 (1979). The criteria consider the witness' demonstrable “mental instability” and “lack of veracity,” whether the witness has lodged false allegations of sexual abuse against other persons, and indicators the witness may have an unusual understanding of “what it means to tell the truth.” Berriozabal, 291 Kan. at 581. The court may consider evidence corroborating the victim's accusations against the defendant. If the defense request looks to be a “fishing expedition,” the trial court may weigh that against allowing the examination. 291 Kan. at 581. In Berriozabal, the court also cautioned that an “allegation of mental instability does not support the ordering of a psychological evaluation absent some real evidence.” 291 Kan. at 581. The decision on a request for psychological evaluation rests in the trial court's sound discretion. Gregg, 226 Kan. at 489.
In this case, Coggs submitted that both A.B. and CD. had been clinically diagnosed as bipolar and were being treated during the time they were at the Kaw Valley Children's Center. But, even assuming the accuracy of that representation, Coggs introduced no evidence to suggest persons suffering from bipolar disorder are any less credible than the population at large because of that condition. Accordingly, the diagnosis alone cannot justify an independent psychological examination. An examination might be warranted if a victim suffered from an illness impairing his or her ability to accurately perceive or recall events or disposed him or her to tell falsehoods. But that case is not this case. While both A.B. and C.D. had demonstrable behavior problems—they appeared to chronically challenge and violate institutional rules to secure changes in their placements—those problems did not reflect dishonesty or disordered thinking. To the contrary, those actions demonstrated a sound understanding of their environment and the entirely rational use of certain behaviors to attain causally related objectives. Their efforts should not be condoned. But those actions would not justify psychological examinations. They might be fodder for cross-examination, as Greeno used them here. But that line of questioning necessarily proved to be limited, since neither A.B. nor CD. could have intended their accusations against Coggs as a ploy to leave the hospital. As we have noted and as the prosecutor reminded the jury, they had already been moved when they revealed that information.
Nothing in the record demonstrated that either A.B. or CD. had made false accusations of sexual misconduct on other occasions. CD. had reported that a male foster parent had touched her in a sexual manner and made her buy provocative clothing. Social service personnel could not verify those allegations, but neither were they ever formally determined to be false. In a report, one social worker expressed doubt about C.D.'s allegations concerning the foster parent. C.D.'s accusations against her foster parent might not have been admissible at trial. See State v. Barber, 13 Kan.App.2d 224, 226, 766 P.2d 1288 (1989).
About a year after disclosing her allegations against Coggs, CD. indicated on an intake form at another juvenile facility that she had never been the victim of a crime. That statement is, at best, ambiguous. It might have been a point to be made in the cross-examination of CD. at trial and probably could have been used for that purpose.
Admissibility at trial, however, is not the test for information supporting an independent psychological examination. By the same token, inadmissible assertions, by their nature, often will be less persuasive than what would be admissible evidence. The circumstances Coggs presented at the hearing failed to justify an independent psychological examination of C.D., since they did not demonstrate past falsehoods about sexual abuse. And such a demonstration, even if made, would be one of several factors for the district court to consider.
Both A.B. and C.D. appeared to appreciate the difference between truth and falsity and to understand the significance of an oath or affirmation to tell the truth. Again, nothing in the record indicates otherwise.
The district court permitted discovery of the social service records and clinical histories of A.B. and C.D. to allow counsel for Coggs to explore all of those issues. But having been provided those records, the lawyers could not develop substantive evidence supporting the criteria for independent psychological examinations. Under those circumstances, the motions start to look every much like the “fishing expeditions” the Kansas Supreme Court warned against. An independent psychological examination then becomes more a tool for potential intimidation of a victim, who may be fearful that highly personal and possibly embarrassing information wholly unconnected to the full and fair prosecution of the charges may seep into the public record. And that is a compelling reason for the district court to confine such intrusive measures to the exceptional cases in which there are demonstrable reasons supporting that intrusion.
About the only factor weighing in Coggs' favor was the lack of independent corroborating evidence supporting the accusations A.B. and C.D. leveled against him. But the absence of such evidence cannot override the other factors that point against allowing the independent examinations here. A.B. and C.D. came forward months after the unlawful contacts occurred, eliminating any possibility of obtaining biological evidence or other physical evidence. The delay also curtailed the likelihood of finding witnesses who might have recalled seeing Coggs in the company of A.B. or C.D. under circumstances that could be unusual or inconsistent with his professional duties yet not so out of place as to immediately sound alarm bells. If the circumstances here were sufficient, a defendant could obtain an independent psychological examination whenever the victim of a sex offense lacked corroborating evidence or delayed reporting the crime. But that alone does not satisfy the especially strict burden the Kansas Supreme Court has placed on a defendant seeking an independent psychological examination of the putative victim in a sex crime.
