Opinion
No. 107,609.
2013-09-6
STATE of Kansas, Appellee, v. Derrick JENNINGS, Appellant.
Appeal from Wyandotte District Court; R. Wayne Lampson, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Christopher Mann, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; R. Wayne Lampson, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Christopher Mann, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., McANANY and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Derrick Jennings appeals his conviction by a jury for possession of cocaine, driving without a valid driver's license, and failing to give an appropriate signal when making a turn. He argues the trial court erred in denying his motion to suppress the drugs found in his vehicle because the police conducted an illegal inventory search. He also challenges the reasonable doubt jury instruction and the trial court's failure to inquire of the jury as a whole as to the accuracy of the verdict.
On August 20, 2010, Kansas City, Kansas, Police Officer Walter Jones stopped Jennings' vehicle after an improper turn signal. Jennings was taken into custody under an arrest warrant for unpaid traffic citations. Jones ordered a tow of Jennings' vehicle and then performed an inventory search wherein he discovered two small cocaine rocks in the console cup holder. The State charged Jennings with possession of cocaine (K.S.A.2010 Supp. 21–36a06[a] ), driving while suspended (K.S.A.2010 Supp. 8–262), no proof of insurance (K.SA.2010 Supp. 40–3104), and improper turn signal (K.S.A.8–1721). Jennings filed a motion to suppress arguing the inventory search was an unreasonable search in violation of his Fourth Amendment rights under the United States Constitution and Sections 10 and 15 of the Kansas Constitution Bill of Rights.
At the suppression hearing, Officer Jones testified he had stopped Jennings' vehicle for failure to stop at a stop sign. Jennings continued for a block and a half before coming to a stop blocking a private driveway. Jones said Jennings immediately got out of the vehicle but then complied with his order to get back in the vehicle. Jones called for backup and then approached the driver's side window. Jones said he was highly suspicious because Jennings had not stopped immediately and then had jumped out of the vehicle after stopping. Jennings told Jones he did not have a license because it had been suspended.
When Officer Jones had dispatch run a wants and warrants check on Jennings, the result showed active warrants out for his arrest due to traffic citations. Jones arrested Jennings, placed him in handcuffs, and put him in the back seat of his patrol car. Jones testified he requested a tow of Jennings' vehicle because it was blocking a private driveway, Jennings was under arrest, and there was no one to take possession of the vehicle. Jones testified he did not know if Jennings had any relationship with the residents of the private driveway he was blocking. He said he received permission for the tow from dispatch and therefore it was necessary to conduct an inventory search where he found two cocaine rocks.
Officer Jones testified a woman came out of the house when he initially approached Jennings' vehicle. He ordered the woman to go back into the house. Jones said that if she had said anything directly to him, he had not paid attention and told her to go back into her house for her own safety. Jones testified he did not know at that time whether there was any relationship between Jennings and the woman. Jones testified the woman did not come out of the house and identify herself until after he had conducted the inventory search.
On cross-examination, Officer Jones denied Jennings told him he stopped in front of his niece's, Lavette Mazique, house and in the back of his vehicle was the lawn mower he was returning to her. Jones testified Jennings only said he was out cutting grass and he had a lawnmower in the back. Jones repeated that if Mazique had said anything when she approached the first time, he did not hear it because he was focused on Jennings and he would not engage in a conversation with her. He completely ignored her. Jones also testified it was not part of his job to go to the house and see if the residents wanted him to leave an illegally parked car blocking their driveway. Jones said he did not find any weapons in Jennings' vehicle. Jones testified that once he began working on his reports and the tow had been ordered, Jennings told him that his wife, Sarah Jennings, could come and get the vehicle.
On redirect, Officer Jones testified that when he conducted the inventory search, he did not have any knowledge of the relationship between Jennings and the resident, the occupants of the residence, or the woman who had come out of the residence. Jones said the vehicle was not ultimately towed because Sarah arrived and showed identification. He said he stopped the tow so she would not have to pay for it. Jones testified his patrol car was not blocking the driveway.
Mazique testified she lives in the house where the stop of Jennings' vehicle occurred. She said Jennings was returning her mower on the day in question. She came out of the house when Officer Jones had Jennings handcuffed and was taking him to the patrol car. Mazique asked Officer Jones what was going on, and he did not say anything to her. She testified she told Jones that Jennings was her uncle, he was returning her lawnmower, and she could take the keys to the vehicle. She said Jones would not answer any questions so she went back into her house. Mazique testified Jones' patrol car was actually the vehicle that was blocking her driveway.
