Opinion
111,609.
06-05-2015
STATE of Kansas, Appellee, v. Derrick A. DOUGLAS, Appellant.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Derrick A. Douglas appeals his conviction of one count of aggravated robbery following a jury trial. Douglas claims he was denied a fair trial based on prosecutorial misconduct during closing argument. He also claims the district court erred in admitting certain evidence at trial without proper foundation. Finding no reversible error, we affirm the district court's judgment.
Robbery on Christmas Eve
On the evening of December 24, 2012, assistant manager Myra Purciller was working alone at Johnson's General Store, a convenience store in Sedgwick County that also sells gas. A man wearing a black hooded sweatshirt and gray sweatpants entered the store and walked back to the refrigerator. Purciller did not know the man's name, but she recognized him as a repeat customer at the store. At one point, the man mentioned to Purciller that if he purchased the wrong energy drink, his “girlfriend would get mad at him.” Eventually, the man left the store without purchasing anything.
A few minutes later, the man returned to the store with his hood up and a pair of underwear partially covering his face. Purciller recognized that it was the same man who had been in the store a few minutes earlier. The man approached the counter, took a meat cleaver out of his pocket, and told Purciller it was a robbery. Purciller gave him about $60 from the register, and the man also took approximately $60 worth of lottery tickets. He told Purciller that if she testified against him, he would “cut [her] face off.” Store surveillance cameras captured the robbery on video, which was later given to the police.
Purciller called 911 to report the robbery, and she told the operator that she thought she knew the robber because he had been in the store several times. When police arrived, Purciller described the robber and told police he was a regular customer but she did not know his name. She also told police that the man who committed the robbery had been in the store once with a woman, and Purciller believed they were a couple. The woman, who was pregnant at the time of the robbery, also came into the store regularly without the man. Purciller told police that she thought the man lived down the street from the store because he was there often and always on foot.
That night, police also spoke with Keith Donnell, who had been at a laundromat across the street from Johnson's General Store. Donnell and his young daughter were sitting in his truck waiting for their laundry to finish when he saw a suspicious man in the parking lot. The man walked past the laundromat and then walked past again; the second time, he had “something over his face.” Donnell saw the man a third time when he came from the direction of the store, headed north, and jumped into a vehicle. Donnell later learned that there had been a robbery at the convenience store, so he went to the store and told police what he had observed at the laundromat.
A few days later, Purciller spoke with Detective Dan Binkley, who led the robbery investigation, and told him that the man who committed the robbery had come into the store before the robbery but left without buying anything and that she knew him as a repeat customer. Purciller also told Binkley about the man's girlfriend and described the woman, but she did not know her name. Binkley watched the video surveillance footage of the robbery as well as the footage of the man that came in before the robbery. From the video, it looked as though the robber went north when he left the store after the robbery. Binkley created still photographs from the videos which later were showed to the jury.
On January 6, 2013, the woman Purciller associated with the robber came into the store. When the woman paid for some items with a Vision card, Purciller wrote the name from the card—Nicole McNeil—on a receipt which was later turned over to the police. Binkley collected the receipt, and by using his computer, he located a woman named Nicole M. McNeil who lived a block north of Johnson's General Store. Based on some “additional research,” Binkley learned that McNeil was associated with a man named Derrick Douglas, whom Binkley believed fit the description of the robber. Binkley put together a photograph array, including photographs of Douglas and of five other men, and Purciller identified Douglas as the robber.
On January 15, 2013, Binkley went to McNeil's house to try to locate Douglas and, as he was driving up to the house, he saw through a gap in a privacy fence a man on the back patio who looked like Douglas. When back-up officers arrived, however, no one answered Binkley's knock at the front door and no one was in the back yard. Binkley went to McNeil's place of employment and spoke with her, explaining that he was trying to locate Douglas. Binkley asked for consent to go to McNeil's home to search for Douglas, but McNeil refused. A few days later, however, McNeil told Binkley that she had recently had a baby and Douglas was the father.
On February 12, 2013, the State charged Douglas with one count of aggravated robbery. The jury trial commenced on November 4, 2013. The State presented testimony from Purciller, Donnell, and law enforcement officers involved with the investigation, including Binkley. The State also showed the jury the video of the robbery and the interaction prior to the robbery, as well as the still photographs Binkley created from the footage. Douglas did not testify, and the defense presented no evidence at trial. The jury found Douglas guilty as charged, and the district court sentenced him to 94 months' imprisonment. Douglas timely appealed the district court's judgment.
Prosecutorial misconduct
Douglas first argues that the State committed prosecutorial error when the prosecutor argued that the jury could infer Douglas' guilt from McNeil's refusal to allow the police to search her home. Douglas contends that this comment was outside the wide latitude afforded prosecutors during closing argument and that it requires this court to reverse his conviction and remand for a new trial. The State replies that the comment was within the boundaries of permitted argument and therefore was not misconduct. Alternatively, the State maintains that any misconduct does not require reversal.