Moreover, on appeal, a defendant must demonstrate the district court abused its discretion in denying the motion. That itself imposes a stringent standard. A district court may be said to have abused its discretion if the result it reaches is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). In other words, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the court fails to consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A trial court errs in that way when its decision “ ‘goes outside the framework of or fails to properly consider statutory limitations or legal standards.’ “ 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 [2007] ). Finally, a trial court may abuse its discretion if a factual predicate necessary for the challenged judicial decision lacks substantial support in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011) (outlining all three bases for an abuse of discretion).
Here, the district court considered and applied the factors the Kansas Supreme Court has identified for allowing an independent psychological examination, and the evidence (or more accurately the lack of evidence) supported the district court's assessment of those factors. We have little difficulty concluding other district courts would have come to the same conclusion and denied the motions. Coggs has failed to demonstrate an abuse of discretion. Trial continuance.
At the end of the hearing on the motions for the independent psychological examinations, about a week before the scheduled jury trial, Greeno asked the district court for another continuance of the trial because he had not fully reviewed the social service information produced on A.B. and CD. Greeno never stated how long a continuance might be required. The district court denied that request. A district court's ruling on a trial continuance generally will be reviewed for abuse of discretion. State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007); State v. Ly, 277 Kan. 386, 389, 85 P.3d 1200,cert. denied541 U.S. 1090 (2004).
The precise standard guiding that discretion is less than clear in this case. Coggs cites no case authority beyond the abuse-of-discretion standard itself. The prosecution points to State v. Anthony, 257 Kan. 1003, 1019, 898 P.2d 1109 (1995), formulating a five-factor test for continuances when a criminal defendant seeks a change in counsel. In that case, the defendant retained a lawyer several weeks before his murder trial had been scheduled to start. The new lawyer said he would need a 2–month continuance to adequately prepare. The district court denied the request. The court found no abuse of discretion after considering: “(1) whether a continuance would inconvenience witnesses, the court, counsel, or the parties; (2) whether other continuances have been granted; (3) whether legitimate reasons exist for the delay; (4) whether the delay is the fault of the defendant; and (5) whether denial of a continuance would prejudice the defendant.” 257 Kan at 1019 (citing United States v. Kelm, 827 F.2d 1319, 1322 n.2 [9th Cir.1987] ).
Here, however, the stated reason was not so much a switch in lawyers as it was counsel's asserted lack of time to assimilate documentary information during a 6–month period before trial. In Ly, the Kansas Supreme Court held that the Anthony factors were inapplicable to a requested continuance to deal with evidence the prosecution disclosed shortly before trial. Ly, 277 Kan. at 391. In that situation, the court considered defense counsel's failure to review and investigate the evidence at all in the available time and found no abuse of discretion in the district court's denial of a continuance on the eve of trial to do so. 277 Kan. at 390–91. But this is not a case involving the late disclosure of evidence either. The social service histories of A.B. and CD. had been assembled and produced before Greeno entered the case.
In the main, however, the continuance issue seems to have more in common with a late disclosure of evidence than with a defendant's desire to switch lawyers shortly before trial. Although the disclosure here wasn't late in any conventional sense, Coggs' lawyer disclaimed a fair opportunity to deal effectively with the evidence, reflecting fundamentally the same problem. But the State turns to Anthony to address Coggs' arguments, and we will follow that lead. The Anthony factors impose more rigor and constraint on the district court's exercise of discretion than does the generic standard approved in Ly and, therefore, favor the defendant in any event. See Ward, 292 Kan. 541, Syl. ¶ 3 (court abuses its discretion in failing to adhere to governing legal standards).
As provided in K.S.A. 22–3401, “[a]ll persons charged with crime shall be tried without unnecessary delay.” And there are significant direct and indirect societal interests in the expeditious resolution of criminal proceedings. See Barker v. Wingo, 407 U.S. 514, 519–21, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). At the same time, those considerations must be balanced against a criminal defendant's constitutional rights to the effective assistance of counsel and to due process. See Anthony, 257 Kan. at 1019.
