Opinion
110,562.
05-15-2015
STATE of Kansas, Appellee, v. Christopher DALE, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher Dale appeals his convictions of two counts of aggravated robbery and one count of theft. Dale claims: (1) the district court committed reversible error by giving legally incorrect jury instructions on aggravated robbery; (2) the district court committed reversible error by refusing to give his requested jury instructions on general criminal intent and ignorance or mistake of fact; (3) he was denied a fair trial based on prosecutorial misconduct during closing argument; (4) the district court violated his constitutional rights by sending the admitted exhibits to the jury room during deliberations; and (5) the district court erred by finding that Dale had not received ineffective assistance of counsel. We agree with Dale that the district court committed reversible error by giving legally incorrect jury instructions on aggravated robbery; thus, we reverse those convictions and remand for a new trial. On all other issues, we affirm.
Factual and Procedural Background
On August 29, 2009, Adam Litchkowski was at Two Trails Skate Park (the park) skateboarding with his cousin, Austin Mora, and his friend, Kyle Shellack, when Drake Rickerson approached them and attempted to sell them an iPod. Litchkowski, Shellack, Mora, and Rickerson were all teenagers at the time. Litchkowski and Shellack began teasing Rickerson and making fun of him, which made Rickerson angry. Rickerson wanted to fight Shellack, but when Shellack would not fight him, Rickerson walked away. Litchkowski and Shellack remained sitting, and Mora went off to skate and listen to music on his headphones. Litchkowski's cell phone and iPod, Shellack's cell phone, and Mora's cell phone were on the ground beside Litchkowski and Shellack.
As Rickerson walked away from the other boys, he called his cousin, Megan Clark. Rickerson lived with Clark and their grandfather, Gayle Rice, in Rice's apartment. Clark's boyfriend, Dale, was staying there temporarily as well. Dale, who was in his early 20s at the time, was with Clark when Rickerson called, so Dale heard Rickerson describe being teased by the other boys. Angry that the boys were picking on Rickerson, Dale grabbed a BB gun before he and Clark left the apartment to drive to the park.
When Clark and Dale arrived at the park, Clark parked at a Pizza Hut next to the park and waited in the car. Dale walked over to the park and talked to Rickerson, who pointed out Litchkowski and Shellack as the boys who had picked on him. Rickerson later testified that he told Dale that he wanted to fight Litchkowski and Shellack, but they had refused to fight. Rickerson also testified that he and Dale talked about the cell phones on the ground behind Litchkowski and Shellack, and Dale and Rickerson decided to rob the boys. According to Dale, however, there was no discussion about taking cell phones; Rickerson merely identified the boys that had been picking on him.
Dale walked over to where Litchkowski and Shellack were sitting. Mora was still away skateboarding. Dale immediately shoved Litchkowski's head down and put a BB gun to his head. When Shellack stood up, Dale put the gun in Shellack's chest. Shellack later testified that he saw Rickerson grabbing the cell phones and iPod, then Dale hit him in the head with the gun, and Dale and Rickerson ran away. Litchkowski testified that he saw both Rickerson and Dale taking their cell phones and iPod and that he saw them running away with the belongings. According to Litchkowski, Dale said, “[y]ou just got jacked,” which meant he had been robbed. Likewise, Shellack heard Rickerson or Dale say, “ ‘You got jacked, fool,’ “ but he did not know who was speaking.
At that point, Mora, who had been skating, looked over and saw two males running away from Litchkowski and Shellack. He believed one of the males was Rickerson, but he was not sure. When Mora went over to Litchkowski and Shellack, he realized his cell phone was gone. Litchkowski's cell phone and iPod and Shellack's cell phone were gone, too. Litchkowski located another phone and called the police.
Meanwhile, Dale and Rickerson ran back to Clark's car and she drove them back to the apartment. Clark testified that they did not discuss what happened at the park during the drive. Once they were back at the apartment, Rickerson told Clark that Dale had hit a guy to protect Rickerson and then Rickerson and Dale had run. Clark later testified that Rickerson subsequently sent her a text message telling her that he had taken some things from the kids at the park and asking her not to tell Dale because Rickerson wanted to sell the items to Dale. Rickerson was concerned that Dale would not pay for the items if he knew Rickerson had taken them from the park. Clark stated that Rickerson told her that he took the items while Dale was fighting. According to Rickerson's later testimony, however, he and Dale told Clark that they had just robbed some people; they showed her the stolen items and went to the apartment to divide the items among themselves.