When she went back into the house, Mazique called Sarah and told her the police had arrested Jennings and she should bring a spare key and come get the vehicle. Mazique said she approached Officer Jones three times and tried to ask him to move his police car so she could get Sarah. She said she tapped on the window one time and asked for the keys to the vehicle, but he just told her to hold on.
Sarah testified that Mazique called her and said the police were in front of her house arresting Jennings and she needed to come get her vehicle. Sarah said Mazique told her she could not pick her up because a police car was blocking her driveway. She said that when she arrived at Mazique's house, her vehicle was in front of the house and the police car was blocking the driveway. Officers told her to wait a minute so she went and sat on Mazique's porch. Shortly thereafter, the officers brought Sarah her keys and told her she could take the vehicle.
Jennings took the stand on his own behalf. He testified he never saw Officer Jones behind him until he got out of the vehicle in front of Mazique's house. He got back into the vehicle immediately after he was ordered to do so by Jones. He did not have any identification because he had left his wallet in his other pants when he changed to mow his niece's lawn. Jennings testified he told Jones the residence was Mazique's house and he was returning her lawn mower. He testified he told Jones the vehicle belonged to Sarah and Jones never asked him for proof of insurance.
Jennings testified Mazique asked Officer Jones several times for the keys to the vehicle, but Jones just ignored her. Jennings said the officers never took the keys out of the ignition and they eventually told Sarah she could take the vehicle and the keys were in the ignition. He said the police car was the vehicle blocking the driveway. On cross-examination, Jennings testified the vehicle belonged to Sarah.
The trial court denied Jennings' motion to suppress. The court found the facts of the case gave Officer Jones a heightened sense of possible danger and no information was communicated by Jennings or Mazique of anyone to take the vehicle until after the tow was ordered and the inventory search conducted. The court concluded:
“So based on the totality of the circumstances, and whatever pertinent information was available to the officer at the time that these events transpired, that he did conduct a lawful stop, that there was a valid arrest warrant for the defendant and that he was not aware of any ability to dispose of the vehicle other than by tow, and the officer's testimony was it was blocking a private driveway. The inventory search was conducted, which is a valid exception to the warrant requirement, so based upon all of that, the Court is going to find that the motion to suppress should be denied.”
Jennings renewed his motion to suppress after presentation of all the evidence. The trial judge—a different judge than had ruled on pretrial motion to suppress—denied the motion and found the search was a valid inventory search. The court also held that even if it was not a valid inventory search, then it was a proper search incident to arrest. A jury convicted Jennings of possession of cocaine, driving without a license, and improper turn signal.
Following trial, Jennings again raised the suppression issue in his motion for a new trial. The trial court again denied the motion. The court stated that while it would have been preferred for Officer Jones to ask Jennings if he had anyone who could come get the vehicle, that was not the only factor in the case. The court relied on the fact that the officer was concerned with Jennings' behavior, the vehicle was blocking a private driveway, and the tow was necessary.
The trial court sentenced Jennings to an underlying term of 10 months' incarceration, granted 18 months' probation on the drug charge, and granted concurrent terms on the traffic offenses. Jennings appeals.
Jennings first argues the trial court erred in denying his motion to suppress the evidence obtained during the inventory search of the vehicle.
An appellate court reviews the district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court's findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). The State bears the burden of proof for a suppression motion, and it must prove to the trial court the lawfulness of the search and seizure. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
Jennings' principal argument is that Officer Jones' complete lack of consultation as to the disposition of the vehicle, in conjunction with the totality of the circumstances, rendered Jenning's decision to call for a tow and perform an inventory search to be unreasonable grounds to uphold a purported impoundment of the vehicle. On the other hand, the State argues the search of Jennings' vehicle was a valid inventory search. The State also argues the lack of insurance on the vehicle was an alternative reason to uphold the inventory search. See K.S.A.2012 Supp. 40–3104(c) (“No person shall knowingly drive an uninsured motor vehicle upon a highway or upon property open to use by the public”). However, this argument by the State was not raised below, was not the reason for ordering the tow, and is negated by the fact that Jones allowed Sarah to drive the vehicle away from the scene.
