Opinion
No. 105,896.
2012-11-16
STATE of Kansas, Appellee, v. Douglas A. KLING, Appellant.
Appeal from Marshall District Court; John L. Weingart, Judge. Douglas A. Kling, appellant pro se. Laura E, Johnson–McNish, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Marshall District Court; John L. Weingart, Judge.
Douglas A. Kling, appellant pro se. Laura E, Johnson–McNish, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Acting pro se, Douglas A. Kling appeals his jury convictions of attempted first-degree murder, aggravated kidnapping, aggravated battery, aggravated assault, and criminal threat. Kling raises multiple issues including the sufficiency of the evidence, defects in the complaint, his involuntary decision to represent himself, denial of his motion for change of venue, denial of his suppression motion and his motion to compel production of evidence, retaliatory amending of the complaint by the prosecutor, the requirement he wear leg restraints in the courtroom, the excusing of a juror, and cumulative error.
After careful review of the briefs and the relevant portions of the record, we conclude that none of Kling's issues provides a basis for reversal and we affirm.
Facts
A detailed recitation of the rather bizarre and graphic facts leading to the charges is necessary for an understanding of the issues on appeal. Most are from the evidence and testimony at trial.
At the time of the events that gave rise to Kling's convictions, he was married to Kellie (Kling) Bertot, and they lived in Marysville, Kansas, with their two toddler children. They shared their house with Kling's brother, Steven, and Steven's two young children. Kellie testified as to the following events that unfolded on March 6, 2009. That morning, Steven left for work while Kellie watched the children. Kling woke later that morning and appeared angry or mad because he and Kellie had planned to spend time together including taking a shower together, but Kellie refused because the children were awake. Kling showered alone. After finishing, he claimed a condom was missing from the bathroom and accused Kellie of using it with another man. The couple argued. Kling said he was leaving and began packing his clothing. He demanded Kellie give him her cell phone. A new argument ensued over her refusal to do so. By then it was lunchtime, and Steven had come home. Nothing was said in front of Steven.
After Steven went back to work, the argument over Kellie's cell phone resumed. Kellie told Kling to just take the cell phones and leave. Kling said he would, but he wanted a cigarette. Kling smoked a cigarette in the kitchen. Kellie went to the living room and played with the children for a short while. Believing they had both calmed down, Kellie returned to the kitchen to ask Kling if she could have her cell phone. Kling refused. Kellie asked when he was leaving, but Kling said he was going to smoke another cigarette. After Kling was almost finished with his second cigarette, Kellie asked if he was now leaving. But Kling wanted yet another cigarette. Kellie became aggravated and as she walked out of the kitchen and down the hallway toward the children's bedroom, she called Kling a “fucking psycho.” Kellie went into the bedroom, squatted down, and had just started picking up toys when Kling came up behind and pushed her to the floor. When Kellie turned around, she saw Kling had a butcher knife in his hand. Kling said, “I'll show you a fucking psycho.” Kellie tried to make light of the situation, but Kling shoved her onto the bed, saying, “Do you remember when you said that you couldn't live without me? Well, I meant it.”
Kellie got up and tried again to get past Kling, who was blocking the door. This time Kling pushed Kellie onto the bed, jumped on top of her, and started stabbing her in the head. Kellie repeatedly said, “Please stop, Doug.... The kids.' “ All four children were at the doorway screaming. Kellie kicked at Kling, but while she was trying to push him away, he stabbed her in the abdomen. The 8–inch blade broke off in Kellie's stomach. They both struggled to get the blade, but it came out and fell between the bed and wall. Kling then started striking Kellie on the head with the knife handle. Kellie slid off the bed and tried to stand up. Kling went to the door to block the exit. When Kellie tried to get through the door, Kling spun her around and put her in a headlock. Kellie apparently blacked out because she woke up on the floor. While she was on the floor, Kling started stomping on her head and stomach.
Kellie blacked out again. When she regained consciousnes, she saw Kling walking into the bedroom with a serrated knife. He started stabbing Kellie in the neck and head. At some point during the attack, Kling checked the time on his cell phone. He said Steven would be home soon but Kellie was not dying fast enough. He was just going to cut her throat and get it over with. Just as Kling moved the knife to her throat, Kellie managed to pull back and suffered only a nick. Kling then said he would stab Kellie in the chest. Kellie begged Kling, saying she did not want to die like this and would he just let her go to sleep and die in her sleep. Kling refused because his brother would be home soon. Kling asked Kellie, “Well, how do you want to die?” Kellie said, “I don't want to be stabbed anymore, please. I just don't want to be stabbed no more.... Just cut my wrists.” Kling complied. He held Kellie's arm down and started cutting her wrist. But Kling then reportedly said, “What's wrong? You're not bleeding enough.” Believing the knife was too dull, Kling returned to the kitchen to retrieve yet another knife. Kling renewed his attempt to cut Kellie's wrist and cut her arms in multiple areas. When Kellie said she was cold, Kling helped her on the bed and covered her up. Kellie told Kling she needed to use the bathroom. Kling said, “Just go.... When you die ... your body goes to the bathroom anyway.” Kellie recalled Kling pacing in front of the bed, talking to himself, saying he would hide her body in the boys' closet and put the dresser in front of it because Steven would be home soon.