Back at the park, Officer Nathan Silkett of the Olathe Police Department talked to Litchkowski, Shellack, and Mora. The boys told Silkett what had happened and described the two suspects. Officer John Van Unen also was at the park and learned from witnesses that one of the suspects was Clark's boyfriend. Van Unen had prior contact with Clark and knew where she lived, so he decided to go to her apartment to investigate the crime.
Van Unen and Officer Brian Little met at Clark's apartment. Clark came out the front door to meet with the officers. Clark told Van Unen that she and Rickerson were the only ones in the apartment and had not left the apartment that night. Rickerson also came outside the apartment and confirmed that story. Clark again denied that anyone else was in the apartment, and Rickerson denied knowing anyone named Chris Dale.
A few moments later, Little saw a person pacing in front of the window inside the apartment. Dale pulled the blinds partially aside, put his right hand on the windowsill, stuck his head out the window, and looked around, eventually making eye contact with Little. The officers ordered Dale to come out of the apartment at which point they placed him into custody. Detective Ed Drake later searched the apartment, after obtaining consent from both Clark and her grandfather, Rice. In Rice's bedroom closet, Drake found Mora's cell phone, Litchkowski's cell phone, Shellack's cell phone, and two iPods, one of which belonged to Litchkowski.
The State ultimately charged Dale with two counts of aggravated robbery and one count of theft. The State also charged Rickerson, but he negotiated a plea deal in part based on his agreement to testify at Dale's trial.
Dale's jury trial began on March 7, 2011. The State presented testimony from Litchkowski, Shellack, Mora, Rickerson, and several law enforcement officers. In his defense, Dale presented Clark's testimony and testified on his own behalf. Dale admitted that he was at the park, that he had threatened the boys, and that he had hit Shellack with the BB gun, but he denied knowing anything about the stolen items until after he was arrested. The jury found Dale guilty as charged.
Dale filed various posttrial motions, including a pro se motion alleging ineffective assistance of trial counsel. The district court appointed new counsel to represent Dale and held an evidentiary hearing on the motion alleging ineffective assistance of counsel. After hearing evidence and arguments of counsel, the district court denied all posttrial motions. The district court sentenced Dale to 92 months' imprisonment for the first aggravated robbery conviction, a consecutive 61 months' imprisonment for the second aggravated robbery conviction, and a consecutive 365 days in jail for the theft conviction. Dale timely appealed the district court's judgment.
Jury Instruction on Aggravated Robbery
Dale first argues that the district court committed reversible error by giving jury instructions that incorrectly defined the offense of aggravated robbery. Dale contends that the language of the instructions allowed the jury to find him guilty of both counts of aggravated robbery even if the jury found he did not intend to take property from the victims. In response, the State argues that when the jury instructions are considered as a whole, they accurately instructed the jury on the findings required to convict Dale of aggravated robbery. In addition, the State asserts that even if the jury instructions were erroneous, they were not clearly erroneous and do not require reversal.
The district court instructed the jury in Instruction 11 as follows:
“The defendant is charged in count 1 with the crime of aggravated robbery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant and/or his accomplice intentionally took property from the person or presence of Adam Litchkowski; and
“2. That the taking was by force or by threat of bodily harm to Adam Litchkowski; and
“3 That the defendant was armed with a dangerous weapon; and
“4. That this act occurred on or about the 29th day of August, 2009, in Johnson County, Kansas.
“An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and which the victim reasonably believed to be a dangerous weapon.” (Emphasis added.)
Similarly, Instruction 12 stated that the State had to prove “[t]hat the defendant and/or his accomplice intentionally took property from the person or presence of Kyle Shellack.” (Emphasis added.) Dale's entire theory of defense to the aggravated robbery charges was that although he threatened Litchkowski and Shellack with a BB gun, he had no knowledge that Rickerson grabbed the iPod and cell phones laying on the ground before Dale and Rickerson ran away. Dale argues that the italicized language of the aggravated robbery jury instructions erroneously instructed the jury to convict him even if the State only proved that Rickerson, not Dale, intentionally took the property.