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).
Specifically, Douglas complains of the following statements by the prosecutor during closing argument, presented here in context:
“[T]he defense wants you to make this big conspiracy that the investigators, the police officers, they didn't do their job. But you also heard that they were driving around, canvassing the neighborhood, trying to find somebody that would meet the description of what they were looking for. Again, they don't get to go into everybody's house.
“But what else is ironic? The guy runs to the north. His house is over there to the north, 905 South Seneca, 905½, to be specific, South Seneca. And when Detective Binkley goes over there he sees somebody that matches his description. He's trying to talk to this individual, but the person won't come to the door. He goes to this Nicole McNeil, who's associated with the defendant, and he tells her, he tells her, ladies and gentlemen, we're looking for Derrick Douglas, we'd like to have consent. And guess what. No, no consent, not going to help you get him. Why? Because he just committed an aggravated robbery a week and a half before. ” (Emphasis added.)
Douglas asserts that the prosecutor's comment was misconduct because it used McNeil's invocation of her constitutional right to refuse to consent to a search of her home to imply Douglas' guilt. To support his argument that the statement was improper, Douglas analogizes his case to cases in which both the United States Supreme Court and our Supreme Court have held that the State may not comment on a defendant's lawful exercise of a constitutional right. See Doyle v. Ohio, 426 U.S. 610, 619–20, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding unconstitutional “the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings”); State v. Tosh, 278 Kan. 83, 91, 91 P.3d 1204 (2004) (finding great potential for prejudice when a prosecutor asked the jury during closing argument, ‘ “[W]hy are they bothering to [go to trial] when the Defendant confessed?” ’); State v. Preston, 41 Kan.App.2d 981, 992, 207 P.3d 1081 (2009), reversed in part on other grounds 294 Kan. 27, 272 P.3d 1275 (2012). (addressing commentary on defendant's refusal to consent to search of car).
As the State points out, however, Douglas provides only cases addressing commentary on a defendant's lawful exercise of a constitutional right. Here, the challenged comment was not about Douglas exercising a constitutional right, it was about McNeil refusing to consent to a search of her home. Douglas cites no authority that directly supports his contention that the prosecutor committed misconduct by commenting on McNeil's refusal to consent to the search of her home.
However, it is unnecessary to reach any conclusion on whether the comments were improper in order to resolve Douglas' claim of prosecutorial misconduct. Even if we were to agree with Douglas that the prosecutor's comments were outside the wide latitude allowed in discussing the evidence, we must then determine whether the misconduct compels reversal because the statements prejudiced the jury against Douglas and denied him a fair trial. See Armstrong, 299 Kan. at 416, 324 P.3d 1052. This second step 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).
Here, the prosecutor's comments about McNeil's refusal to consent to a search were isolated. Kansas appellate courts previously have found that statements made by a prosecutor despite well-established prohibitions against such commentary may be considered gross and flagrant and may demonstrate ill will. See State v. Crawford, 300 Kan. 740, 752–56, 334 P.3d 311 (2014). But as we previously have discussed, there is no well-established prohibition against a prosecutor commenting on a nondefendant's refusal to consent to a search. Thus, it cannot be said that the prosecutor's comments were gross and flagrant and constituted ill will.
Furthermore, the evidence of Douglas' guilt was substantial. Purciller identified Douglas at trial as the man who committed the aggravated robbery. She was familiar with Douglas because he was a repeat customer at the convenience store. Purciller's testimony about the night of the robbery was corroborated by Donnell who was at the laundromat across the street from the convenience store. Also, the jury watched the video footage of the robbery and saw still photographs Binkley created from the footage. We conclude that the evidence at trial was of such a direct and overwhelming nature that any misconduct would likely have had little weight in the minds of the jurors. See Williams, 299 Kan. at 540, 324 P.3d 1078. Thus, even assuming for the sake of argument that the prosecutor's comments were improper, we conclude that the comments do not require reversal of Douglas' conviction.
Did the district court err in admitting evidence?
Next, Douglas argues that the district court erred in admitting into evidence the receipt with McNeil's name on it. The process by which the receipt was admitted into evidence is somewhat involved and requires some background information. The receipt first came up during direct examination of Purciller. The prosecutor showed Purciller State's Exhibit 2—not included in the record on appeal—and she identified the document as a Johnson's General Store receipt for a Vision card transaction on January 6, 2013. Purciller also testified, “That's my scribble,” apparently referring to writing on the document. Purciller testified that she had noticed the name on the back of the Vision card—Nicole McNeil—and wrote it on the receipt.