Generally, a search and seizure of evidence obtained without a warrant is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. State v. Shelton, 278 Kan. 287, 294, 93 P.3d 1200 (2004). An inventory search is an exception to the search warrant requirement, but only if it is conducted under “standardized criteria” or an “established routine”; that is, it will be valid if the police department has a policy regarding conducting such a search and if the policy is followed in the particular case. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990).
Inventory searches serve three purposes: “ ‘the protection of the owner's property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger. [Citation omitted.]’ “ Shelton, 278 Kan. at 294. An officer searching a car after a lawful impoundment may conduct a “warrantless inventory search of the personal property within the vehicle, including the glove box and trunk, when the same may be accomplished without damage to the vehicle or its contents.” State v. Fortune, 236 Kan. 248, 257, 689 P.2d 1196 (1984); see State v. Canaan, 265 Kan. 835, 843–44, 964 P.2d 681 (1998).
In order to impound a vehicle, the police must have authority by statute or ordinance, and if no such authority exists, impoundment is appropriate only if the State establishes “reasonable grounds” for the impoundment. State v. Teeter, 249 Kan. 548, 550–51, 819 P.2d 651 (1991). The prosecution has the burden of proving an impoundment is reasonable under the totality of the circumstances. Shelton, 278 Kan. at 293. Although no bright-line rule specifies or limits the “reasonable grounds” for impoundment, our Supreme Court has identified six situations giving rise to reasonable grounds:
‘ “ “[T]he necessity for removing (1) an unattended-to car illegally parked or otherwise illegally obstructing traffic; (2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver; (3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically defective as to be a menace to others using the public highway; (6) a car impoundable pursuant to ordinance or statute which provides therefore as in the case of forfeiture ... .” ‘ “ Teeter, 249 Kan. at 552, 819 P.2d 651 (citing State v. Boster, 217 Kan. 618, 624, 539 P.2d 294 [1975] ).
The heart of the issue concerning the inventory search in this case is to what extent the operator of a vehicle should be given the opportunity to determine the disposition of the vehicle before impoundment is utilized. Jennings focuses on the cases stating that consultation is but one factor—albeit an important factor—in the ultimate decision to impound the vehicle. On the other hand, the State focuses on the cases that find there is not a constitutional right to consultation prior to impoundment and the Fourth Amendment only requires that the impoundment be reasonable under the totality of the circumstances.
In Fortune, the court held that the operator of a vehicle should be given an opportunity to determine the disposition of the vehicle:
“If the owner, operator, or person in charge of the vehicle is readily available to make a determination as to the disposition of the vehicle then he may do so. If the person responsible for the vehicle desires that the vehicle be left lawfully parked upon the streets or that it be turned over to some other person's custody, then, absent some other lawful reason for impounding the vehicle, his or her wishes must be followed. Only when a vehicle is found illegally parked and unattended, or where the person responsible for its possession is unable ... or unwilling to instruct the arresting officers as to the vehicle's disposition or some other legal reason justifying impoundment exists should the officers assume control over the vehicle.” (Emphasis added.) 236 Kan. at 257.
In Teeter, a policeman noticed Teeter during the early morning hours parked in a bowling alley parking lot with his foot sticking out of a window of the car. The officer approached and asked Teeter for his driver's license and proof of vehicle registration. His driver's license had expired, and the registration showed he was the owner of the vehicle. The officer had Teeter lock his vehicle, and Teeter accompanied the officer to the police department. At the station it was determined that Teeter had no insurance for his vehicle, and arrangements were made for Teeter to spend the night at a local motel. An officer later returned to the motel and obtained the keys to Teeter's vehicle. The chief of police authorized the impoundment of the vehicle on the basis that Teeter had no driver's license or liability insurance and did not know anyone in Hiawatha who could drive the car for him. No inquiry was made of Teeter as to the disposition of his vehicle. An inventory search of the vehicle revealed illegal drugs for which Teeter was arrested the next morning.
Relying upon Boster and Fortune, the Teeter court concluded that all of the evidence must be suppressed, reasoning that Teeter was in his car, parked in a private area when he was first approached, and “[a]lthough Teeter was capable of making decisions about whether to leave his car parked or to arrange for someone else to move or tow it, he was not consulted.” 249 Kan. at 552.