As the State notes, although Dale objected in the district court to the jury instructions he challenges on appeal, he did so on different grounds. At the jury instruction conference outside the presence of the jury, the district court went through each instruction that the court intended to give and asked both parties if there were any objections. On jury instructions 11 and 12, defense counsel objected only to the “final paragraph defining a dangerous weapon.” Dale never articulated an objection to the language he now challenges on appeal, and the district court had no opportunity to rule on this argument. Based on the record, we consider Dale's argument about the jury instructions on aggravated robbery as being raised for the first time on appeal, and we review for clear error. See State v. Gleason, 299 Kan. 1127, 1152, 329 P.3d 1102 (2014).
“The application of [the clear error] standard consists of two parts. ‘First, “the reviewing court must ... 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.” ‘ [Citation omitted.]
“ ‘If error is found, then the second part is considered, i.e ., the clearly erroneous analysis moves to a reversibility inquiry and
“ “ ‘the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.’ “ [Citation omitted.]” State v. Brown, 300 Kan. 542, 554–55, 331 P.3d 781 (2014).
Dale argues that instructions 11 and 12 were legally inappropriate. Dale contends that the language “the defendant and/or his accomplice intentionally took property” in the aggravated robbery instructions allowed the jury to find him guilty of these crimes even if it was convinced that only Rickerson intended to take the property. Dale argues that the instructions were legally inappropriate because to properly convict him of aggravated robbery, the jury had to find that he had the requisite intent to take the property.
The State points out that the district court also instructed the jury on aiding and abetting. The district court instructed the jury in Instruction 10 as follows:
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels, or procures another to commit a crime with the intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
The State argues that when considered as a whole, the jury instructions fairly and accurately instructed the jury that in order to find Dale guilty of aggravated robbery, the jury had to find beyond a reasonable doubt that Dale either participated directly and intentionally in the aggravated robberies or that he intentionally aided and abetted Rickerson in committing the aggravated robberies.
The use of Pattern Instructions for Kansas (PIK) is recommended because the instructions were developed to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. However, if the particular facts of a given case require modification of the applicable pattern instruction or the addition of some instruction not included in the PIK, the district court should not hesitate to make such modifications or additions. State v. Burton, 35 Kan.App.2d 876, 879–80, 136 P.3d 945, rev. denied 282 Kan. 792 (2006). Dale was charged with crimes committed in 2009 and his trial was held in 2011. Thus, the district court used instructions from PIK Criminal, Third Edition (2010) at Dale's trial.
Here, it appears that the district court was attempting to modify the aggravated robbery elements instruction to fit the State's theory that Dale was being charged as an aider and abettor. The Burton case provides a good example of the proper way for the district court to make such a modification. In Burton, the defendant was charged with aggravated robbery as an aider and abettor. The district court instructed the jury that in order to establish the charge of aggravated robbery, the State had to prove “ ‘[t]hat the defendant, or another for whose conduct he was criminally responsible, intentionally took property from the person or presence of [the victim].’ “ 35 Kan.App.2d at 879.
On appeal, this court found that under the facts of the case, the district court's modification of the elements instruction on aggravated robbery, when given in conjunction with the aiding and abetting instruction at PIK Crim.3d 54.05, clarified to the jury that the defendant was being charged as an aider and abettor rather than as a principal actor in the crime, and the instructions were not erroneous. 35 Kan.App.2d 876, Syl. ¶ 3. By using this language, the district court properly instructed the jury that in order for the defendant to be guilty of aggravated robbery, the jury must find that either the defendant or an accomplice intentionally took property from the victim, but only if the defendant was criminally responsible for the actions of the accomplice. 35 Kan.App.2d at 879–81 ; see PIK Crim.3d 54.05 (a person who, either before or during its commission, intentionally aids or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed ).
