Opinion
No. 104,957.
2012-09-21
STATE of Kansas, Appellee, v. John S. DORAN, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
John Doran appeals from his convictions of unlawful discharge of a firearm and two counts of attempted second-degree murder. On appeal, Doran contends the following: (1) that the trial court erred when it allowed a witness to testify after that witness violated the court's sequestration order by communicating with another witness; (2) that the State committed prosecutorial misconduct during its closing argument when it commented on matters outside of evidence; and (3) that he was a denied his right to a speedy trial in violation of K.S.A. 22–3402. Finding no reversible error, we affirm.
On February 27, 2009, Ashley Jacobs was in her apartment in Johnson County, Kansas, when she overheard an argument between Doran and Keith Conners, Conner's apartment was located below Jacob's apartment at the complex. Conner testified at trial that Doran came to his apartment because he wanted to talk. Conner testified that he looked out his apartment window and saw Doran holding a pistol. Conner stated that he refused to leave his apartment or let Doran inside. Instead, Conner talked to Doran through the apartment door. Doran and Conner talked for approximately 2 1/2 minutes before Doran left.
After Conner and Doran's argument ended, Doran went to Jacobs' apartment to talk to Jacob's boyfriend, Chris Branham, who lived with Jacob. Branham's friend, Duron Flowers, was also at Jacobs' apartment. At trial, Flowers testified that Doran seemed to be upset, mad, and frustrated with Conner.
Later that day, Conner went to Jacobs' apartment to borrow Branham's cellular phone. Conner called his girlfriend's stepfather, Tommie White, and asked him if he would pick him up from the apartment. Conner testified that he wanted to leave the apartment because he was concerned about what could potentially happen between him and Doran. White agreed to pick up Conner and drove to the apartment complex. After Conner and White left the apartment complex, Conner realized that he still had Branham's cellular phone. White returned to the apartment complex so Conner could give Branham his phone. After Conner returned Branham's phone, he got back in White's car, and White started to leave the apartment complex. White, however, was unable to leave the parking lot of the complex because his path was blocked by a black sport utility vehicle (SUV). Doran was driving the SUV; he had an unidentified passenger with him. Eventually, the SUV pulled forward and White was able to go around it.
As White and Conner were leaving, several gunshots were fired at them from the passenger side of the SUV. Conner, who had a handgun with him, returned fire. After the shooting began, White tried to leave the apartment complex, but he mistakenly drove into a parking lot which had no exit. The SUV followed White, and more shots were fired at White's vehicle. Conner got out of White's car and ran away.
White called 911 and law enforcement officers were sent to the scene. The responding officers recovered several .38 caliber shell casings and one .40 caliber shell casing from the scene. Doran was taken into custody and charged with one count of unlawful discharge of a firearm and two counts of attempted second-degree murder. A jury convicted Doran of all three counts.
Did the Trial Court Err When It Allowed Flowers to Testify After He Violated the Court's Sequestration Order by Communicating With Another Witness?
Doran first argues that the trial court erred when it allowed Flowers to testify after a sequestration order was violated. On the other hand, the State argues that the trial court did not err because “[a] reasonable person would agree with Judge Davis' ruling in permitting the testimony of Duron Flowers.”
Before trial, the trial court granted Doran's sequestration request under his motion in limine. Flowers was endorsed as a witness and scheduled to testify for the State, but he was unavailable when Doran's trial began. After the first day of trial, Officer Brad Martens located Flowers. Flowers was then served with a subpoena and arrested. Unbeknownst to the parties, Officer Martens questioned Flowers about the alleged shootout between Doran and Conner when he served Flowers with the subpoena. Officer Martens' contact with Flowers violated the sequestration order because both Officer Martens and Flowers were endorsed as witnesses and scheduled to testify. In fact, Officer Martens—who was present in court during the first day of trial—expressly questioned Flowers about matters which Flowers later testified to at trial. Among other things, Officer Martens questioned Flowers about the direction Doran was travelling before the shootout occurred. Officer Martens' written report from his interview with Flowers stated the following:
“In his previous statement [Flowers] stated and showed me on the map that [Doran] had traveled from the north of Charles St. and was wait[ing] facing south for White/Conner to leave the no outer parking lot of 7802 Charles.... I asked him to reflect on this situation and referred to his statement recorded by Det. Pierce in that could [Doran] have traveled from the south. After a moment he commented that that made sense to him and he recalled seeing [Doran] drive from the south towards White's vehicle when blocking him.”
