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State v. Galloway

Court of Appeals of Kansas.
Feb 8, 2013
293 P.3d 815 (Kan. Ct. App. 2013)

Opinion

No. 106,895.

2013-02-8

STATE of Kansas, Appellee, v. Dexter G. GALLOWAY, Appellant.

Appeal from Lyon District Court; Merlin G. Wheeler, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Lyon District Court; Merlin G. Wheeler, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.

MEMORANDUM OPINION


PER CURIAM:

Dexter Galloway stabbed Lavina Beaver during an argument in his home. He was convicted by a jury of aggravated battery and given an aggravated guidelines sentence of 11 months in prison. On appeal, he argues that the prosecutor committed misconduct during voir dire by confusing the concept of “innocence” and a finding of “not guilty” and by defining reasonable doubt through an analogy concerning President Obama's birth certificate. Although we continue to caution prosecutors regarding attempting to define reasonable doubt and innocence, we find that the comments, when viewed in context, were not outside the wide latitude allowed prosecutors and even if they were, the comments had no likelihood of changing the jury's verdict.

Galloway also raises two sentencing issues in this appeal. First, he argues that the court erred when it sentenced him based upon a criminal history score that relied upon prior convictions that were not included in the complaint or proven to a jury beyond a reasonable doubt. Because our Supreme Court has repeatedly rejected similar arguments and we are required to follow Supreme Court precedent, Galloway's claim fails. Second, he argues that the court erred in sentencing him to the aggravated sentence in the applicable sentencing guidelines box without submitting the factors used to a jury. But we lack jurisdiction to review a presumptive guidelines sentence, so we are required to dismiss that portion of Galloway's appeal.

Factual and Procedural History

Early one afternoon Beaver and her sister Nikki Roberts arrived at Katrina Sales' home. Beaver testified that she and Roberts had been invited to attend a birthday party for Sales' live-in boyfriend, Dexter Galloway. At some point during the late afternoon, Galloway went upstairs to take a nap. When he came back down from his nap, Galloway began yelling at Sales and calling her names. Beaver told him to stop, and he then started yelling at Beaver. Galloway went to the kitchen to get another beer and grabbed something from a kitchen drawer. Upon exiting the kitchen, Galloway approached and grabbed Beaver, who then felt a sharp pain in her stomach. Galloway began chasing Beaver around a chair, at which point she realized that she was bleeding and had been stabbed. Sales testified that at some point she heard Galloway say, “Don't put your hands on me.” After Galloway stabbed Beaver, Sales got in between the two and saw a small steak knife in Galloway's hand. Beaver was rushed to the hospital where it was determined that the puncture wound was deep enough to cause a laceration on her liver.

While being handcuffed and taken into custody, Galloway kept repeating that he screwed up and did not mean to do it. In Galloway's police interview he stated that he “fucked up” and he asked the officers “if he had killed her and that he didn't mean to do what he did.” Galloway also stated to police

“that Roberts and Beaver had showed up at the house. He told them to leave, that Roberts slapped him, and he went into an automatic reflex. He grabbed the knife after Roberts and Beaver had tried to jump him, and he had—he motioned that he had poked the knife towards Roberts and then swung the knife at Beaver. And that's when he realized he had stuck one of them.”

The State charged Galloway with one count of attempted second-degree murder or, in the alternative, one count of aggravated battery. Galloway was subsequently found guilty of aggravated battery—recklessly causing bodily harm to another person with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death can be inflicted. Although Galloway's criminal history score of H called for a sentence of presumptive probation, the district court granted the State's unopposed motion for an upward dispositional departure and sentenced Galloway to the aggravated 11–month prison sentence.

Galloway filed a timely notice of appeal.

Analysis

The prosecutor did not engage in misconduct during voir dire, but even if he did it was harmless.

Galloway argues that the State committed prosecutorial misconduct during voir dire when the prosecutor attempted to define reasonable doubt through an analogy using the controversy surrounding President Obama and whether he is an American citizen. Galloway also contends that the State committed prosecutorial misconduct when the prosecutor discussed the presumption of innocence.

We apply prosecutorial misconduct standards to the voir dire process. State v. Simmons, 292 Kan. 406, 412, 254 P.3d 97 (2011). Our 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 constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).

In the second step of the two-step analysis, 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. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).

“ ‘None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, [22,] 17 L.Ed.2d 705, 87 S.Ct. 824 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030 (2011).