Throughout the 3–hour ordeal, there were periods when the attack stopped and Kellie and Kling would talk or pray together. After refusing to let Kellie see the children one last time, Kling eventually asked her if she wanted anything before she died. Kellie, knowing the only remaining cigarettes were outside in the car, said she wanted a cigarette. As soon as Kellie heard the back door open, she got off the bed and ran out of the house.
Two women were walking in front of the house when she ran outside. Kellie asked them to call 911. The women saw a man run out the side door of the house. When the man appeared to turn around and run toward the street, they told Kellie to run. The women saw the man change course, get in a car, and drive off. Kellie managed to run a little further but collapsed in the middle of the road just as a truck was pulling onto the street. The driver, Sean Cohorst, checked on Kellie and the children and then stayed with Kellie until the ambulance arrived. Officer Larry Wenzl arrived at 4:42 p.m. Officer Wenzl noted that Kellie was in horrific condition, completely covered and drenched in blood.
Mary Hampl, a registered nurse, was working in the emergency room when Kellie arrived. She testified that Kellie had numerous stab wounds on her head, arms, and abdomen. Every time one wound was cleaned and sewn up, they would find another wound. Dr. Fernando Ugarte and another doctor worked on Kellie for 2 to 3 hours repairing lacerations. The next day, Dr. Ugarte had to operate on Kellie to repair a laceration to her liver.
Special Agent Steve Bundy of the Kansas Bureau of Investigation was called to assist in the investigation. After obtaining a search warrant, he entered the house. He observed a significant amount of blood in the children's bedroom—on the bed, the bedding, the wall, and throughout the bedroom. Blood splatter on the bedroom door indicated the door was closed during at least part of the attack. Two knives were observed sitting on the bedroom dresser. A third knife, without a handle, was discovered stuck between the wall and floorboard. In the kitchen, Agent Bundy found the knife handle on the kitchen counter with human hairs stuck between the wooden halves.
Kling was apprehended in Iowa. On March 9, 2009, Agent Bundy and Officer Wenzl brought Kling back to Kansas. On the way, Bundy advised Kling of his Miranda rights, and Kling said he understood. During their conversation, which was recorded, Kling admitted to stabbing Kellie. He said he did not really know why it happened.
The jury found Kling guilty as charged. The district court then sentenced Kling to a controlling prison term of 430 months. Kling appeals.
We will mention additional facts in the opinion where necessary for discussion of the issues.
Sufficiency of the Evidence to Support the Convictions for Attempted First–Degree Murder, Aggravated Kidnapping, and Aggravated Assault
“The standard of review for a challenge to the sufficiency of the evidence in a criminal case is whether, after review of all the evidence, examined in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. It is the function of the jury, not an appellate court, to weigh the evidence and to determine the credibility of witnesses.” State v.. Portillo, 294 Kan. 242, Syl. ¶ 1, 274 P.3d 640 (2012).
Attempted First–Degree Murder
Kling specifically challenges the evidence of premeditation to support his conviction of attempted first-degree murder. The jury instructions included the following definition of premeditation: “Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another's life.”
The Kansas Supreme Court has stated that premeditation and deliberation may be established by inference from the proven facts in a case.
“Premeditation and deliberation may be inferred from the established circumstances of a case, provided the inference is a reasonable one. [Citation omitted.] Prior cases have listed factors to consider when determining the question of premeditation: (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. [Citation omitted.]” State v. Scaife, 286 Kan. 614, 617–18, 186 P.3d 755 (2008).
Kling contends the following facts logically support an inference that his actions were spontaneous and unplanned. Looking at his actions before the attack, Kling contends he would not have committed to a new job or packed his bags to leave the morning of the crime yet leave his clothing behind when he fled had he been planning a killing. Further, he maintains that if he was plotting to kill Kellie, he would not have asked her repeatedly if she cared for him because it would not have mattered. Kling also points out that immediately before the attack, Kellie had called him a “fucking psycho.” Thus, Kling maintains his act of grabbing the nearest weapon—a knife from the kitchen counter—was made at the height of extreme emotion and not an indication of premeditation.
Additionally, Kling contends his actions during and following the attack show the lack of premeditation. He suggests Kellie's wounds were random rather than evidencing a preconceived design to kill. He suggests his attack was out-of-control as more typically seen in a heat of passion crime. He maintains, had he truly planned to kill Kellie, it would not have taken 3 hours and included periods where he and Kellie talked and prayed. Finally, he suggests his comment about hiding Kellie's body in the closet further supports the absence of premeditation because, had he acted with premeditation, he would have formed a plan to dispose of the body.