Once Doran's counsel found out about the contact between Flowers and Officer Martens, he argued that the court should preclude Flowers from testifying because of the violation of the sequestration order. The relevant portion of the transcript reads as follows:
“[DEFENSE COUNSEL:] Couple of different things extremely disturbing about the report that Detective Martens created. I'm not suggesting [the State] had any idea what Detective Martens was going to do.
“But two of the things that I find extremely troubling are, first, he goes over his testimony, and he's brought the previous police report with him. So this isn't the service of a subpoena under the idea that that's what he is there to do, is serve a subpoena and he's going to walk away. He went there to interview him about what his testimony was going to be. And when he started to do that, the witness in this case describes something that is contrary to what the testimony has been.
“And the detective writes in his report that he told him, ‘Why don't you stop and think about that and see if that makes sense.’ He is telling him how to testify in the case.
“... Mr. Flowers shouldn't be allowed to testify. His testimony is a violation of the sequestration order, of the motion in limine which wasn't objected to.... [Officer Martens] went over there, and he talked to him about what his testimony would be. And every time in his report that Mr. Flowers makes a mistake in his testimony, he fixes it for him. Every time he says something that's in line
“[THE COURT]: Can't you bring all that out on cross-examination, [defense counsel]?
“[DEFENSE COUNSEL]: Sure I can, but the Court ruled you can't go talk to him. Your witness, your witness don't go talk. And this witness sought him out and talked to him about what had been going on during the trial.”
The trial court ruled that Flowers would be able to testify, but that defense counsel would be allowed to cross-examine Flowers concerning the conversation he had with Officer Martens.
When a party alleges that an order in limine has been violated, the trial court must determine the following: (1) whether the order has been violated and, if so, (2) whether the party alleging the violation has established substantial prejudice resulting from that violation. State v. Crum, 286 Kan. 145, 160, 184 P.3d 222 (2008). Because the trial court is in the best position to determine whether a violation occurred and to determine the degree of prejudice any violation may have caused, the trial court's determination on these matters will not be disturbed absent a clear abuse of discretion. See 286 Kan. at 160. “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
At trial, sequestration is not a right but is committed to the sound discretion of the trial court.” Crum, 286 Kan. at 161. Moreover, “[v]iolation of a court order separating witnesses does not ordinarily disqualify a witness from testifying and the trial court, in its discretion, may admit the testimony.” [Citation omitted.] State v. Johns, 237 Kan. 402, 407, 699 P.2d 538 (1985). In fact, when a witness violates a sequestration order unbeknownst to the parties or their counsel, “the witness should be permitted to testify and it is only where the evidence shows that the party who desires to call the witness knew and participated in the violation of the [sequestration] order that the court should exclude the witness' testimony.” [Citation omitted.] 237 Kan. at 407.
Officer Martens' contact with Flowers violated the witness sequestration portion of the motion in limine. Thus, this court must determine whether Doran has shown that he suffered substantial prejudice from the violation. In his brief, Doran's argument on appeal primarily focuses on his alleged inability to cross-examine Flowers at trial: “[B]ecause of the nature of the information Martens shared with Flowers, it was impossible for defense counsel to fully cross-examine Flowers on his pre-testimony contact with Martens lest the jury be left with the impression that Doran had threatened Flowers and was, therefore, a violent man.” There is no indication, however, that Doran needed to question Flowers about his alleged fear of retribution from Doran's family before his cross-examination could be successful. Instead, Doran's cross-examination needed to alert the jury to Flowers' prior inconsistent statement, that is, that Flowers previously stated that Doran was travelling north, but he changed his story to state that Doran was travelling south. Alerting the jury to Flowers' prior inconsistent statement would have shown that Flowers was either lying or forgetful, which would have made the remainder of his testimony less believable. Doran's cross-examination did not require him to make any reference to Flowers' alleged fear of retribution. Thus, Doran has failed to show that the trial court's ruling caused him undue prejudice requiring his conviction to be reversed.