During voir dire of the jury, the prosecutor made the following statements:

“The question is what is reasonable doubt? That's something we will [ sic ] really can't instruct you on, something you'll have to decide if you're chosen on this jury and decide based on the evidence that you hear.

“I don't know how serious Donald Trump is about running for president of the United States, If you've been following him, it seems to me his main issue was whether President Obama was actually born in the United States or not. How many of you think President Obama is an American citizen? Okay. Most hands go up.

“Now, I guess the White House had some kind of press conference last week, and they supposedly had the original birth certificate from Hawaii or whatnot. How many of you think Obama is an American have actually held that birth certificate in your hand? No hands go up.

“We've [ sic ] haven't actually seen the documents, but we're pretty sure that the President of the United States that's been sworn in and served three years now is an American citizen. I suppose it could be that he was bom somewhere else. That's why he forged the birth certificate or it wasn't accurate or something Hke that, but the doubt is not very substantial. It's not reasonable.

“The State does not have to establish—or eliminate all doubts, just those doubts that are not reasonable—those doubts that are reasonable. Would anybody disagree that the fact that a degree of doubt in a criminal case is about the same degree of doubt whether the President of the United States is an American citizen? That's not very much doubt. Does anybody disagree with that proposition?

“I see no responses.”

The second comment challenged by Galloway is when the prosecutor stated:

“Those of you who have been on juries before know, and especially on criminal cases, know that you'll be instructed that the defendant is presumed innocent as we begin this trial. And that makes sense because we haven't heard any evidence yet and that, obviously, is yet to come. This applies to people that are accused of crimes. We don't say they are innocent; we say they are presumed to be innocent. Whether they actually are is something you will have to decide.” (Emphasis added.)

We first determine if the prosecutor's statements fell outside the wide latitude afforded prosecutors.

Regarding the prosecutor's discussion on the presumption of innocence, although the prosecutor did state, “We don't say they are innocent; we say they are presumed to be innocent. Whether they actually are is something you will have to decide”; he followed this comment with the following:

“What that presumption means is that there is work yet to do. If you're chosen for the jury, the State would have the work to attempt to prove the defendant guilty, and you'll have the work to do as a jury to decide whether that evidence that we present is enough to establish guilt or whether it's not.”

Galloway takes issue with the prosecutor's statements that it is the jury's job to determine if Galloway is innocent instead of not guilty, because determining someone's innocence and determining whether they are not guilty require two different standards. We agree, but remarks made by a prosecutor must be viewed in context of the total argument. See State v. Lumley, 266 Kan. 939, 959, 976 P.2d 486 (1999). Based on the prosecutor's follow-up paragraph describing the presumption of innocence, even if the initial comment on the presumption of innocence was incorrect or erroneous, the prosecutor corrected his error with his follow-up explanation. Thus, the prosecutor's comment on the presumption of innocence was not outside the wide latitude afforded to prosecutors because the prosecutor solely focused on the jury's duty to determine if the State established guilt or not.

With regard to the prosecutor's attempt to define reasonable doubt through analogy, our Supreme Court has found “that prosecutors embellish on the definition of the burden of proof in criminal cases at their peril.” State v. Magallenez, 290 Kan. 906, 914, 235 P.3d 460 (2010). To do so, they run the risk of misstating the law. See 290 Kan. at 914–15. An argument designed to define reasonable doubt “with unusual or seemingly clever analogies” is a dangerous path for prosecutors. State v. Crawford, 46 Kan.App.2d 401, 416, 262 P.3d 1070 (2011), rev. granted May 21, 2012.

In Magallenez, the prosecutor attempted to define reasonable doubt as “ ‘an individual standard ... a standard that when you believe he's guilty you've passed beyond.’ “ 290 Kan. at 914. The court found that this statement incorrectly defined and impermissibly diluted the State's burden of proof. “A juror's mere belief that an accused individual is guilty does not automatically mean that the State has met its burden.” 290 Kan. at 914.

In Crawford, our court determined that the prosecutor committed prosecutorial misconduct when it equated reasonable doubt with that of a jigsaw puzzle missing some pieces. The prosecutor stated, “ ‘[E]ven though there's some pieces missing, you're able to say that looks like a lighthouse and an ocean.’ “ 46 Kan.App.2d at 414. This court determined that this statement “implied to the jury that it could find Crawford guilty even if some evidence was missing if it ‘looked like’ he committed the crimes.” 46 Kan.App.2d at 414.

