Opinion
110,849.
12-24-2014
STATE of Kansas, Appellee, v. Antonio HILL, Appellant.
Adam Stolte, of Kansas Appellate Defender Office, for appellant. Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, Derek Schmidt, attorney general, for appellee.
Adam Stolte, of Kansas Appellate Defender Office, for appellant.
Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Antonio Hill of distributing a controlled substance. Hill raises two issues on appeal. First, he contends the trial court should have provided the jury with a limiting instruction on prior crimes evidence. Second, he argues the trial court erred in the way it considered his criminal history at sentencing. Finding no reversible error, we affirm.
Factual and Procedural Background
On October 8, 2012, Detectives Nathan Boeckman and Robert Dierks of the Riley County Police Department conducted a controlled drug buy operation with the assistance of a confidential informant (CI). Hill, who was known to the CI, was the target of the investigation. The CI did not testify at trial. The detectives testified that they knew Hill's appearance before the drug buy and that they witnessed Hill distribute the drugs to the CI. The detectives also identified Hill in the courtroom at trial as the person who distributed the drugs.
The detectives' prior knowledge of Hill's appearance was the subject of questioning at trial. Detective Boeckman testified he knew Hill's appearance from seeing him “in person” and from “looking at a picture.” On the other hand, Detective Dierks testified he knew Hill's appearance because, “[i]n our Riley County Criminal Database ... we have a booking photo of Mr. Hill.” Hill did not object to the testimony of either detective, and he did not ask for a limiting instruction to be provided to the jury. The trial court did not provide the jury with a limiting instruction regarding how to consider evidence of a prior crime, and Hill did not contemporaneously object to the trial court's omission.
After Hill's conviction, the presentence investigation (PSI) report showed Hill had a criminal history score of E. Hill did not object to the PSI at sentencing, and when personally asked by the trial court whether “the criminal history sheet that was attached to the [PSI]” was “accurate,” Hill said it was.
Hill filed a timely appeal.
Failure to Provide the Jury with a Limiting Instruction
For the first time on appeal, Hill now characterizes the detectives' testimony and a remark made by the prosecutor in closing argument that Detective Boeckman knew Hill “from a prior incident,” as evidence of a prior crime pursuant to K.S.A. 60–455. Hill concedes that he did not request a limiting instruction for any prior crimes evidence. Still, he argues the trial court's failure to provide a limiting instruction was clearly erroneous. In response, the State denies the challenged testimony was evidence of a prior crime. Alternatively, the State argues that if there was error, it was harmless.
“[T]he right to challenge the lack of a K.S.A.2012 Supp. 60–455(b) limiting instruction is not based on whether a party has objected to the admission of the evidence that is the subject of the instruction, and a failure to object to the admission of the evidence does not waive the right to raise an issue on appeal regarding whether the failure to give a limiting instruction was clearly erroneous.”State v. Breeden, 297 Kan. 567, 582–83, 304 P.3d 660 (2013).
On appeal, our standard of review requires that we first determine whether the jury instruction was legally and factually appropriate. State v. Brown, 300 Kan. ––––, 331 P.3d 781, 792 (2014). If an appellate court finds error, it then must decide whether the court is firmly convinced the jury would have reached a different verdict had the error not occurred. The party claiming error has the burden of establishing prejudice. 331 P.3d at 792.
K.S.A.2013 Supp. 60–455(a) excludes evidence of a “crime ... on a specified occasion ... as the basis for an inference that the person committed another crime ... on another specified occasion.” If evidence of a prior crime is admitted for a different purpose, the trial court must “give a limiting instruction informing the jury of the specific purpose for admission .” State v. Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006). At the outset, therefore, we must decide whether the trial court admitted evidence of a prior crime in this case.
We begin with the prosecutor's closing argument, which was not evidence. See State v. Kettler, 299 Kan. 448, 477, 325 P.3d 1075 (2014). Assuming a prosecutor's argument could trigger a duty to provide a limiting instruction, Hill mischaracterizes the prosecutor's remark made below. The prosecutor did not say Detective Boeckman knew Hill “from a prior incident,” but rather that Detective Boeckman knew Hill “from prior face-to-face contact with him prior to this incident. ” (Emphasis added.) The word “incident,” to which Hill objects, related only to the present charged crime, not to any prior crime. Hill's argument fails for lack of a factual basis.
Turning then to the evidence, Hill cites no caselaw holding that testimony like Detective Boeckman's—which establishes prior knowledge of a defendant by undefined personal contact and a photograph—constitutes evidence of a prior crime. We are persuaded that an officer's recognition of an individual from a personal contact or reference to a photograph does not establish or even imply that the individual committed a prior crime. Similar to people generally, officers obviously encounter a myriad of people who they come to recognize later but are not known as convicted criminals. Moreover, testimony similar to Detective Boeckman's is certainly less odious than evidence of gang membership, which is not evidence of a prior crime under K.S.A. 60–455. See State v. Goodson, 281 Kan. 913, Syl. ¶ 11, 135 P.3d 1116 (2006) ; State v. Lowe, 276 Kan. 957, 963, 80 P.3d 1156 (2003). We conclude that Detective Boeckman's testimony did not require a K.S.A. 60–455 limiting instruction because it was not evidence of a prior crime.
Detective Dierks' testimony presents a closer question. The detective mentioned both “our Riley County Criminal Database” and “a booking photo of Mr. Hill,” which clearly suggested that Hill previously had been arrested for the commission of a crime. Detective Dierk's testimony is similar to a police officer making reference to a defendant's “mug shot” at trial.
In cases where a law enforcement officer referred to a “mug shot,” during trial testimony, our Supreme Court has decided evidentiary or mistrial questions by assuming error in the mug shot reference but focusing the analysis on a case by case evaluation of potential prejudice. See State v. Trotter, 245 Kan. 657, 662, 783 P.2d 1271 (1989) ; State v. Childs, 198 Kan. 4, 11–12, 422 P.2d 898 (1967). We will take a similar approach here.
Assuming the trial court erred by not giving a K.S.A. 60–455 limiting instruction regarding Detective Dierks' comment, we find no prejudice. Hill's sole defense was mistaken identity. Yet, the evidence that Hill was the individual who sold the drugs to the CI was very strong. Detective Dierks (working undercover) was inside the vehicle and in close proximity to Hill and the CI during the transaction. He provided an in-court identification of Hill. Detective Boeckman observed the seller from 75 to 85 yards away while videotaping the drug sale. He also identified Hill in court as the seller of the drugs.
Additionally, the jury viewed two video recordings of the transaction-one from the interior of the undercover vehicle and the other taken by Detective Boeckman. Considered together, this videographic evidence clearly showed the facial features of the individual who sold the CI the drugs. As a result, the jury was in the unique position of comparing the seller's face with Hill's appearance as he sat in the courtroom.
Based upon our independent review of all of the identification evidence, we are firmly convinced the jury would not have reached a different verdict had a limiting instruction been given with regard to Detective Dierk's reference to Hill's booking photograph.
Use of Criminal History at Sentencing
Hill contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the trial court should not have considered his criminal history at sentencing without first submitting it to the jury. Hill raises the issue to preserve it for possible federal review. This is a question of law over which we have unlimited review. See State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002).
As Hill acknowledges, our Supreme Court has ruled against his legal contention. See Ivory, 273 Kan. 44, Syl. Even if Apprendi applied, Hill personally admitted to his criminal history at sentencing, obviating the need for a jury verdict. See Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We find no error in the trial court's consideration of Hill's criminal history at sentencing.
Affirmed.