Here, the district court's attempt to modify the aggravated robbery elements instruction fell short of properly instructing the jury what the State needed to prove in order for the jury to find Dale guilty of aggravated robbery. Under the instruction given by the district court, the jury could find Dale guilty of aggravated robbery even if the jury was convinced that only Rickerson intended to take the property and even if the jury did not find that Dale was criminally responsible for Rickerson's conduct. In other words, the jury could find Dale guilty of aggravated robbery even if the jury concluded that Dale did not have any intent to take property from Litchkowski and Shellack. In order to find Dale guilty of aggravated robbery, the jury only had to find that Rickerson intentionally took property from the person or presence of Litchkowski and Shellack. We agree with Dale that jury instructions 11 and 12 were not legally appropriate and constituted error.
The question then becomes whether the jury instructions were clearly erroneous in order to require reversal of Dale's aggravated robbery convictions. The State correctly points out that the district court properly instructed the jury on aiding and abetting. But we are not convinced that the correct jury instruction on aiding and abetting cured the problem caused by the erroneous instructions on the elements of aggravated robbery. Dale's entire defense was that, although he threatened Litchkowski and Shellack with a BB gun, he had no knowledge that Rickerson grabbed the cell phones and the iPod and that he never agreed or intended to assist Rickerson in taking the property. There was evidence at the trial from the testimony of both Dale and Clark that supported Dale's theory of defense. But the way in which the jury was instructed, the jury could find Dale guilty of aggravated robbery even if the jury concluded that Dale had no intent to take property from Litchkowski and Shellack, and even if the jury was not convinced that Dale aided or abetted Rickerson to commit the crime.
Apparently the jury was confused by the elements instructions on aggravated robbery because during deliberations, the jury sent out a written question requesting “clarification on element one, specifically and/or. Does this mean either defendant or accomplice or both.” After discussing the matter with counsel, the district court brought the jury into the courtroom and responded, “My answer simply means and/or means and/or. It is in common parlance, and I don't know that I can give you any further definition other than what is commonly understood as and/or.” We agree with Dale that the jury's question shows that the language used in the instructions confused the jury and that the district court's response reinforced the erroneous instructions.
The burden is on Dale to establish clear error requiring reversal of his convictions. Brown, 300 Kan. at 555. But because the district court's jury instructions on aggravated robbery completely undercut Dale's defense, we are firmly convinced that the jury could have reached a different verdict had the instruction error not occurred. Dale had absolutely no chance of being found not guilty of the two counts of aggravated robbery based on the way the jury was instructed. Thus, we conclude that the jury instructions were clearly erroneous, and we reverse Dale's convictions of aggravated robbery and remand for a new trial on those charges.
Jury Instructions on General Criminal Intent and Ignorance or Mistake of Fact
Next, Dale contends that the district court committed reversible error by refusing his request to instruct the jury on general criminal intent and ignorance or mistake of fact. The State responds that the general intent instruction was not necessary and would not have been helpful to the jury and that an instruction on ignorance or mistake of fact was inapplicable because Dale was charged with general intent crimes.
“When this court reviews appellate claims on jury instructions,
“ ‘the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied [––– U.S. ––––,] 132 S.Ct. 1594 (2012).’ [Citation omitted.]
“ ‘Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory. [Citation omitted.] And if that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant. [Citation omitted.]’ [Citation omitted.]
“We examine ‘jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.’ [Citation omitted.]” State v. Hilt, 299 Kan. 176, 184–85, 322 P.3d 367 (2014).
In his initial proposed jury instructions, Dale included “Instruction No. F,” which stated: “In order for the defendant to be guilty of the crimes charged, the State must prove that his conduct was intentional. Intentional means willful and purposeful and not accidental. Intent or lack of intent is to be determined or inferred from all of the evidence in the case.” Dale also proposed “Instruction No. G,” which stated: “It is a defense in this case if by reason of ignorance or mistake the defendant did not have at the time the mental state which the statute requires as an element of the crimes.” The district court refused to give either requested jury instruction.
