Opinion
No. 110901.
2015-02-13
STATE of Kansas, Appellee, v. Carlos GARCIA, Appellant.
Appeal from Sedgwick District Court; John J, Kisner, Jr., Judge.Rick Kittel, of Kansas Appellate Defender Office, for appellant.Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; John J, Kisner, Jr., Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Carlos Garcia appeals from his conviction for failing to report as a registered offender under the Kansas Offender Registration Act (KORA), K.S.A.2011 Supp. 22–4901 et seq. He contends that the district court improperly excluded him from a critical stage of his trial when it permitted deliberating jurors to view exhibits outside his presence, contrary to K.S.A. 22–3420(3) and State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). We note that the 2014 legislature amended out of the statute the very language on which Garcia relies, and it clearly stated that the amendment was to be applied retroactively. Garcia's claims have no constitutional or statutory basis and are without merit. We affirm the district court.
Factual and Procedural Background
The parties are well acquainted with the facts of the case. We do not recount them in detail because they do not drive the outcome of this appeal. In October 2011, Garcia was an offender subject to the registration requirements of KORA. He relocated to Sedgwick County and properly registered as an offender at the Sedgwick County Sheriff's Office on October 13, 2011. He was required to make his next report to the Sheriff in December 2011. He did not report then, nor did he report in January 2012. The State had him arrested on February 5, 2012, and charged him with the offense of failure to register under KORA. Since Garcia had two prior convictions for failing to register, the charge was elevated to a severity level 3 person felony.
The district court conducted Garcia's jury trial on January 28 and 29, 2013. During the trial, the State introduced into evidence two Kansas Offender Registration Forms that Garcia had completed, Exhibits 1 and 2. On cross-examination of the State's KBI witness, Garcia introduced into evidence a KBI document used by Sedgwick County, Exhibit A. Only those three exhibits, all documents, were introduced into evidence at the trial. The State rested. Garcia testified in his own defense and rested. The district court then instructed the jury.
After counsel had made their closing arguments, the district court told the jurors they would next retire to the jury room to begin their deliberations. The judge then informed the jurors regarding the exhibits, its instructions, and the verdict form:
“[THE COURT]: The admitted exhibits will be made available to you for your consideration during deliberations. The bailiff will also have the red folder, which will include the final copy of the written instructions and the verdict form. I'll excuse you to the jury room at this time. Thank you very much for your time and attention.”
The jury left the courtroom, but the parties and the court remained. The district judge asked counsel if there were any other matters to take up before recessing. Defense counsel stated her concern that the KBI witness may have mistakenly kept Exhibit A. The district court and counsel had the following discussion:
“THE COURT: Oh, we are missing one exhibit? That's Defense Exhibit A?
“MS. GILMOUR [defense counsel]: All right. Well, we can address that and make sure that the jury gets that exhibit or a copy of it. If that becomes a more significant issue we'll
“MS. WILSON [prosecutor]: I do not have it, I don't know whether she picked it up or not. But what I can tell the Court is I have no objection to Ms. Gilmour recreating that exhibit, she has the whited [ sic ] out copy, it merely is a matter of copying it again. I know that it's the same exhibit, I have no foundation objection.
“THE COURT: Okay. Then we'll just go ahead and make that exhibit. Ms. Gilmour, you can go ahead and proceed to do that at this time. And with that, we'll be in recess. Thank you.” (Emphasis added.)
The jury deliberated and found Garcia guilty. The district court sentenced him to serve 221 months in the custody of the Secretary of Corrections. He timely appeals.
Analysis
Standard of Review
Garcia contends that his statutory and constitutional rights to be present at a critical stage of his prosecution were violated when the jury was allowed to view exhibits during its deliberations. Issues involving the right to be present at a critical stage are questions of law over which we exercise unlimited review. State v. Martinez, 288 Kan. 443, 449, 204 P.3d 601 (2009). Adequacy of the Record to Preserve the Issue
Garcia claims that allowing the jurors, outside his presence, to view the documents admitted into evidence while they deliberated violated the Constitution and K.S.A. 22–3420(3) as construed and applied in Herbel, 296 Kan. 1101. The party claiming error has the burden of designating a record that affirmatively shows the asserted prejudicial error. Without such a record, an appellate court generally presumes the action of the trial court was proper. State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013). The State argues that the record above is insufficient to support Garcia's claim that the exhibits were in fact provided to the jury. The State asks us to reject Garcia's appeal on that basis. We prefer to, and do, draw the inference from the discussion quoted above that the district court did what it said it would do and gave the jury the exhibits, the instructions, and the verdict form. We will proceed to the next stage of our review. Garcia's “Critical Stage” Claims
We acknowledge that under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, a defendant in a criminal case has the right to be present at all critical stages of the prosecution, especially when his or her presence may advance his or her defense. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). Likewise, K.S.A. 22–3405(1) requires that a felony defendant be present at every stage of the trial except as otherwise provided by law.
Garcia's contention takes the definition of “critical stage” to an entirely new level: he claims that he was entitled to be present when sequestered, deliberating jurors viewed, or could have viewed, the exhibits that were admitted at his trial. Put another way, he argues that deliberating jurors can only legally view admitted exhibits in open court in the defendant's presence. His proposition, if correct, would put incredible strain on the ability of jurors to conduct their deliberations in private, a cornerstone of our justice system.