Kling misconstrues the definition of premeditation. Premeditation does not necessarily mean that an act is planned, contrived, or schemed beforehand. State v. Scott, 271 Kan. 103, 108, 21 P.3d 516 (premeditation is the time of reflection or deliberation), cert. denied534 U.S. 1047 (2001). The fact that Kling took a knife from the kitchen and attacked Kellie after she called him a psycho might suggest Kling acted under a sudden impulse. But other circumstances provide strong evidence from which the jury could easily infer premeditation. Kling was angry with Kellie before she called him a psycho. When Kling was being transported back to Kansas, he told Officer Wenzl and Agent Bundy that he attacked Kellie because he thought she was having an affair and because their plans to shower together had been spoiled. These alleged triggers for Kling's behavior occurred before Kellie called him a psycho, contradicting his claim that he acted spontaneously or in the heat of passion at being called a profane name.
Kling's comments to Kellie throughout her ordeal provided additional evidence of deliberation. He asked Kellie, “Do you remember when you said that you couldn't live without me? Well, I meant it.” Kling told Kellie she was not dying fast enough so he was going to cut her throat. When Kellie begged Kling to stop stabbing her, he asked her, “Well, how do you want to die?”
In addition to his comments, Kling's actions during the attack were more than enough to establish premeditation. When he failed to kill Kellie with the butcher knife, he went back to the kitchen two more times for additional knives. Despite Kellie's pleas to stop and call 911, Kling continued his attack and refused to seek medical attention for Kellie. See State v. Hill, 290 Kan. 339, 363, 228 P.3d 1027 (2010) (evidence that defendant did not seek medical attention for the victim circumstantially supports premeditation and intent to kill); State v. Holmes, 278 Kan. 603, 634, 102 P.3d 406 (2004) (same).
The State provided more than sufficient evidence to prove premeditation beyond a reasonable doubt.
Aggravated Kidnapping
In defining aggravated kidnapping, we must first note the definition of kidnapping. It is “the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person ... (b) to facilitate flight or the commission of any crime.” K.S.A. 21–3420. Aggravated kidnapping, then, is kidnapping when bodily harm is inflicted on the victim. K.S.A. 21–3421.
Kling contends the record lacked substantial and competent evidence to support a taking or confinement in order to convict him of this charge. The jury was instructed that in order to establish the charge of aggravated kidnapping, the following claims had to be proved:
“1. That the defendant confined Kellie (Kling) Bertot by force;
“2. That it was done with the intent to hold such person to inflict bodily injury or terrorize the victim;
“3. That bodily harm was inflicted upon Kellie (Kling) Bertot; and
“4. That this act occurred on or about the 6th day of March, 2009, in Marshall County, Kansas.”
As to Kling's argument that there was no evidence of a “taking,” the instructions clearly indicate that was not an issue submitted to the jury and it was limited to considering as the first element of the crime whether Kling “confined” Kellie. Turning to that issue and citing State v. Patterson, 243 Kan, 262, 755 P.2d 551 (1988), Kling contends any confinement must be a separate act from the bodily injury. We agree. In Patterson, the victim voluntarily entered a car with two men she had met at a bar. The Patterson court held that the victim had not been held against her will and there was no evidence of a confinement separate from the beating and stabbing. The Patterson court specifically noted there was no evidence the victim asked or tried to leave the car. 243 Kan. at 264–65.
However, where we disagree with Kling is that Patterson is distinguishable, and the evidence here clearly shows that he held or confined Kellie. Before the attack, he blocked her exit from the bedroom. Kellie testified that when she tried to squeeze by, Kling would not allow her to leave, and he pushed her away or back into the room. She testified that during the attack and after the blade broke off in her stomach, she tried to get out of the bedroom, but Kling blocked the door, spun her around, and put her in a headlock. Agent Bundy testified that Kling admitted to holding Kellie in the bedroom. There was sufficient evidence of confinement apart from Kling's acts of violence.
Aggravated Assault
Kling claims the State's theory of assault was Kellie's testimony that he put a knife to her throat and cut her neck. According to Kling, this act may have supported the charge of battery, but it was insufficient to support his conviction for aggravated assault. In response, the State suggests Kling is making a multiplicity argument and, under State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), there was sufficient evidence of separate conduct supporting aggravated assault as opposed to aggravated battery.
In order to prove aggravated assault, the jury was instructed it must find:
“1. That the defendant intentionally placed Kellie (Kling) Bertot in reasonable apprehension of immediate bodily harm.
“2. That the defendant used a deadly weapon; and
“3. That this act occurred on or about the 6th day of March, 2009, in Marshall County, Kansas.”