Moreover, the only difference between Flowers' original report to police and what he testified to at trial was the direction that Doran's vehicle was travelling before the shootout. For example, Flowers' original report stated that Doran was travelling north, although he later testified that Doran was travelling south. The direction that Doran's vehicle was travelling in this case was immaterial. Unless Flowers was extremely familiar with the area or carried a compass with him, it would have been easy for him to confuse the direction Doran's vehicle was travelling. The underlying facts of this case simply do not present a situation where the direction Doran's vehicle was travelling was material. In other words, Doran did not suffer prejudice under the brief violation of the sequestration order because his theory of defense did not rely on the direction that his vehicle was travelling. Instead, the defense urged the jury to find Doran was not driving the vehicle when the alleged shootout occurred. Indeed, during closing argument Doran's counsel stated the following: “The State has put on great evidence that the SUV belonged to Mr. Doran. The evidence to put Mr. Doran behind the wheel is lacking.” Finally, our Supreme Court has been reluctant to reverse a defendant's conviction where he or she sought reversal because of a sequestration violation. See e.g., Crum, 286 Kan. at 160–61;State v. Kirtdoll, 281 Kan. 1138, 1147–49, 136 P.3d 417 (2006); State v. Johnson, 258 Kan. 475, 491–92, 905 P.2d 94 (1995). Because Doran has failed to establish that he suffered substantial prejudice resulting from the sequestration violation, his argument fails.
Did the Prosecutor Commit Prosecutorial Misconduct During Its Closing Argument?
Doran next argues that his conviction must be reversed because the State committed prosecutorial misconduct when it commented on matters outside the evidence. The State disagrees and argues that “[t]he prosecutor's wistful musing that having the passenger from the SUV available as a witness would have been nice was no comment on a fact that was not in evidence. It was not a misstatement of the evidence to comment on the lack of evidence that the prosecutor conceded she did not possess.” Alternatively, the State argues that even if the prosecutor's comment was improper, Doran's conviction should not be reversed because there was no ill will or gross and flagrant misconduct in this case.
Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides if the comments were outside the wide latitude given to a prosecutor when discussing the evidence. Second, if misconduct is found, then an appellate court must determine whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011); see State v. Inkelaar, 293 Kan. 414, 428, 264 P.3d 81 (2011).
During the State's closing argument, the following comments were made:
“[THE STATE:] And in this case, even though we don't have the evidence the defendant fired a single shot, he is as guilty as the person who did under Kansas law.
“I cannot stand before you and tell you the name of that shooter. Lenexa PD attempted to identify the shooter through fingerprint, DNA analysis, cell phone records, witness statements; it didn't happen. No identification. Maybe some of the witnesses know. Maybe Chris Branham knows. Mr. Conner, Keith Conner, knows. Maybe Duron Flowers knows. Maybe Ashley Jacobs knows. But they are not talking.
“It doesn't matter that we don't know that name. I admit, it would be nice if I were to have the shooter, the passenger, and he testified from this witness stand. And he would have told you word for word the conversation he had with the defendant prior to those shots being fired.
“[DEFENSE COUNSEL]: I'm going to object. That assumes facts not in evidence and speculating about who someone might be and what they might say.
“[THE COURT]: Overruled. Jury will remember the evidence.
“[THE STATE]: But I don't have that evidence.
“ Based upon the evidence that we presented at trial, 13 witnesses, physical evidence, exhibits in this case, we can determine exactly what defendant's plan was that day, exactly what his intent was that day.” (Emphasis added.)
Doran argues that the prosecutor's comment—“And he would have told you word for word the conversation he had with the defendant prior to those shots being fired”—constitutes prosecutorial misconduct because it referred to matters not in evidence. Under Kansas law, “a prosecutor must confine his or her comments in closing argument to matters in evidence. When the prosecutor argues facts that are not in evidence, the prosecutor engages in misconduct and the first prong of the test for prosecutorial misconduct has been met.” [Citation omitted.] State v. Grey, 46 Kan.App.2d 988, 1003, 268 P.3d 1218(2012).
The State argues that the prosecutor's comments during closing argument were not matters outside the evidence because “the jury was able to distinguish between a factual statement and a hypothetical statement.” In other words, the prosecutor's comments merely suggested that it would have made its case easier if the shooter would have testified. The State's argument seems persuasive because the prosecutor's comments here are distinguishable from comments generally found to be outside the evidence. See Grey, 46 Kan.App.2d at 1003 (The prosecutor's “rhetorical technique of adding words to [defendant's] statement served to make him appear less believable to the jury. Exaggerating his statement by adding details to what he said served as a basis for the prosecutor's argument that [defendant] was lying.”); State v. Morris, 40 Kan.App.2d 769, 786–87, 268 P.3d 422 (2008) (Prosecutor's comments during closing argument were improper where prosecutor indicated that she knew why defendant committed alleged criminal act and explained the reasons for defendant's conduct.).