The State points out that in Shelton, the court distinguished Teeter and clarified that a competent driver need not be given an opportunity to arrange for the disposal or removal of a vehicle to avoid impoundment. 278 Kan. at 293. Rather, the Shelton court held that all that is required under the Fourth Amendment was that “the impoundment be reasonable under the totality of circumstances.” 287 Kan. at 293. Further, the Shelton court reasoned that the officer's inquiry of the driver regarding disposition is but one factor, “although an important factor,” that is considered in the court's determination of whether the impoundment is reasonable. 278 Kan. at 293.
Significantly, in Shelton, the court found the facts established reasonable grounds for impoundment. The van was illegally parked in a rural intersection, and the defendant's lawful arrest left the vehicle unattended. Department policy dictated the vehicle be impounded under this situation. The location of the vehicle, a rural intersection, did not justify itself to an immediate lawful disposition of the van. The defendant told officers that no one was around and he lived in another city. Although the defendant was “readily available” and may have been able to suggest an alternative disposition, he did not object or offer any alternatives. The Shelton court held that reasonable grounds existed for impoundment and officers were not required to consult the defendant about an alternative disposition. Denial of the motion to suppress was upheld. 278 Kan. at 296–97.
In State v. Branstetter, 40 Kan.App.2d 1167, 199 P.3d 1272,rev. denied 289 Kan. 1281 (2009), the court applied this impoundment and inventory search jurisprudence to a set of facts close to those in Shelton and closer to those facts in the present case. Branstetter was stopped in Wichita by officers who knew he had several outstanding warrants. Branstetter was not the owner of the vehicle, and there was a passenger in the car. Officers arrested Branstetter and found no outstanding warrants for the passenger. Because the vehicle's registered owner was not present, officers impounded the vehicle without consulting Branstetter regarding its disposition, pursuant to the sheriff's department policy. Officers conducted an inventory search, along with a K–9 sniff as well, and found methamphetamine in the center console. Branstetter later said he had a drug problem and admitted to possession of the methamphetamine.
The Branstetter court discussed Fortune, Teeter, and Shelton and concluded that impoundment of the vehicle was not based on reasonable grounds under the totality of the circumstances and the inventory search was unlawful. 40 Kan.App.2d at 1174–75. The court found the State had failed to establish the car was illegally parked or obstructing traffic, that it was not “unattended” because the passenger was not arrested and eventually driven home by officers, and the sheriff's policy was never produced. 40 Kan.App.2d at 1172. The court concluded: “The totality of the circumstances here— i.e., the vehicle was not ‘unattended,’ illegally parked, or obstructing traffic—does not permit us to disregard the officer's failure to consider permitting the passenger to drive, to consult Branstetter, or to attempt to contact the registered owner regarding disposition.” 40 Kan.App.2d at 1174. The court refused to give officers “carte blanche authority” to impound a vehicle when the registered owner is not present and the operator is arrested because it would “eviscerate the ‘reasonable grounds' test established in Fortune and the ‘totality of the circumstances' analysis espoused by Teeter.” 40 Kan.App. 2 at 1174.
Looking at the totality of the circumstances, we do not find reasonable grounds existed for Officer Jones to impound Jennings' vehicle. Officer Jones testified he requested a tow of the vehicle because it was blocking a private driveway, Jennings was under arrest, and there was no one to take possession of the vehicle. Although the testimony was somewhat unclear as to how much of Jennings' vehicle was blocking Mazique's driveway, it was still illegally blocking the driveway, as was the illegally parked vehicle in Shelton, The relevant Teeter factor here is, “an unattended-to car illegally parked or otherwise illegally obstructing traffic” which would allow the officers to impound the vehicle. 249 Kan. at 552.
However, we are not presented with the same factors showing an “unattended” vehicle as was the case in Shelton. The officers in Shelton testified that Shelton told them no one was around and he lived in another city. The Shelton court also found the rural location prevented immediate lawful disposition of the van. Here, Jennings' stop was in the city, he never said anything about living out of town, and he was not consulted or questioned whatsoever as to disposition of the vehicle.
Under the Fortune test, the fact Sarah was the owner of the vehicle is significant. Fortune suggested that the “owner, operator, or person in charge” of the vehicle should be given an opportunity to determine the disposition of the vehicle. 236 Kan. at 257. It is not clear in the record when Jones determined Sarah was the owner of the vehicle. However, he testified at the motion to suppress hearing that her name came back as the owner of the vehicle. It seems a natural question that if the operator of a vehicle is not the owner, then officers might inquire into the driver's lawful possession of the vehicle. Additionally, since Jennings and Sarah shared the same last name and he was not listed as the owner, then it was logically a relative's vehicle.