Dale's instruction F—the proposed general criminal intent instruction—was modeled after PIK Crim.3d 54.01–A. As Dale points out, the Notes on Use for that instruction direct that “[t]his instruction should be used only where the crime requires only a general criminal intent and the state of mind of the defendant is a substantial issue in the case.” Aggravated robbery is a general intent crime. State v. Edwards, 299 Kan. 1008, Syl. ¶ 2, 327 P.3d 469 (2014). Additionally, as Dale argues, his state of mind was a substantial issue in the case, as his theory of defense was that he neither intentionally took items from the victims nor intentionally aided or abetted Rickerson in doing so. Thus, Dale is correct that the proposed jury instruction on general criminal intent would have been legally appropriate as to the aggravated robbery charges.
But Dale fails to acknowledge that he also was charged with theft. Unlike aggravated robbery, theft is a specific intent crime. See Edwards, 299 Kan. at 1012. Therefore, as to the theft charge, Dale's proposed jury instruction on general criminal intent would not have been legally appropriate. Jury instructions may be tailored to be legally appropriate for the case in which they are given. Cf. State v. Brown, 295 Kan. 181, 203, 284 P.3d 977 (2012) (urging parties to tailor jury instructions to the proof in a given case). Here, defense counsel failed to tailor the general criminal intent instruction to read that the instruction would have been applicable only to the aggravated robbery charges.
Dale's instruction G—the proposed instruction on ignorance or mistake of fact—was modeled after PIK Crim.3d 54.03. We note that the Notes on Use for that instruction indicate that if the instruction on ignorance or mistake of fact is given, the instruction at PIK Crim.3d 52.08 on affirmative defenses also must be given. Dale failed to request a jury instruction on affirmative defenses. For this reason alone, Dale's requested instruction on ignorance or mistake of fact was not legally appropriate.
In any event, there is no reasonable possibility that the failure to give either of Dale's requested instructions affected the outcome of the trial. Regarding the general criminal intent instruction, it is doubtful that a layperson's understanding of intent would differ from the definition given in the instruction. Jurors likely understand the difference between intentional and accidental conduct, and the failure to expressly instruct a jury on that definition does not create a reasonable possibility that the jury would have acquitted Dale had it been so instructed. Also, the failure to give a jury instruction on ignorance or mistake of fact did not prevent Dale from asserting his theory of defense. Thus, any error in refusing to give the instructions was harmless. See State v. Ward, 292 Kan. 541, 565–66, 256 P.3d 801 (2011) (to find harmless error, court must be able to declare error did not affect the trial's outcome).
Prosecutorial Misconduct
Next, Dale contends that prosecutorial misconduct denied his right to a fair trial. Specifically, Dale argues that the prosecutor's statement during closing argument characterizing the defense evidence as “a convenient story they are trying to make up” and the prosecutor's statement that the State's witnesses were “telling the truth” were misconduct. The State responds that the prosecutor did not commit misconduct and even if the statements were improper, it does not amount to reversible error.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must determine whether the improper comments compel reversal; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014).
During closing argument, the prosecutor stated:
“Now the defendant said there was no evidence or that [Rickerson] had the iPod in his pocket. There is no evidence. That's just a convenient story they are trying to make up. Everything was together. [Rickerson] testified that they hid it in [Clark's] room, when the only person left in the apartment is the defendant, that's when the items are used.
“The defendant, our evidence to refute his theory, the problems that he has in this case, Caleb Eisele, [Rickerson's] statement, [Litchkowski's] statement, [Shellack's] statements. They nitpick them, oh, this one said this, this one didn't say that. They are young. It's a year and a half ago. They have to be in shock from what happened and the adrenaline that is going. Do all these kids have a conspiracy against the defendant to convict him of these crimes[?]
“THE COURT: Thirty seconds.
“MS. RIEBLI: No, they are telling the truth.”
Our Supreme Court has held that it is improper for prosecutors to state their own personal opinions on witness' credibility. See, e .g., State v. Gleason, 299 Kan. 1127, 1177, 329 P.3d 1102 (2014). In State v. Knox, 301 Kan. ––––, Syl. 13, ––– P.3d ––––, 2015 WL 1591948 (2015), our Supreme Court stated that a “prosecutor's statements during closing argument that a witness was ‘brutally honest’ and ‘was on the stand telling you the truth’ state the prosecutor's personal opinion as to the credibility of a witness and are misconduct.” Such commentary is improper, unsworn, unchecked testimony. See State v. Bridges, 297 Kan. 989, 1013, 306 P.3d 244 (2013).