Kling fails to discuss the other evidence that supports the aggravated assault conviction in addition to his holding a knife to Kellie's throat. As the State points out, the evidence that Kellie turned around in the bedroom to see Kling standing in the doorway holding a butcher knife in his hand was sufficient to prove aggravated assault.
Defects in the Complaint
Kling next argues the complaint was insufficient to charge attempted murder in the first-degree, aggravated assault, and criminal threat. Kling timely filed a motion to arrest judgment.
The question of whether a complaint sufficiently charges a crime in order to give the trial court jurisdiction is a question of law. State v. Scott, 286 Kan. 54, 62, 183 P.3d 801 (2008).
“In analyzing whether an information is sufficient, this court applies one of two tests, depending on when the objection is raised. [Citations omitted.] When a defendant files a motion for arrest of judgment based on a defective information, the pre-[State v. Hall, 246 Kan. 728, 764, 793 P.2d 737 (1990)overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003),] standard applies. Under this standard, an information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed. State v.. Sanford, 250 Kan. 592, 600–01, 830 P.2d 14 (1992). However, even under the pre- Hall standard, an information is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or others of the same import so long as the defendant is fully informed of the particular offense charged and the court is able to determine under what statute the charge is founded. State v. Micheaux, 242 Kan. 192, 197, 747 P.2d 784 (1987).” Scott, 286 Kan. at 62–63.
Attempted First–Degree Murder
The third amended complaint/information set out the charge of Count 1, attempted murder in the first degree as follows:
“That on or about the 6th day of March 2009, the above-named defendant, within the above-named County in the State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas intentionally and with premeditation attempted to kill a human being, Kellie (Kling) Bertot.
“Contrary to K.S.A. § 21–3401(a) and K.S.A. § 21–3301(a), and any amendments thereto.”
Kling argues the district court erred in denying his motion for arrest of judgment because this complaint failed to (1) state the intent to commit first-degree murder, (2) allege an overt act toward the perpetration of first-degree murder, and (3) allege a failure to consummate the crime. See K.S.A. 21–3301(a); Swenson v. State, 284 Kan. 931, 942, 169 P.3d 298 (2007) (setting out the three elements of attempt).
Clearly the complaint specified Kling intended to commit a premeditated killing and, since he attempted to do so, he obviously failed to complete the crime. That leaves us then to determine whether the omission of the allegation of the “overt act toward the perpetration of the crime” rendered the complaint fatally defective. Prior case precedent, both federal and Kansas state cases, defeat Kling's argument on this point.
In United States v. Resendiz–Ponce, 549 U.S. 102, 127 S.Ct. 782, 166 L. Ed 2d 591 (2007), the United States Supreme Court held that the use of the term “attempt” in the indictment implicitly alleged the defendant engaged in the necessary overt acts to charge the defendant with the offense of illegally attempting to reenter the United States. The Court reasoned that, “not only does the word ‘attempt’ as used in common parlance connote action rather than mere intent, but more importantly, as used in the law for centuries, it encompasses both the overt act and intent elements.” 549 U.S. at 107.
The United States Supreme Court's observation on lesser included offenses is also relevant:
“Federal Rule of Criminal Procedure 31(c) is also instructive. It provides that a defendant may be found guilty of an attempt to commit the offense charged; or ... an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right.' Fed. Rules Crim. Proc. 31(c)(2)-(3). If a defendant indicted only for a completed offense can be convicted of attempt under Rule 31(c) without the indictment ever mentioning an overt act, it would be illogical to dismiss an indictment charging ‘attempt’ because it fails to allege such an act .” 549 U.S. at 110, n. 7.
The same observation is true under Kansas law. In a criminal case, the charging document provides the district court with subject matter jurisdiction over the crimes charged and any lesser included offenses of the crimes charged. State v. Horn, 20 Kan.App.2d 689, 692, 892 P.2d 513,rev. denied 257 Kan. 1095 (1995). An attempt to commit the crime charged is a lesser included offense of the charged crime. K.S.A. 21–3107(2)(c).
“Although we have stated a pre- Hall standard emphasizes ‘technical considerations, rather than practical considerations,’ [State v. Hooker, 271 Kan. 52, 61, 21 P.3d 964 (2011),] we have also held ‘an information should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.’ Micheaux, 242 Kan. at 199. In Micheaux, we quoted from State v. Morris, 124 Kan. 505, 508, 260 Pac. 629 (1927), that ‘the day [has] passed in this jurisdiction “when criminals can hope to go unwhipped of justice because of the want of a technical recital in a criminal information which neither misled nor prejudiced them in the preparation or management of their defense.’ “ 242 Kan. at 197.” Scott, 286 Kan. at 64.
See also State v. Sims, 254 Kan. 1, 9, 862 P.2d 359 (1993) (complaint is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import).