Unlike Grey and Morris where the prosecutors relied on matters outside the evidence to invade the jury's task of determining guilt based on admitted evidence, the prosecutor here merely stated that its task of proving Doran's guilt would have been easier if the shooter had testified. Thus, the prosecutor's comments were not matters outside of the evidence.
Was Doran's Statutory Right to a Speedy Trial Violated?
Doran's final argument is that the trial court erred when it denied his motion to dismiss based on violation of his statutory speedy trial rights. In particular, Doran argues that “[a]t the very least the time charged to the State should have been 153 days,” which falls outside of the 90–day requirement under K.S.A. 22–3402(1). The analysis of Doran's speedy trial argument requires a summary of the relevant dates. The following table contains the dates, key events, number of days between each event, and the trial court's assessment of the days to the parties.
+-----------------------------------------------------------------------------+ ¦Date ¦Key Events ¦Days Between¦Trial Court's ¦ ¦ ¦ ¦Events ¦Assessment ¦ +------+-----------------------------------------+------------+---------------¦ ¦5/27/ ¦• Doran's arraignment ¦ ¦ ¦ ¦2009 ¦ ¦ ¦ ¦ +------+-----------------------------------------+------------+---------------¦ ¦7/8/ ¦• Doran's first defense counsel's motion ¦42 ¦Assessed to ¦ ¦2009 ¦to withdraw granted. ¦ ¦State ¦ +------+-----------------------------------------+------------+---------------¦ ¦ ¦• Doran's second defense counsel ¦ ¦ ¦ ¦ ¦appointed. ¦ ¦ ¦ +------+-----------------------------------------+------------+---------------¦ ¦ ¦• Continuance charged to Doran's second ¦ ¦ ¦ ¦ ¦defense counsel. ¦ ¦ ¦ +------+-----------------------------------------+------------+---------------¦ ¦ ¦• Scheduling conference set for 8/14/ ¦ ¦ ¦ ¦ ¦2009. ¦ ¦ ¦ +------+-----------------------------------------+------------+---------------¦ ¦8/14/ ¦• Scheduling conference held ¦37 ¦Assessed to ¦ ¦2009 ¦ ¦ ¦Doran ¦ +------+-----------------------------------------+------------+---------------¦ ¦ ¦• Jury trial scheduled for 9/28/2009 ¦ ¦ ¦ +------+-----------------------------------------+------------+---------------¦ ¦9/17/ ¦• Doran's second defense counsel's motion¦34 ¦Assessed to ¦ ¦2009 ¦to withdraw granted. ¦ ¦Doran ¦ +------+-----------------------------------------+------------+---------------¦ ¦ ¦• Doran's third defense counsel appointed¦ ¦ ¦ +------+-----------------------------------------+------------+---------------¦ ¦ ¦• Continuance requested by Doran's third ¦ ¦ ¦ ¦ ¦defense counsel. ¦ ¦ ¦ +------+-----------------------------------------+------------+---------------¦ ¦ ¦• Jury trial scheduled for 12/14/2009 ¦ ¦ ¦ +------+-----------------------------------------+------------+---------------¦ ¦12/11/¦• Jury trial postponed by trial court ¦85 ¦Assessed to ¦ ¦2009 ¦because of a crowded docket. ¦ ¦Doran ¦ +------+-----------------------------------------+------------+---------------¦ ¦ ¦• Jury trial rescheduled for 1/25/2010. ¦ ¦ ¦ +------+-----------------------------------------+------------+---------------¦ ¦1/25/ ¦• Jury trial commences ¦45 ¦Assessed to ¦ ¦2010 ¦ ¦ ¦Doran ¦ +-----------------------------------------------------------------------------+
As contained in the table above, the trial court ultimately found that-except for the 42 days between Doran's arraignment and the withdrawal of his first defense counsel-all of the days between arraignment and the start of trial were assessed against Doran for speedy trial purposes.
The applicable standard of review for Doran's speedy trial argument is as follows:
“Appellate courts exercise unlimited review over a district court's legal rulings regarding violations of a defendant's statutory right to a speedy trial. When the assessment of time under the speedy trial statute turns on a factual determination by the district court, however, an appellate court must determine whether the facts as found by the district court are supported by substantial competent evidence. The court then determines de novo whether those facts as a matter of law support the legal conclusion of the district court.” State v. Vaughn, 288 Kan. 140, Syl. ¶ 1, 200 P.3d 446 (2009).