The State does not contest the fact that Officer Jones failed to consult Jennings regarding his wishes concerning disposition of the vehicle and does not suggest that Jennings was for some reason unable to do so. The defendant in Fortune was so drunk that “after he was placed in the officer's patrol car he passed out.” 236 Kan. at 249. Consultation with the defendant as to disposition of the vehicle was not even possible. Even a limited inquiry of Jennings in this case would have disclosed several alternatives for quick disposition of the vehicle.
Jennings did not have a constitutional right to consultation on the disposition of his vehicle. Shelton, 278 Kan. at 296. However, the failure of the officers to inquire as to disposition of the vehicle is an important factor. “If the owner, operator, or person in charge of the vehicle is readily available to make a determination as to the disposition of the vehicle then he may do so .” Fortune, 236 Kan. at 257. Officers should not be allowed to turn a blind eye to reasonable investigation in order to permit an inventory search. Within the relatively short period of time following the inventory search, Officer Jones learned Jennings' vehicle was parked in front of his niece's house, he was there to return a lawnmower, she could have taken possession of the vehicle, and his wife could have come and picked up her vehicle. Jones claimed there was no one to take possession of the vehicle. It appears that Jones conducted little investigation in order to be able to make such a claim.
Although incriminating evidence may be discovered as a result of an inventory search, it should not be its purpose. “[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce inventory.” Wells, 495 U.S. at 4. Moreover, “[t]he individual police officer must not be allowed so much latitude that inventory searches are turned into “a purposeful and general means of discovering evidence of a crime.” Colorado v. Bertine, 479 U.S. 367, 376, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (Blackmun, J., concurring). It is these concerns that bother us in this case.
Under the totality of the circumstances, Officer Jones' decision to call for a tow without any discussion with Jennings as to an alternative did not provide reasonable grounds for impoundment. Therefore, there were no grounds for the seizure of the evidence.
We will review the other two arguments raised by Jennings in case there is a review.
Next, Jennings also challenges the reasonable doubt instruction given to the jury. He argues the use of the phrase “any of the claims” instead of “each of the claims” required to be proven by the State diluted the burden of proof and violated his due process rights under the Fifth Amendment to the United States Constitution. Jennings raises this argument for the first time on appeal.
The jury instruction at issue, which was nearly identical to the pre–2005 version of Pattern Jury Instructions, PIK Crim.3d 52.02, stated:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.”
At trial, Jennings did not object to the use of this instruction. As such, we apply the clearly erroneous standard of review outlined in K.S.A.2012 Supp. 22–3414(3) and State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012).
To that end, Jennings does not assert the district court erred by using the word “any” in both portions of the instruction. Rather, Jennings contends “each” should have been substituted for the second “any,” which would make the last sentence read as follows: “[I]f you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) It is Jennings' contention that the instruction is not legally appropriate, because the second use of the word “any” caused the State's burden of proof to be diluted and, therefore, his constitutional rights—the requirement of proof beyond a reasonable doubt under the Fifth Amendment to the United States Constitution and the right to a jury trial under the Sixth Amendment—to be violated. In support of his argument, Jennings relies heavily on Miller v. State, No. 103,915, 2012 WL 401601 (Kan.App.2012) (unpublished opinion), rev. granted 296 Kan. –––– (March 4, 2013).
In 2005, the pattern instruction committee changed the PIK instruction used in this case from the any/any language to the any/each language Jennings argues is constitutionally necessary. The amendment was in response to the Court of Appeals' decision in State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004). See PIK Crim. 4th 51.010; see also Comment, PIK Crim.3d 52.02 (2004 Supp.) (“The Committee has also changed the word ‘any’ to ‘each’ in the last sentence of the instruction in order to be consistent with the instructions throughout PIK Crim.3d which state, To establish this charge, each of the following claims must be proved....' ”). In Beck, however, the Court of Appeals rejected an argument that the any/any language created error; it simply found the any/each wording was preferable. 32 Kan.App.2d at 787.
Critical to resolution of the issue presented by Jennings, the holding in Beck was recently approved by our Supreme Court in State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). Citing Beck, the Kansas Supreme Court in Herbel rejected an identical argument to the one presented by Jennings in this appeal and concluded the pre–2005 any/any version of the PIK instruction, while “not the preferred instruction, it was legally appropriate.” 296 Kan. at 1124. We are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011).