Here, the use of the word “attempted” in Count 1 conveyed the equivalent of (1) intent to commit the crime, (2) an overt act toward the perpetration of the crime, and (3) failure to consummate the crime. There can be little question that Kling fully understood that he was on trial for the attempted first-degree murder of Kellie.
Aggravated Assault
Count IV of the complaint charged the crime of aggravated assault in the following words:
“That on or about the 6th day of March 2009, the above-named defendant, within the above-named County in the State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully, intentionally, and feloniously place Kellie (Kling) Bertot in reasonable apprehension of immediate bodily harm with a deadly weapon.
“Contrary to K.S.A. 21–3410(a), and any amendments thereto.”
Citing Zapata v. State, 14 Kan.App.2d 94, 96, 782 P.2d 1251 (1989), Kling argues the complaint charging him with aggravated assault was defective because it failed to allege he acted with the apparent ability to inflict bodily harm.
Kling fails to acknowledge that K.S.A. 21–3408 has been amended since the Zapata decision. A charge of aggravated assault no longer requires an allegation that the defendant acted with the apparent ability to do bodily harm. K.S.A. 21–3408 now defines assault as “intentionally placing another person in reasonable apprehension of immediate bodily harm.” The use of a deadly weapon makes the offense an aggravated assault. K.S.A. 21–3410(a). The charge of aggravated assault as set out in the complaint tracked the language of the statute and properly advised Kling of the charged crime.
Criminal Threat
Count V charged the crime of criminal threat as follows:
“That on or about the 6th day of March 2009, the above-named defendant, within the above-named County in the State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully, intentionally, and feloniously threatened to kill Kellie (Kling) Bertot and that such threat was communicated with the intent to terrorize said Kellie (Kling) Bertot.
“Contrary to K.S.A. 21–3419(a)(1), and any amendments thereto.”
As his last challenge to the complaint, Kling argues Count V was defective because: it failed to set forth the element of a threat to commit violence; the complaint did not state what deadly weapon was used; and the complaint was ambiguous since it initially stated the offense was a severity level 7 person felony but then stated it was a severity level 9 person felony. Kling suggests had he known this crime was a severity level 9 person felony, he would have seriously considered accepting a plea to that charge.
Kling's argument has no merit. The complaint substantially followed the language of the statute. Criminal threat is any threat to commit violence communicated with the intent to terrorize another. K.S.A. 21–3419(a)(l). Criminal threat is a severity level 9 person felony. K.S.A. 21–3419(b). A threat to kill obviously denotes an intent to commit violence. Further, although the complaint initially identified this offense as a severity level 7 person felony, the complaint correctly stated the statutory provision and that this offense was a severity level 9 person felony. The initial identification of this count as a severity level 7 person felony appears to be a typographical error and has no relevance to the elements of the offense. See K.S.A. 22–3201(b) (error in citation or its omission is not grounds for dismissal of the complaint if the error or omission did not prejudice the defendant).
The Denial of Kling's Request for Substitute Counsel and His Decision to Represent Himself
For his next issue, Kling contends (1) the district court erred in denying his request for substitute counsel in light of his irreconcilable conflict and lack of communication with appointed counsel and (2) his decision to proceed pro se and waiver of counsel was involuntary. The State asserts that Kling's conclusory allegations of conflict were insufficient to show justifiable dissatisfaction with his attorney and Kling knowingly and voluntarily decided to represent himself.
Denial of Appointment of New Counsel
A district court's refusal to appoint new counsel is reviewed under an abuse of discretion standard. The appellant courts will find an abuse of discretion when “(1) no reasonable person would have taken the view adopted by the district court, (2) the district court's exercise of discretion was based on an error of law, or (3) the facts upon which the district court made the discretionary decision are not supported by substantial competent evidence in the record. [Citation omitted.]” State v. Bogguess, 293 Kan. 743, 753, 268 P.3d 481 (2012).
“ ‘Furthermore, to warrant substitute counsel, a defendant must show “justifiable dissatisfaction” with appointed counsel. Justifiable dissatisfaction includes a showing of a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between counsel and the defendant. [Citation omitted .] But ultimately, “1[a]s long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel.’ “ [Citations omitted .]' “ Bogguess, 293 Kan. at 753–54 (citing State v. Sappington, 285 Kan. 158, 166, 169 P.3d 1096 [2007] ).
We have examined the record and find Kling's claims on this issue are without merit. He filed two different motions for new counsel. In the first one, he alleged that he and his counsel did not see “eye to eye” on some aspects of his case and he would be better served by a lawyer with a smaller case load. Then at the hearing on the motion, he merely alleged there was “a lot investigating I would like done that hasn't been done.” The district court denied the motion.