Although it has generally been found by Kansas appellate courts that it is never a good idea to attempt to define reasonable doubt, see State v. Brinklow, 288 Kan. 39, 49–50, 200 P.3d 1225 (2009), in this case, the attempt does not appear to stray outside of the wide latitude afforded to prosecutors. In fact, as the State points out, Galloway's defense attorney not only did not object, but he agreed that it was a good analogy. In addition, the prosecutor did not repeat the analogy or even refer to it in closing argument, and the jury instructions properly advised the jury of the State's burden of proof.

Moreover, even if either of the comments did constitute misconduct, the evidence presented at trial as to aggravated battery is so overwhelming against Galloway that the misconduct would likely have had little weight in the minds of the jurors. There was testimony from the arresting officers and the officers interviewing Galloway that Galloway admitted to stabbing Beaver and that he did not mean to do it. In addition, Beaver's and Roberts' testimonies indicated that it was Galloway who first approached Beaver, she felt a sharp pain, and then Beaver realized she was bleeding. Sales also testified that when she came between Beaver and Galloway after the stabbing, she saw that Galloway had a knife in his hand. Although the jury was given a self-defense instruction, during the jury instruction conference the district court indicated that even though it was going to give such an instruction, the evidence was very scant and even if Galloway was not the first aggressor, he was using excessive force by brandishing a knife. It was undisputed that both Beaver and Roberts were unarmed. Therefore, even if the prosecutor's comments during voir dire were misconduct, the evidence against Galloway was so overwhelming that those comments likely would have had little weight in the minds of the jurors. Failure to present evidence to the jury of the prior convictions used to calculate Galloway's criminal history score did not violate his constitutional rights.

Galloway asserts that the district court erred when it sentenced him based on a criminal history score that relied on prior convictions that were neither included in the complaint nor proven to a jury beyond a reasonable doubt. Galloway relies on Apprendi v.. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), but acknowledges our Supreme Court's holding State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and raises this issue to preserve it for federal review.

Absent some indication that our Supreme Court is departing from its position in Ivory, this court is bound thereby. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Our Supreme Court continues to apply its decision in Ivory without divergence. See, e.g., McCaslin, 291 Kan. at 731–32 (affirming Ivory, 273 Kan. at 46–48). Similarly, the United States Supreme Court recently reaffirmed that prior convictions need not be proven to a jury beyond a reasonable doubt. See James v. United States, 550 U.S. 192, 214 n.8, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). This court is duty bound to follow Ivory and reject Galloway's claim of error. We lack jurisdiction to review a sentence that is imposed within the presumptive guidelines range.

Based on Apprendi, 530 U.S. 466, and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), Galloway contends that the district court violated his Sixth and Fourteenth Amendment rights when it sentenced him to the presumptive aggravated guidelines sentence based on aggravating factors without presenting the aggravating factors to a jury and requiring the State to prove them beyond a reasonable doubt. Galloway acknowledges our Supreme Court's ruling in State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008), and includes this issue solely to preserve it for federal review.

K.S.A. 21–4721(c) provides that an appellate court shall not review on appeal a sentence for a felony conviction that is within the presumptive guidelines range of sentences for the crime. Where the imposed sentence is within the presumptive guidelines range, the appellate court lacks jurisdiction to consider the appeal. Johnson, 286 Kan. at 851–52.

The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Jones, 44 Kan.App.2d at 142. It does not appear that our Supreme Court is departing from the position it held in Johnson as it has reaffirmed that holding in State v. Gaona, 293 Kan. 930, 958, 270 P.3d 1165 (2012).

Galloway's criminal history score was H and his conviction was for a severity level 8 person felony. Under K.S.A.2010 Supp. 21–4704, the presumptive sentencing range was 11 months (aggravated), 10 months (standard), or 9 months (mitigated). The district court sentenced Galloway to 11 months of imprisonment. Accordingly, we must dismiss this portion of Galloway's appeal for lack of appellate jurisdiction.

Affirmed in part and dismissed in part.


Summaries of

State v. Galloway

Court of Appeals of Kansas.
Feb 8, 2013
293 P.3d 815 (Kan. Ct. App. 2013)
Case details for

State v. Galloway

Case Details

Full title:STATE of Kansas, Appellee, v. Dexter G. GALLOWAY, Appellant.

Court:Court of Appeals of Kansas.

Date published: Feb 8, 2013

Citations

293 P.3d 815 (Kan. Ct. App. 2013)