Because Doran remained in jail before his trial, K.S.A. 22–3402(1) governs his statutory right to a speedy trial. K.S.A, 22–3402(1) states:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).”
Our Supreme Court has ruled that a defendant does not have to take any affirmative action to protect his or her right to a speedy trial. Vaughn, 288 Kan. at 144. Nevertheless, when a trial is delayed “as a result of the application or fault of the defendant” the speedy trial clock is tolled. K.S.A. 22–3402(1); 288 Kan. at 144.
Doran was brought to trial 243 days after his arraignment. Doran concedes that 90 of the 243 days should have been assessed against him. Doran asserts, however, that 153 days—well in excess of the statutory limit—should have been assessed against the State. The State concedes that the first 42 days should have been assessed against it. Even so, the State argues that the remaining days were properly assessed against Doran. Specifically, the State maintains that besides the 42 days that were assessed to it, the remaining time “was all the result of the application or fault of [Doran], whose speedy trial rights were not violated.”
The trial court did not err in finding that Doran's speedy trial rights were not violated. Under a plain reading of K.S.A. 22–3402, our Supreme Court has held that a defendant's request for a continuance, the filing of a motion that causes a delay, or a defendant's active acquiescence to a continuance requested by the State tolls the speedy trial clock. Vaughn, 288 Kan. at 144–45. In this case, Doran's third defense counsel was appointed on September 17, 2009, after his second defense counsel's motion to withdraw was granted. When Doran's third defense counsel was appointed, Doran's jury trial already had been scheduled for September 28, 2009. Because Doran's third defense counsel needed to familiarize himself with Doran's case, he requested a continuance, and Doran's jury trial was rescheduled for December 14, 2009.
Based on a crowded docket, Doran's trial did not commence on December 14, 2009. Instead, on December 11, 2009, the trial court rescheduled Doran's trial for January 25, 2010. K.S.A. 22–3402(5)(d) allows a trial court to extend the speedy trial period beyond the requisite time period because of a crowded docket. K.S.A. 22–3402(5)(d) states:
“The time for trial may be extended beyond the limitations of subsections (1) and (2) for any of the following reasons:
....
“(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than 30 days may be ordered upon this ground .”
Because K.S.A. 22–3402(5)(d) gives the trial court discretion to extend the requisite speedy trial period, the trial court did not err in assessing most of these days against Doran. Nevertheless, K.S.A. 22–3402(5)(d) expressly states that “not more than 30 days may be ordered upon this ground.” Here, the trial court moved Doran's trial from December 14, 2009, to January 25, 2010—a delay of 42 days. Thus, at least 12 of those days should not have counted against Doran. We also note, however, that the trial court actually rescheduled Doran's trial on December 11, not December 14. K.S.A. 22–3402(5)(a) is ambiguous as to which date starts the counting process for speedy trial purposes, that is, the actual date the trial court rescheduled the trial (December 11) or the date of the previously scheduled trial (December 14). If the actual date the trial court rescheduled the trial controls, the delay would have been 45 days, and 15 of those days should not have counted against Doran.
Doran also argues that the 34 days from when his second defense counsel was appointed until his withdrawal should have been charged against the State for speedy trial purposes. Specifically, Doran maintains that “there is no good or statutory reason that all of the time between the appointment and withdrawal of the public defender should have been charged to Mr. Doran. As defense counsel argued below, the time between the August 14th scheduling of the trial and the September 17th withdrawal of the public defender should have been charged to the State.”
Doran's contention is misplaced. This court has held that “[a]ny delay caused by change in defense counsel is properly chargeable to the defendant and does not count against the [speedy trial] deadline.” State v. Lawrence, 38 Kan.App.2d 473, 479, 167 P.3d 794 (2007), rev. denied 286 Kan. 1183 (2007). Thus, the trial court did not err when it assessed the 34 days—representing the time frame between Doran's second defense counsel's appointment until his withdrawal was granted—against Doran.
For the foregoing reasons, the trial court properly determined that Doran's statutory speedy trial rights were not violated. Doran was brought to trial within 90 days (42 days + 15 days = 57 days) as required under K.S.A. 22–3402(1). As a result, Doran's speedy trial argument fails.
Affirmed.