In a second motion, Kling alleged that another inmate in the jail told him that his lawyer had tried to convince the inmate to lie in a separate case involving Kling. Kling reiterated this to the district court at the hearing on this second motion and stated it was difficult to trust his lawyer because of what he had heard, and he felt there was a conflict. The court then asked the lawyer if he had had the conversation with the other inmate as alleged, and he stated that he had not. In response to another question from the court, the lawyer stated that he felt there had been good communication with Kling. The court found the lawyer's testimony credible and denied the second motion.
Kling's conclusory assertion that a conflict existed was insufficient to warrant the district court's appointment of new counsel. Further, his lawyer represented to the court that there had not been a breakdown in communication. We will not reweigh the evidence or resolve credibility disputes. See State v. Diaz–Ruiz, 42 Kan.App.2d 325, 329, 211 P.3d 836 (2009). Finally, the district court made an adequate inquiry into Kling's complaints. See Sappington, 285 Kan. at 169 (trial court must make some investigation into the defendant's complaints in order to determine whether to appoint new counsel). The district court did not abuse its discretion by denying Kling's request for new counsel.
Kling's Decision to Represent Himself
Generally, the extent of the right to assistance of counsel is a question of law over which this court exercises unlimited review. See Robertson v. State, 288 Kan. 217, 227, 201 P.3d 691 (2007); see also United States v. Jones, 489 F.3d 243, 247 (6th Cir.2007) (appellate court reviews de novo the legal question of scope of right to self-representation).
“A defendant who clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself or herself after a knowing and intelligent waiver of his or her right to counsel. A knowing and intelligent waiver requires that the defendant be informed of ‘the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.’ “ Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); see State v. Vann, 280 Kan. 782, Syl. ¶ 3, 127 P.3d 307 (2006). The right to represent oneself is implicit in the structure of the Sixth Amendment. ‘The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.’ 422 U.S. at 819. A trial court may not measure a defendant's competence to waive his or her right to counsel by evaluating the defendant's ‘technical legal knowledge.’ Godinez v. Moran, 509 U.S. 389, 399–400, 125 L.Ed.2d 321, 113 S.Ct. 2680 (1993).” State v. Jones, 290 Kan. 373, 376–77, 228 P.3d 394 (2010).
Kling contends he was forced into the decision to proceed pro se by his conflict with counsel. He further asserts the district court failed to provide him with the necessary information in order to make an intelligent and knowing waiver of counsel. However, Kling did not raise the allegation of a conflict when asked why he wanted to represent himself in the present case. He apparently wanted to represent himself because he had done so in his earlier cases, and he believed he could do a competent job. Further, the record on appeal does not support Kling's claim that the district court failed to adequately inform him of the dangers and disadvantages of self-representation. Our review of the record establishes precisely otherwise. Finally, Kling had first-hand knowledge of the pitfalls of self-representation because he experienced two recent jury trials and represented himself in at least one of the cases. This issue has no merit.
The Denial of a Request for a Change of Venue
Kling argues the district court abused its discretion in denying his motion to change venue because Kellie and he were well known in the community, the court had restricted him from probing for potential juror bias resulting from pretrial publicity, and prejudice from the denial is demonstrated in the fact the jury returned a guilty verdict on all charges in approximately 15 minutes despite insufficient evidence to support the convictions.
The district court's decision on a motion to change venue is entrusted to the sound discretion of the court. This decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is on the defendant to show prejudice exists in the community. This showing cannot be a matter of speculation but a demonstrable reality. State v. Higgenbotham, 271 Kan. 582, 591–92, 23 P.3d 874 (2001); State v. Parker, 48 Kan.App.2d 68, ––––, 282 P.3d 643 (2012), petition for review filed September 10, 2012.
K.S.A. 22–2616(1) states:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
The appellate courts consider additional factors to determine whether a motion for change of venue should have been granted. Those factors include: (1) the ease with which a jury was selected; (2) the degree to which publicity had circulated to other parts of the state where the trial could have been held; (3) the challenges exercised by the defendant during jury selection; (4) whether government officials contributed to the pretrial publicity; (5) the severity of the offense; and (6) the size of the area from which jurors were drawn. Higgenbotham, 271 Kan. at 592;Parker, 48 Kan.App.2d at ––––.
The district court did not abuse its discretion by refusing to grant Kling's motion to change venue. There is no question Marshall County is not heavily populated and the town of Marysville is small. Furthermore, newspaper publicity was fairly extensive in light of the severity of the crimes, and Kling had another pending criminal case in Marshall County. But newspaper publicity alone is never enough to establish prejudice. State v. Verge, 272 Kan. 501, 508, 34 P.3d 449 (2001); Parker, 48 Kan.App.2d at ––––.
Furthermore, Kling did not include a transcript from voir dire. Accordingly, he fails to show whether potential jurors were biased against him and whether there was difficulty selecting a fair and impartial jury in Marshall County. See State v. Holmes, 278 Kan. 603, 612, 102 P.3d 406 (2004) (appellant has the burden to furnish a record which affirmatively shows that prejudicial error occurred in the trial court and, without such a record, the appellate court presumes the trial court's action was proper).