His argument, at least at the time of Garcia's trial and that the time he submitted his brief, was not devoid of at least some logical foundation. He submits that the Supreme Court in Herbel construed K.S.A. 22–3420(3) in a manner consistent with his claim. At the time of Garcia's trial and at the time he submitted his brief, K.S.A. 22–3420(3) provided, in the part pertinent to the exhibition of evidence, as follows:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the ... evidence arising in the case, they may request the officer to conduct them to the court, where the ... evidence shall be ... exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
In Herbel, the State introduced into evidence and played for the jury at trial a videotape of officers interviewing Herbel. Herbel made incriminating statements to the officers. During deliberations the jurors asked to review parts of the video. The district court, apparently out of Herbel's presence, talked to jurors in the courtroom and played (“exhibited”) for them the requested parts of the video. The Herbel court found that this judicial contact with the jury made the circumstance a critical stage of the trial. 296 Kan. at 1107–09. Since the court assumed Herbel was not present, the district court's contact with jurors constituted a violation of Herbel's right to be present at a critical stage of his trial under the Fifth, Sixth, and Fourteenth Amendments. Nevertheless, after duly examining the error, the court found the constitutional error harmless. 296 Kan. at 1109–15.
Although Garcia claims that his constitutional rights to be present were violated, Herbel provides him no support. Here the district court had no direct involvement in exhibiting the documentary evidence to the jury. It merely made the exhibits available. Garcia does not claim that the district court communicated at all with the jury while it was deliberating. In Herbel, the district court violated Herbel's constitutional rights by having contact with the jury while Herbal was not present. Court contact with a jury constitutes a critical stage of the trial, and the defendant's presence is required. Here the act of providing the jury the exhibits occurred before the jury became a deliberating jury. If the jury viewed the exhibits, it did so during its deliberations, not in the presence of the court and, thus, not at a constitutionally critical stage of the trial. Garcia's constitutional violation claims have no merit.
The Herbel court also found that the district court had violated Herbel's statutory right to be present under K.S.A. 22–3420(3) because it “exhibited” the video evidence to a deliberating jury without Herbel being present. 296 Kan. at 1109. Again, though, the court found that error harmless. 296 Kan. at 1115.
Garcia claims that his statutory rights were, as in Herbel, violated because the exhibits were “exhibited” to the jury outside of his presence. He bases his claim on this quoted sentence from Herbel: “[K.S.A. 22–3420(3) ] plainly mandates that the evidence ‘shall be ... exhibited to [the jury] in the presence of the defendant unless he voluntarily absents himself.’ “ 296 Kan. at 1109. Then, from this quote, he extrapolates a rule that anytime jurors view evidence it is “exhibited” to them and he must be present. Under his argument, this includes even documentary evidence that does not actually require an act of exhibition. This is far too great an extension of the holding in Herbel to stand.
Garcia does not cite the actual holding in Herbel on the statutory violation it found had occurred. That holding is contained in the sentence that immediately follows the one Garcia relies on above, and states: “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.” Herbel, 296 Kan. at 1109. Clearly the court in Herbel limited its statutory critical stage holding to those circumstances specifically described in the statute. It did not open the door to the statutory construction Garcia advances.
So, regarding Garcia's statutory right to be present, he has not demonstrated that the statute was violated. He has not shown that (1) “after the jury ... retired for deliberation” the jury had a(2) “desire” to be (3) “informed” about any of the evidence it may have viewed during deliberations. See K.S.A. 22–3420(3). The record reflects no such desire or request. Also, contrary to his contention, the statute clearly covers only evidence that must be “exhibited” in some manner. Paper documents can simply be viewed. No special exhibiting equipment is required for that. See State v. Haynes, No. 106, 850, 2013 WL 3970167, *4–6 (Kan.App.2013) (unpublished opinion). We are convinced that the statute Garcia relies on simply would not apply to the circumstances here.
But we do not need to go into any more detail about K.S A. 22–3420(3), Herbel, or Haynes. Whether because of the ramifications of language in Herbel, language in other appellate cases applying the various subsections of K.S.A. 22–3420, or Garcia's brief or just coincidence, the 2014 legislature made several amendments to K.S.A. 22–3420. Relevant here, it eliminated the statutory foundation on which Garcia bases all of his contentions. Effective July 1, 2014, K.S.A.2014 Supp. 22–3420(c) now provides:
“(c) 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.”
As is readily apparent the legislature deleted the “exhibited ... in the presence of the defendant” and related language from the statute that was in effect at the time of Garcia's trial and the filing of his brief. The new statute eliminates any possibility that the jurors' review of evidence during their deliberations could be deemed a critical stage of the trial requiring the defendant's presence. That is made further abundantly clear by the negative implication of new K.S.A.2014 Supp. 22–3420(d), which requires the defendant's presence during deliberations only when the court considers a written question from the jury or for a rehearing of testimony. But the legislature did not stop there. It specifically made the amendments to the statute retroactive. K.S.A.2014 Supp. 22–3420(f) provides as follows: “The amendments to this section by this act establish a procedural rule, and as such shall be construed and applied retroactively.”
Here the district court exercised its discretion by providing the jurors the admitted exhibits for their consideration during their deliberations. The district court did the very thing the statute retroactively and expressly permits. The legislature has made it clear that the jurors' review of admitted exhibits in the jury room is not a critical stage of the prosecution at which the defendant must be present. Even if we agreed with Garcia's statutory “critical stage” argument under the prior version of K.S.A. 22–3420, and we do not, we would not reverse and remand for a new trial where the district court would be specifically permitted to follow the same process of providing the jury the exhibits that it followed before.
Affirmed.