Opinion
No. 105,730.
2012-10-12
STATE of Kansas, Appellee, v. Parish L. LABROI, Appellant.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Lesley A, Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Lesley A, Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Defendant Parish L. Labroi of criminal possession of a firearm, a felony, in Sedgwick County District Court, and he appeals on the grounds the trial judge responded to a question from the jury during its deliberations in a way that compromised his statutory and constitutional rights both because he was not personally present and because the response was substantively deficient. Although the trial judge erred in responding without insuring Labroi's presence, the error was harmless beyond any reasonable doubt in no small part because the response was legally correct. Labroi's conviction is, therefore, affirmed.
Early on February 8, 2010, Wichita police officers were sent to a local hotel in response to a disturbance call. Coriaynia Porter told Officer James Hook that she had a fight with Labroi, who she described as her boyfriend. At that time, Porter told Officer Hook that Labroi had struck her without provocation and she had fought back. Porter said Labroi likely had gone to another room in the hotel. Officer Karen Blank went in search of Labroi. In the meantime, Officer Hook asked Porter about a firearm that had been mentioned in the initial radio call from the police dispatcher. Porter showed Officer Hook a rifle between the bed and the wall of the room and told him the gun belonged to Labroi. Officer Hook passed that information along to Officer Blank.
Officer Blank caught up to Labroi in another room and, after reading him the Miranda warnings, asked him about the rifle. According to Officer Blank, Labroi said the rifle belonged to Porter, who had retrieved it from her car after hearing someone outside their hotel room.
The State charged Labroi with domestic battery, in violation of K .S.A. 21–3412a (a), and criminal possession of a firearm, in violation of K.S.A.2010 Supp. 21–4204. At the trial in late September 2010, Porter testified she started the physical confrontation with Labroi at the hotel and that the rifle was hers—not his. That represented a material change (to say the least) from what she told Officers Blank and Hook about the rifle and the fight. Porter testified that she had lied to the officers because she was drunk that morning and was fearful she would be taken to jail. Porter told the jury that although the rifle was hers, she had never fired it. Porter testified that she and Labroi were no longer a couple, but she had given birth to their son about 2 weeks before the trial. Officers Hook and Blank testified to their investigation of the disturbance call and what Porter and Labroi had told them at that time. Labroi testified in his own defense and explained to the jury he and Porter were arguing about text messages she had received from a former boyfriend when she began hitting him. Labroi said he physically defended himself to ward off the blows. Labroi also told the jury he had no idea the rifle was in the hotel room, a version that differed from what he had said at the hotel, according to the police.
During deliberations, the jury presented a multipart, written question to the district court, asking: “How did dispatch become aware that the gun was in the hotel room? Who called in that information? How did the female officer become aware that the gun was in the room? From dispatch? From the male officer? What was the response time from the dispatch call to the officers ['] arrival on the scene?” The trial record fails to affirmatively show that Labroi was personally present when the message was received or when it was answered. While the jury continued its deliberations, the district court summarized on the record how the parties handled the inquiry. In that summary, the district court explained that in conferring with counsel, everyone “[a]greed that we could not answer the questions[.]” The district court then restated the written response that had been provided to the jury: “I am sorry but I cannot answer questions. You will have to rely upon your collective memory of the evidence presented at trial.” Neither counsel augmented or otherwise commented on the district court's recitation of the circumstances regarding that message from the jury. Although the record shows that Labroi was present when the district court summarized the handling of the jury inquiry, nobody discussed whether Labroi had been present when the response was formulated or provided to the jury.
The jury submitted a second question stating it had reached a verdict on the domestic battery charge but remained split on the firearm charge. The jurors wanted to know what would happen if they could not come to a decision. The question did not reveal the verdict that had been reached and suggested “jurors on both sides” of the firearm charge “feel they cannot change their minds.” The district court brought the jury into the courtroom with counsel and Labroi present. The district court spoke with the presiding juror and determined the jury was not hopelessly deadlocked. Based on that assessment, the district judge told the jury: “I'd like to see you try to reach a verdict as to Count I, if possible, so I'm going to give you some more time to do that. I'm thinking roughly a half hour.” The jury continued deliberating that afternoon and announced it reached verdicts on both charges. The jury acquitted Labroi of domestic battery and convicted him of criminal possession of a firearm.
The district court imposed a 9–month sentence on Labroi. He has timely appealed. The appeal focuses solely on the handling of the first inquiry from the jury.
Labroi alleges two principal flaws in the way the district court responded to the first inquiry: The response failed to appropriately address the questions; and he apparently was absent when the message came in from the jury, when counsel and the judge formulated a response, and when that response was communicated to the jury. The trial record fails to show that Labroi was present as counsel and the district court dealt with the jury request. The record, however, doesn't affirmatively establish Labroi's absence either. Neither the district court nor counsel orally noted whether Labroi was there or not, so the transcript is, as we say, silent. In that circumstance, the appellate courts must presume the defendant was not personally present. See State v. Adams, 292 Kan. 151, 163, 254 P.3d 515 (2011).
Communication to, from, or in the presence of the jury amounts to a critical stage in a criminal prosecution. State v. Davis, 284 Kan. 728, Syl. ¶ 2, 162 P.3d 1224 (2007); State v. Mann, 274 Kan. 670, 682, 56 P.3d 212 (2002). Accordingly, a defendant must be present in person and through counsel for that communication consistent with constitutional rights to due process and trial by jury trial as secured in the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. A defendant has a corresponding statutory right to be present under K.S.A. 22–3405(1) and K.S.A. 22–3420(3). See Davis, 284 Kan., Syl. ¶ 2; Mann, 274 Kan. at 680–82.