Finally, Kling provides no support for his contention that the jury was biased because it reached a verdict in short order. Contrary to Kling's assertion, the evidence was overwhelming and, though deliberation was short, there is no indication the jury did not give proper consideration to the evidence and jury instructions in this case. See State v. Sparks, 217 Kan. 204, 212, 535 P.2d 901 (1975) (20–minute jury deliberation, standing alone, did not support defendant's claim that pretrial publicity prevented him from receiving a fair trial); State v. Lee, 201 Kan. 177, 181, 440 P.2d 562 (1968) (“common knowledge among bench and bar that juries have reached unimpeachable verdicts within less time”—verdict reached in 49 minutes), disapproved on other grounds in State v. McCullough, 293 Kan. 970, 982, 270 P.3d 1142 (2012).
The Denial of Kling's Motion to Suppress His Confession
Kling next argues the district court erred in denying his motion to suppress the confession given to Officer Wenzl and Agent Bundy on his return from Iowa. Kling claims his confession was involuntary and coerced in light of the fact he was interrogated over the course of 5 hours; he attempted to withdraw by stating he did not want to talk anymore and by asking to speak with a therapist; and his mental condition was questionable because he had not eaten in several days and was under the stress of believing his wife was having an affair and the horror of his attack. He then maintains he was forced to present the entire confession to the jury to counteract the State's decision to pick and choose what incriminating statements were presented and to show the coercive nature of the interrogation.
“ ‘In reviewing a trial court's ruling on a suppression issue, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. [Citations omitted.]’ State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010).” State v. Gilliland, 294 Kan. 519, 527, 276 P.3d 165 (2012).
Kling's argument fails. He has failed to show where in the record he objected when the State offered his statements into evidence. To preserve an issue for appeal, a party must make a timely and specific objection to the admission of evidence at trial. See K.S.A. 60–404; State v. Gaona, 293 Kan. 930, 956, 270 P.3d 1165 (2012); State v. King, 288 Kan. 333, Syl. ¶ 6, 204 P.3d 585 (2009). Further, when the district court has denied a motion to suppress, the moving party must object to the evidence at the time it is offered at trial to preserve the issue for appeal. State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009).
Besides the fact that Kling failed to preserve this issue for appellate review, he undermined the argument he makes now when he offered the recording of his statement claiming it was necessary to show the coercive nature of the interrogation. While Kling was able to illustrate to the jury much of what he claims rendered the statements involuntary—he allegedly had not eaten for days, he told the officers he wanted to talk to someone such as a therapist, and there was something wrong with his head—his admission of the recording can be considered invited error. See State v. Anthony, 282 Kan. 201, 215, 145 P.3d 1 (2006); State v. Kirtdoll, 281 Kan. 1138, 1150, 136 P.3d 417 (2006) ( “A litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal.”).
The Denial of Kling's Motion to Compel the Production of Evidence
Kling next argues the district court erred in denying his motion to compel the production of evidence, specifically a telephone conversation he had with Kellie while he was in jail. He maintains this was impeachment evidence improperly withheld by the State in violation of its obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The district court's ruling on a defendant's motion for discovery of evidence in the State's possession will be set aside only upon a showing of abuse of discretion. State v. Davis, 266 Kan. 638, 643–44, 972 P.2d 1099 (1999).
The three components of a Brady violation claim are (1) the evidence at issue must be favorable to the defendant because it is exculpatory or impeaching; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) the evidence was material so as to establish prejudice. State v. Warrior, 294 Kan. 484, 506, 277 P.3d 1111 (2012).
Kling's claim has no merit. He mischaracterizes the record and provides no support for his assertion that such a recording even exists. The State represented to the district court that it had turned over all tapes of recorded telephone conversations to Kling's lawyer and it was not aware of any exculpatory evidence in the recordings. It also represented to the court that it had no intention of introducing any of the recordings at trial.
The district court did not abuse its discretion. The court found the State had furnished all available tapes to Kling's lawyer who then gave the tapes to Kling and/or jail officials and that Kling had had an opportunity to review them. Furthermore, there is no indication that a tape of a telephone conversation between Kellie and Kling ever existed as he claims.
Retaliatory Filing of the Charge of Aggravated Kidnapping by the State
Kling next argues that his constitutional rights were violated because the State amended the complaint to add a charge of aggravated kidnapping in retaliation for his refusal to waive extradition. Again, his argument fails.
Kling is raising this issue for the first time on appeal. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010) (constitutional issues cannot be asserted for the first time on appeal); State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008) (generally, issues not raised before the district court cannot be raised on appeal).