The prosecutor's statement of her personal opinion that the State's witnesses were “telling the truth” clearly constitutes misconduct. In the second step of the two-step analysis to determine if prosecutorial misconduct compels reversal, the appellate court considers three factors: (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078 (2014). Without engaging in extensive analysis, we conclude that the prosecutor's statements, although improper, do not require the reversal of Dale's convictions.
Sending Exhibits to the Jury Room During Deliberations
After closing argument, the district court stated: “All the exhibits that have been submitted here will be gathered up and taken back into the jury room for your consideration.” On appeal, Dale argues that his constitutional and statutory rights to be present at all critical stages of the trial, and his right to have the trial judge present at his trial, were violated when the evidence at trial was exhibited to the jury outside his presence. The State responds that Dale's failure to object in the district court bars him from raising this issue on appeal. In the alternative, the State contends that Dale's argument has no merit and that a subsequent statutory amendment expressly allows the jury to view admitted exhibits in the jury room during deliberations.
Dale did not object to the district court's procedure of sending the exhibits to the jury room during deliberations. Generally, issues not raised before the district court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Dale has not argued that his case meets any of the exceptions to the general rule that issues should not be addressed for the first time on appeal. See State v. McCullough, 293 Kan. 970, 998, 270 P.3d 1142 (2012). However, our Supreme Court recently has addressed similar claims for the first time on appeal. See State v. Bowen, 299 Kan. 339, 354–55, 323 P.3d 853 (2014). As such, we will address the merits of Dale's claim.
A defendant in a criminal case has the right to be present at all critical stages of the trial. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) ; State v. Herbel, 296 Kan. 1101, 1106, 299 P.3d 292 (2013). “That right emanates from the Sixth Amendment right to confront witnesses and from the right to due process guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution. [Citations omitted.]” State v. Davis, 284 Kan. 728, 731, 163 P.3d 1224 (2007).
In support of his argument that he was excluded from a critical stage of his trial, Dale cites to Herbel. In that case, the defendant was charged with various counts of sex crimes committed against a child. The defendant had given a videotaped interview to the police that contained highly incriminating admissions. At trial, the video recording of the interview was admitted into evidence. During deliberation, the jury asked to review portions of this video. The jury was brought into open court and portions of the video were replayed; however, the record failed to indicate that the defendant was present during the replay. From the silent record, the court presumed that the defendant's right to be present at a critical stage of the trial had been violated. The Herbel court noted:
“[K.S.A. 22–3420(3) ] also plainly mandates that the evidence ‘shall be ... exhibited to them in the presence of the defendant unless he voluntarily absents himself.’ (Emphasis added .) Consequently, where the jury has requested the officer conduct them to the court after deliberations began, the defendant has an absolute statutory right to be present when any evidence ‘is exhibited’ to the jury after deliberations began.” 296 Kan. at 1109.
Since Herbel was decided, the Kansas Legislature amended K.S.A. 22–3420. It now provides: “In the court's discretion, upon the jury's retiring for deliberation, the jury may take any admitted exhibits into the jury room, where they may review them without further permission from the court. If necessary, the court may provide equipment to facilitate review.” K.S.A.2014 Supp. 22–3420(c). The legislature expressed its intention that the amended statute should be applied retroactively. K.S.A.2014 Supp. 22–3420(f) states: “The amendments to this section by this act establish a procedural rule, and as such shall be construed and applied retroactively.” Thus, with this amendment and the legislature's clear expression that the change should be applied retroactively, Kansas law provides that the admitted exhibits may be sent into the jury room for review.
Here, there were numerous exhibits admitted into evidence at trial. The record reflects that these exhibits were sent with the jury to the jury room. Although the statutory law now provides that this procedure may be employed, Dale also is asserting a constitutional violation. Citing Herbel, Dale argues that the exhibition of evidence to the jury is a critical stage of the trial, and the jury should not have been allowed to review the evidence outside of his presence without an affirmative waiver.