The State did not attempt to admit the receipt during Purciller's testimony, but brought it up again during direct examination of Binkley. Binkley identified State's Exhibit 2, testified that he had written the case number and other identifying information on the document, and agreed that it was a “fair and accurate depiction of the receipt that was left by [Purciller] and that [Binkley] retrieved.” When the State moved to admit Exhibit 2 into evidence, Douglas asked to voir dire the witness.
During voir dire, Binkley stated that it was his understanding that State's Exhibit 2, “was not the actual receipt that [Purciller] had collected herself, that it was—that it was a purchase that was made with another employee who recognized this individual and held this receipt.” Binkley testified that he did not know the identity of the employee who obtained the receipt and that he did not “know that anybody necessarily knew specifically which employee had come up with this receipt.” In a hearing outside the presence of the jury, Douglas' counsel noted that in addition to McNeil's name being scribbled on the receipt, there also was writing at the top of the receipt that said, “Pat, these are the receipts ... from the girlfriend of the guy who robbed us.”
Douglas ultimately objected to the admission of Exhibit 2 based on lack of foundation and because the handwriting on the exhibit constituted hearsay. The district court agreed with the hearsay objection, and the State ultimately conceded to Douglas' request to cut off the top of the document with the writing on it. Douglas made it clear that, while he was still objecting to the admission of the exhibit, he did not object to modifying the document by cutting off the handwritten message at the top of the receipt, and the district court admitted Exhibit 2 as modified.
On appeal, Douglas argues that the State did not establish a sufficient foundation regarding the origins of the receipt and that the erroneous admission denied him a fair trial because the receipt was “critical to the State's identification of Mr. Douglas as the robber.” The State responds that it laid a proper foundation for admission of the evidence.
Initially, we note that our review of this issue is somewhat hampered by the fact that State's Exhibit 2 is not included in the record on appeal. Generally, the party claiming an error has the burden of designating a record that affirmatively shows prejudicial error. Without such a record, an appellate court presumes the action of the district court was proper. State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013).
We will address Douglas' claim of error to the extent the record permits. “Whether a sufficient evidentiary foundation has been laid is a question of fact for the trial court and rests largely within its discretion. When there is substantial competent evidence to support the finding, it will not be disturbed on appeal.” State v. Garcia, 40 Kan.App.2d 870, 875, 196 P.3d 943 (2008), rev. denied 288 Kan. 834 (2009).
Here, the district court admitted Exhibit 2 based its finding that Purciller testified that she collected the receipt. Douglas argues that Purciller did not so testify. He points to the portion of her testimony in which the prosecutor asked, “And so you got a copy of that receipt and you wrote Nicole McNeil on it?” and Purciller replied, “Right.” Douglas contends that Purciller did not testify about how she obtained the copy.
Douglas' argument is not supported by the record. The portions of Purciller's testimony pertinent to the admission of Exhibit 2 were as follows:
“Q. Ma‘am, I'm going to show you State's Exhibit 2. Do you recognize this document?
“A. Yeah. That's my scribble.
“Q. Okay. Do you see a receipt on that document?
“A. Yes, I do.
“Q. And can you tell me, is that a Johnson's General Store receipt?
“A. Yes. It was a receipt for a Vision card transaction.
“Q. Okay. Now, do you see a date on that receipt?
“A. January 6th.
“Q. Okay. And did you notice a name that was on the back of that Vision card?
“A. Yes, I did.
“Q. And what was that name?
“A. Nicole [McNeil]....
“Q. Did you write that?
“A. Yes, I did.
“Q. Why did you look at the back of that Vision card?
“A. Well, we was trying to figure out who was who in the neighborhood.
“Q. Okay. And you knew that individual to be associated with [Douglas]?
“A. Yes.
“Q. And so you got a copy of that receipt and you wrote Nicole McNeil on it?
“A. Right.”
From this testimony, it is clear that Purciller recognized McNeil as the robber's girlfriend and she obtained her name from the Vision card. Purciller then wrote that name on the back of a copy of the credit card receipt and ultimately the receipt was delivered to Binkley. There is substantial competent evidence supporting the district court's finding that Purciller obtained or collected the receipt that was admitted into evidence as part of Exhibit 2. Thus, we conclude the district court did not abuse its discretion in finding that the State laid a proper foundation for the admission of Exhibit 2.
Finally, as the State argues, there is no reasonable possibility that any error in the admission of State's Exhibit 2 affected the outcome of the trial. The admission of the receipt was not critical to the State's identification of Douglas as the robber. Instead, the State introduced the receipt into evidence merely to explain to the jury how the police tracked down the whereabouts of Douglas after the robbery. The receipt did not identify Douglas as the robber, especially after it was modified by cutting off the handwritten message at the top of the receipt. Purciller picked Douglas from the photo array, and at trial she unequivocally identified him as the man who robbed the convenience store with a meat cleaver. Thus, we conclude that any error in admitting the exhibit 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).
Affirmed.