Furthermore, Kling's allegations lack any plausibility in the record on appeal. He claims his lawyer visited him and tried to persuade him to waive extradition and told him if he would not do so, the State would charge him with a severity level 1 felony. He claims he told the lawyer that he was already charged with a severity level 1 felony—attempted first-degree murder. The lawyer then returned a few days later and told Kling that if he did not waive extradition, an additional severity level 1 felony—aggravated kidnapping—would be charged. However, the record reflects that Kling's lawyer was not appointed to the case until March 12, 2009, after Kling was returned from Iowa on March 9, 2009, after he had waived extradition. The State did not file the aggravated kidnapping charge until July 21, 2009.
This issue is not properly before this court.
Leg Restraints
Kling next argues the district court required him to wear visible leg restraints throughout trial, which was prejudicial and denied him a fair trial. The State contends Kling failed to preserve this issue for appeal and, in any event, there were special circumstances that would have justified discreet restraints.
Again, Kling raises this argument for the first time on appeal and also fails to designate a record to support it. Thus, if Kling indeed was required to wear leg restraints, it is impossible to determine the basis for the district court's decision and whether the restraints were visible to the jury. See State v. Race, 293 Kan. 69, 82–83, 259 P.3d 707 (2011) (reviewing Kansas caselaw discussing the use of shackles in the presence of the jury). The issue is not properly before this court. See State v. Roberts, 293 Kan. 1093, 1095–96, 272 P.3d 24 (2012) (declining to consider defendant's allegation of cruel and unusual punishment or remand for findings when the issue was raised for the first time on appeal).
In any event, the evidence in this case was overwhelming and, even if we accept Kling's allegation as true, the error did not affect King's substantial rights or the verdict in light of the entire record and the substantial evidence against him. See State v. Ward, 292 kan. 541, Syl. ¶¶ 5–6, 8, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012); see also Race, 293 Kan. at 80–81, (discussing Ward's harmless error analysis and whether prejudicial conduct exists; citing State v. Alexander, 240 Kan. 273, 729 P.2d 1126 (1986) for grounds that other jurisdictions have held defendant's appearance before jury in shackles harmless, given evidence of defendant's guilt).
The District Court's Excusing of a Juror and Replacing that Juror with an Alternate
According to Kling, during voir dire it came to light that two potential jurors had an immediate relative who worked for the Marshall County District Attorney's Office. Kling maintains he was unsuccessful in striking both for cause and, although one was removed, the district court erred in not removing the other person, who became an alternate. Kling complains the court abused its discretion in excusing a juror early the first day of trial and replacing him with this alternate. Kling suggests this smacks of a conspiracy and the substitution, combined with the ex parte communication with the juror and the court's lack of examination of the juror, violated his rights under the Fifth, Sixth, and Fourteenth Amendment to the United States Constitution. Kling urges us to find this was structural error warranting reversal of his convictions.
The record indicates that after the State made opening statements and before the district court resumed after a lunch recess, the court held a hearing in chambers on the record in the presence of the State, Kling, standby counsel, and the bailiff. The court relayed that a juror had approached the bailiff during the lunch recess, out of the presence of the other jurors. The juror was upset and emotional, stating he felt he was being treated unfairly because other potential jurors were excused from service because they knew someone, but he was being put out because he would have to cancel a board meeting. The bailiff affirmed the juror was “extremely emotional” and “crying the whole time he was talking to me.” The district court proposed to excuse the juror for his condition and proceed with the alternate. Kling objected, not to the use of the alternate but to excusing the juror “[b]ecause I don't' think that shows any kind of prejudice. He did say he would be able to serve and make a fair decision.” The court then ordered the juror excused for health reasons because he was so emotional and the clerk had observed that it was difficult physically for him to continue.
The district court's decision to substitute one juror for reasonable cause with an alternate is reviewed for abuse of discretion. This is particularly true where the substitution is made early in the trial before jury deliberations as was the situation here. The defendant has the burden of demonstrating substantial prejudice before an appellate court will find the district court abused its discretion. See K.S.A. 22–3412(c); State v. Martinez, 288 Kan. 443, 446, 204 P.3d 601 (2009); State v. Folkerts, 229 Kan. 608, 616, 629 P.2d 173,cert. denied454 U.S. 1125 (1981).
Kling was present in chambers when the district court considered excusing the juror and substituting the alternate. The court heard Kling's objection, and the court stated its reasons for excusing the juror. The record does not demonstrate an abuse of discretion, and it does not support Kling's conclusory claim that this alleged error “very likely affected the entire trial.” As we noted earlier, the evidence in this case was overwhelming.
Cumulative Error
Finally, Kling contends that cumulative trial errors substantially prejudiced his right to a fair trial. “Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). A single error will not constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).
The record failed to establish that any of the errors occurred as alleged by Kling in this appeal. There was no cumulative error that denied Kling the right to a fair trial.
Affirmed.