Herbel is clearly distinguishable from the present case. In Herbel, the focus was on the district court's communication with the jury in open court. In making its ruling, our Supreme Court cited State v. Perkins, 248 Kan. 760, 811 P.2d 1142 (1991), which pointed out that a critical period of the trial “includes all times when the jury is present in the courtroom and whenever the trial court communicates with the jury [Citation omitted.].' (Emphasis added.)” Herbel, 296 Kan. at 1109. Here, the jury reviewed exhibits in the jury room without any additional communication from the district court. The jury was never brought back into the courtroom in order to review evidence presented during the trial. Thus, Dale's constitutional right to be present at all critical stages of the trial was not violated when the district court allowed the exhibits to go to the jury room.
Dale also contends that the procedure violated his constitutional right to have an impartial judge at all critical stages of his trial. Dale cites Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), to support this argument. However, Turney is distinguishable on many grounds. First, Turney does not discuss a right to an impartial judge at any critical stage of a trial; the phrase “critical stage” does not appear anywhere in Turney. Second, the right to an impartial judge in United States Supreme Court caselaw focuses on the impartiality of a judge, not his or her presence. For example, Turney addressed the impropriety of a judge presiding over a case in which the judge had a pecuniary interest in the outcome. 273 U.S. at 514–15. Dale has made no allegation that the district judge here was not impartial. Third, even if there is a constitutional right to have an impartial judge at critical stages of one's trial, the only description of “critical stage” that Dale gives is to assert, without citation, that “[a]ny time the court communicates with the jury is a critical stage of the trial.” As we previously noted, Dale's jury reviewed the exhibits in the jury room without any additional communication from the district court. Under Dale's definition, this was not a “critical stage” of his trial that would invoke his claimed right to an impartial judge. Thus, Dale's argument on this point fails.
Ineffective Assistance of Counsel
Finally, Dale contends that the district court committed reversible error by rejecting his claim that he received ineffective assistance of trial counsel. This issue was addressed in district court through Dale's posttrial motion alleging ineffective assistance of trial counsel. The district court rejected the claim after appointing new counsel to represent Dale and conducting an evidentiary hearing on the motion.
Although Dale offered many examples of ineffective assistance in the district court, on appeal he points only to defense counsel's alleged failure to adequately investigate potential defense witness Michael Fielding and counsel's failure to present Fielding's testimony at trial. Accordingly, Dale has waived his other complaints. See Bowen, 299 Kan. at 355–56 (an issue not briefed by the appellant is deemed waived and abandoned). The State responds that defense counsel's actions were the result of sound trial strategy and did not constitute ineffective assistance. In the alternative, the State asserts that any ineffective assistance rendered was not prejudicial.
In his pro se motion alleging ineffective assistance of counsel, Dale asserted that he asked his trial counsel, Michael Bartee, to call Fielding as a defense witness but Bartee failed to do so. Fielding is Clark's father and Rickerson's uncle, and Fielding had told Dale that he received a phone call from Rickerson in which Rickerson said that Dale did not know about the stolen items and had nothing to do with taking them. At the hearing, Dale introduced into evidence a notarized letter Fielding sent to Bartee. However, the letter is not included in the record on appeal.
Bartee testified at the hearing. When asked why he did not call Fielding to testify, Bartee stated:
“Apparently Mr. Dale and Mr. Fielding were in jail together which I think was the basis for this letter discussing the case. The letter seemed just—it had some benefit which would be that it would be kind of consistent with the theory that Dale didn't know what happened and that Rickerson had done this on his own. There was a huge down side to this, which was the fact that apparently Fielding and Dale had discussed the case, and Fielding coming forward with it.
“And as in the letter, Fielding is telling Rickerson this better not be stolen, you better not be getting me in trouble. It didn't make sense to me that Rickerson would be relaying the details of this robbery or this crime or this fight to someone to tell him this is stolen property I'm trying to sell you. That just—that was nonsensical to me that someone who is kind of an authority figure that a kid is trying to sell stolen property to is going to tell that guy that this is stolen as the guy is telling him it better not be stolen, you better not be getting me in trouble. And then from there that Rickerson for some reason volunteers that the other guy didn't know about this. It didn't sound right to me. And I saw a huge downside to us presenting this because we would have to vouch for this letter and this witness. It did not strike me as something that was going to help the defense.