Because Jennings presents no other argument regarding the legal or factual appropriateness of this instruction, we conclude the reasonable doubt instruction in this case was not clearly erroneous.
Last, Jennings argues it was reversible error when the trial court failed to inquire of the jury as a whole as to the accuracy of its verdict.
When the jury returned from its deliberations, the trial court asked the presiding juror if the jury had reached a verdict. The presiding juror advised the court the jury had reached a verdict. The trial court directed the presiding juror to hand the verdict forms to the bailiff. The bailiff published the verdict.
After the bailiff had read aloud the verdict of guilty on all three counts, the trial judge inquired whether counsel wished to have the jury polled. Defense counsel answered in the affirmative. The trial court told the jury: “Ladies and gentlemen, I need to ask each of you if the verdict that was just read here in open court reflects your verdict in this particular case.” The trial court then polled each juror in the following form: “[Juror], does this verdict as read reflect your verdict?” All jurors answered affirmatively. Jennings did not object to the trial court's procedure in accepting the verdicts. After polling the jurors, the trial court accepted the verdicts.
Although Jennings briefly mentions jury unanimity, he does not explicitly call it into question. Instead, he makes the point that “the district court's procedure did not comport with the plain language of K.S.A. 22–3421, which requires an inquiry as to ‘whether it is the jury's verdict.’ “
Our standard of review with regard to both jury unanimity and statutory interpretation is de novo. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010); State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005).
A criminal defendant has a statutory right to a unanimous jury verdict. State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010); see K.S.A. 22–3421; K.S.A. 22–3423(l)(d). As a method to insure unanimity, K.S.A. 22–3421 sets forth a specific procedure for accepting a jury's verdict in a criminal case:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.”
In short, when accepting a jury verdict, district courts are required to follow two separate procedural steps: “First, the trial judge shall inquire whether the verdict read in open court is the jury's verdict. Second, the trial judge must poll the jury if either party requests that the jury be polled.” State v. Womelsdorf, 47 Kan.App.2d 307, Syl. ¶ 7, 274 P.3d 662 (2012).
Here, Jennings focuses on that portion of K.S.A. 22–3421 which requires, with respect to the verdict read by the bailiff, an inquiry made as to “whether it is the jury's verdict.” He claims the trial court's procedure was not in accord with the statutory mandate because the trial court “still had a duty to inquire whether the announced verdict was the verdict of the collective jury .”
At the outset, Jennings did not object to any aspect of the trial court's acceptance of the jury's verdict in the district court. Because this issue is raised for the first time on appeal, we must consider whether it is appropriate for appellate review. It is well-established: “As a general rule, a party cannot raise an issue on appeal where no contemporaneous objection was made and where the trial court did not have an opportunity to rule.” State v. Kirtdoll, 281 Kan. 1138, Syl. ¶ 7, 136 P.3d 417 (2006). Our Supreme Court has applied this general rule to decline review of an issue raised under K.S.A. 22–3421. See State v. Holt, 285 Kan. 760, 175 P.3d 239 (2008). Our court, citing Holt, has also followed this precedent under similar circumstances. See State v. Dunlap, 46 Kan.App.2d 924, 266 P.3d 1242 (2011), pet. for rev. filed December 30, 2011.
Essential to our decision to decline review is that Jennings has not alleged any harm as a consequence of the trial court's procedure used to accept the jury's verdict. In Holt, our Supreme Court refused to consider an objection to polling raised for the first time on appeal where the appellant “failed to show that the polling procedure ... actually harmed him.” 285 Kan. at 770. While in the present case the trial court did not collectively inquire of the jury whether the guilty verdicts were, in fact, the juror's verdicts, the trial court's individual polling of the jurors conclusively established that, unanimously, the jurors had agreed to find Jennings guilty of the charges. As a result, Jennings' statutory right to a unanimous verdict was insured. See 285 Kan. 760, Syl. ¶ 2 (Polling “requires each juror to answer for himself or herself, thus creating individual responsibility and eliminating any uncertainty as to the verdict announced by the foreman.”).
Absent any showing—let alone an allegation—that Jennings received anything other than a unanimous verdict from an impartial jury, Jennings has failed to establish the exceptional circumstances necessary to permit appellate review when no objection was raised before the trial court.
We reverse Jenning's conviction for possession of cocaine and affirm the other convictions.
Affirmed in part and reversed in part.