As outlined earlier, the March 2010 trial setting was just over 4 years after this case had been filed. Coggs had gone through a series of lawyers and had entered and withdrawn a plea. Although the district court made no finding that Coggs had engaged in a ploy to drag out the proceedings and we certainly do not, the delay at the trial level had been remarkable. Delays measured in years almost invariably have a deleterious impact on the truth-seeking function of the trial process. Witnesses may be lost and memories commonly become clouded. In any given case, the resulting erosion in the quantity and quality of the available evidence typically would handicap one side more than the other. But reliably measuring that effect is almost impossible. Across the run of cases, the State arguably would be adversely affected more often as the party bearing the burden of proving a defendant guilty beyond a reasonable doubt.
With those general considerations in mind, we turn to the Anthony factors. The first factor looks at the inconvenience to the parties, the witnesses, counsel, and the court. The case had been set for trial and continued several times over several years. The overall course of the case was at the very least inconvenient for A.B. and C.D., both as witnesses and victims. The State would have been inconvenienced in yet again having to locate and subpoena witnesses. Coggs did not face similar difficulties, given the limited scope of evidence he presented. That factor is at best a wash and probably falls against Coggs to some extent, especially in context with the circumstances bearing on the other considerations.
The case had been frequently continued to accommodate Coggs' succession of lawyers and the flip-flop on his plea. Those delays weigh heavily against Coggs. The reason for the last requested continuance doesn't present a compelling consideration. Nobody suggests Greeno concocted a reason in the sense that he actually had looked at the materials and simply said otherwise to seize a perceived tactical advantage from another continuance. And we certainly do not imply any such dissembling. But Greeno had something approaching 6 months to review the social service records. And in mid-November 2009, he knew that the trial date had been moved from the end of March 2010 to the beginning of that month.
Greeno cited only other legal work as the reason for his failure to thoroughly review the documents. But trial lawyers must prioritize their caseloads and avoid taking on too many time consuming tasks simultaneously. At some point, a crowded calendar cannot suffice as a reason for delaying what must be accomplished. This is not a situation in which one side “dumped” voluminous documents on the other at the last minute. Nor was this a situation in which an unforeseeable external emergency arose, such as the death of an immediate family member or a serious medical condition.
By waiting until a week before trial to raise the issue at all, Greeno only compounded the problem and intensified the negative effects. He must have known well before then that he had not gotten to the documents, but he did not request an extension in late December or early January, when it might have been more easily accommodated. We don't mean to suggest the timing of the request alone proved dispositive or that the district court would have abused its discretion in denying an earlier request. Under the actual circumstances, however, while the stated reason for Greeno's request may have been genuine, the district court could fairly conclude it was not legitimate within the meaning of the Anthony factors.
The request for the continuance does not appear to have been the fault of Coggs and that weighs in his favor. On appeal, Coggs demonstrates no material prejudice to his case flowing from the denial of the continuance. He has not, for example, pointed to information in the social service records that Greeno failed to uncover and that could have been put to some effective use at trial in challenging A.B.'s and C.D.'s accounts of the crimes.
In sum, we do not find the district court stepped outside the Anthony factors in evaluating Greeno's request for a trial continuance, assuming those factors to be applicable at all. Given the previous delays in the case, the lateness of the request relative to the trial setting, and the stated reason for the continuance, we conclude other district courts would have ruled the same way. The district court, therefore, did not abuse its discretion in declining to continue the trial. Sentencing Issues.
As part of the sentence imposed on Coggs, the district court ordered that he have no contact with A.B. and C.D. after his release from prison. The State concedes a district court has no legal authority to enter a no-contact order applicable to a convict after he or she has served a sentence of incarceration. The concession is well taken. State v. Post, 279 Kan. 664, 669, 112 P.3d 116 (2005) (statutes governing sentencing do not permit imposition of no-contact order as part of a punishment including incarceration). We, therefore, vacate the no-contact order.
Finally, Coggs contends the district court improperly considered his criminal history in imposing sentence. He argues that the district court's use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by the jury. He relies on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support that proposition. Coggs also acknowledges the Kansas Supreme Court has rejected that argument and has found the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution with respect to the use of a defendant's past convictions in determining a presumptive statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We, therefore, decline Coggs' invitation to rule otherwise, especially in light of the Supreme Court's recent reaffirmation of Ivory. State v. Peppers, 294 Kan. 377, 379, 276 P.3d 148 (2012).
Affirmed in part and sentence vacated in part.