“The other issue with it was it was somewhat inconsistent with what [Clark's] testimony was because [Clark] had said Rickerson showed her the stuff and said, ‘Don't tell Chris about this. I want to sell these to him.’ It didn't make sense to me that at the same time he is doing that, he is contacting another adult person to try to sell the same property to within about, you know, the hour or hour and a half after this crime.
“So it just struck me as something that was not going to fully fly with the jury and probably hurt us more than help us.”
After hearing the evidence and argument of counsel, the district judge ruled:
“Whether Mr. Fielding was called or not is really within the province of the trial attorney, the defense attorney. Calling a witness sometimes does more harm than it does good. Sometimes you open up a can of worms when you call witnesses, and it looks like you're trying to confuse things. It is within the sound discretion of Mr. Bartee as defense counsel whether to call a witness to the stand or not. Sometimes you have to decide is it good, is it bad which outweighs which. He decided not to call Mr. Fielding in this case....
“So I don't find that there was any fault here in Mr. Bartee's position.
....
“Looking back on the trial, I am comfortable with Mr. Bartee's representation. I think he was thorough, aggressive. I think he made the arguments. He was careful not to throw anything before the jury because to do so could cause more harm to his client's case than good. That is also a difficult call for a defense lawyer....
“In this case, Mr. Bartee was very careful in how he handled the evidence in the case. He is a skillful litigator, and I think he did an appropriate job here as best he could for Mr. Dale under the facts and circumstances of the case.
“So I'm going to deny the motions for post-trial relief, and the verdicts entered by the jury will stand.”
Dale contends that this ruling was erroneous because Fielding's testimony was crucial to support his theory of defense: that he did not know that Rickerson took the victims' property until well after the fact. Therefore, because the testimony was so important, Dale argues that Bartee's failure to investigate Fielding and present his testimony or the letter to the jury constituted ineffective assistance of counsel.
In State v. Burnett, 300 Kan. 419, 452, 329 P.3d 1169 (2014), the court stated:
“A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Consequently, appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts de novo. [Citation omitted.]
“To establish ineffective assistance of counsel, the defendant must establish (1) that counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and (2) that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. [Citation omitted.]
“Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of all the evidence before the judge or jury. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. [Citation omitted.] To establish prejudice, the defendant must show a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation omitted].”
We are hindered in our review of the district court's finding because Dale did not ensure that Fielding's letter was included in the record on appeal. See State v. Goodson, 281 Kan. 913, 919, 135 P.3d 1116 (2006) (stating that the party asserting error bears the burden to designate a record showing error in the district court). Since Fielding did not testify at the hearing on ineffective assistance of counsel, the letter is the best indicator of what his testimony might have been. Additionally, examining the letter would allow this court to better review the propriety of the district court's holding that Bailee's decision not to pursue Fielding's testimony was sound.
At the hearing, Bartee thoroughly explained the problems he saw with using Fielding as a defense witness or introducing the letter as an exhibit: credibility issues due to Fielding having been in jail with Dale, the implication that Fielding and Dale discussed Dale's case prior to Fielding writing the letter, inconsistencies between Clark and Fielding's testimonies, and whether the jury simply would disbelieve Fielding's information. As our Supreme Court has stated, “generally ‘[i]t is within the province of a lawyer to decide what witnesses to call ... and other strategic and tactical decisions.’ [Citations omitted.]” Sola–Morales v. State, 300 Kan. 875, 887, 335 P.3d 1162 (2014). Bartee's decision not to further investigate the plausibility of Fielding being a defense witness was reasonable considering Bartee's professional concerns about the help Fielding could provide the defense versus the harm he could do to the defense. Applying our deferential standard of review, we conclude the district court did not err in denying Dale's pro se motion alleging ineffective assistance of trial counsel.
In summary, after thoroughly reviewing each of Dale's claims on appeal, we affirm Dale's conviction of theft. Dale's convictions of two counts of aggravated robbery are reversed, and the case is remanded for a new trial on those counts.
Affirmed in part, reversed in part, and remanded with directions.