Here, we must presume constitutional and statutory error because the record fails to show Labroi was present for the handling of the first inquiry from the jury. The error, though of constitutional magnitude, may be excused if it is harmless. Davis, 284 Kan. at 732;Mann, 274 Kan. at 682–83. So we move to the question of harmlessness. Part of that examination necessarily encompasses the other point Labroi raises on appeal—whether the answer to the question was substantively correct. If it were correct, that tilts toward finding Labroi's absence to have been harmless, since his presence would not have made an already sufficient response more so. Conversely, if he had been there, he theoretically might have been able to assist in heading off an erroneous answer.
With its inquiry, the jury effectively asked the district court to resolve several factual issues. That is, the jury wanted the district court to sift through the evidence and to declare what the evidence showed about certain events and the relationship between events. The jury effectively sought to shift its function and duty to the district court. See State v. Stieben, 292 Kan. 533, Syl. ¶ 4, 256 P.3d 796 (2011) (“It is the role of the jury to determine the facts[.]”); State v. Linn, 251 Kan. 797, 802, 840 P.2d 1133 (1992) (“It is for the jury to decide the facts from the evidence submitted [.]”). A district court cannot oblige that sort of request. Stieben, 292 Kan. at 536–37.
In Stieben, the jury asked when the defendant crossed the fog line prompting a law enforcement officer to stop her and then to arrest her for driving under influence. The district court formulated and provided a substantive response to the question indicating when the event occurred. The Kansas Supreme Court found that to be an error of constitutional dimension because it invaded the fact-finding function of the jury compromising Stieben's right to a jury trial. 292 Kan. at 536. The district court properly “could have directed the jury instead to rely on its collective memory” of the evidence. 292 Kan. at 537. In Stieben, everyone agreed the arresting officer was the only witness to address the issue, so the district court also could have offered a readback of that testimony, although that's not specifically what the jury requested. See 292 Kan. at 537.
Here, the district court responded precisely as the Stieben court counseled by telling the jurors to rely on their collective memories. The response to the question was legally appropriate and entirely correct. Labroi, however, argues the district court functionally ignored the jury's inquiry by not providing or at least offering a readback of testimony. We disagree. The district court neither declined to respond to the jury's request nor offered a useless response—that would have been error. See State v. Jones, 41 Kan.App.2d 714, 722–23, 205 P.3d 779 (2009) (trial court may not “ignore” question from jury and must endeavor to provide “a meaningful response”), rev. denied 290 Kan. 1099 (2010). To the contrary, the district court chose a tack the Kansas Supreme Court has specifically endorsed in that circumstance.
Moreover, unlike Stieben, offering a readback of testimony would have been risky in this case. There, given the nature of the case, the arresting officer provided the only testimony that would have been even arguably responsive to the jury's question. A readback, then, presented a viable option. Here, however, both officers might have given relevant testimony related to the multiple factual questions the jury posed. And Porter testified that she told one of her children staying with her at the hotel to call 911. Neither child testified. The district court would have ventured down a perilous road in offering to have portions of the testimony from specific witnesses read back. Some relevant testimony might be overlooked in crafting that sort of response; a defendant could then cite the omission as error.
The district court could have told the jurors that if they identified specific portions of the trial testimony, that evidence could be read to them. But that answer really would have been less responsive to the jury's inquiry than what the district court actually provided. The jury didn't so much express confusion about or want clarification of particular testimony or evidence—something a readback might have helped—as it wanted to outsource its fact-finding duty to the district court. The district court's response correctly pitched the duty back to the jury and provided sound advice on carrying out that task by suggesting the jurors make a concerted effort to recall and marshal the relevant evidence.
In short, the district court provided a legally unassailable response to the jury inquiry. Labroi can premise no error on the substance of the response itself, and we reject his argument to that extent. Having found the response proper, we return to the broader constitutional issue of whether Labroi's apparent absence from the process in receiving the jury question and then formulating and delivering that response amounted to harmless error.
On appeal, the State cites the four-factor test from State v. McGinness, 266 Kan. 121, Syl. ¶ 4, 967 P.2d 763 (1998), as informing the examination of harmlessness of a court's improper communication with a sitting jury. Those factors entail: (1) the overall strength of the State's case; (2) whether an objection had been made; (3) whether the communication concerned a critical aspect of the trial or involved an innocuous and insignificant matter and the manner of the communication; and (4) the effectiveness of any posttrial remedy in mitigating the constitutional error. 266 Kan. 121, Syl. ¶ 4.
In ruling on the ultimate issue of harmlessness, an appellate court may find a constitutional error harmless if “there is no reasonable possibility the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). Here, the burden falls on the State to show beyond a reasonable doubt the absence of that possibility. 292 Kan. 541, Syl. ¶ 6.
The factors in McGinness were specifically tailored to address a district court's ex parte communication with one or more jurors. McGinness, 266 Kan. 121, Syl. ¶ 4. That is not really the situation here. The district court never communicated with the jury outside the presence of counsel for both sides, so Labroi's lawyer participated in the entire process related to the jury's inquiry. The presence of counsel alone does not erase all constitutional error, but the error is of a different order when a district court communicates with members of a deliberating jury wholly without oversight or input from the prosecutor, defense counsel, or the defendant personally. Nonetheless, at the State's invitation, we apply the McGinness factors in looking at the overall circumstances. At the very least, those factors highlight specific considerations drawn from the entire record, which we would review in any event, and arguably give Labroi greater consideration than he would otherwise be due. They certainly do not dilute or diminish what would be the appropriate review.
Again, the ultimate issue we must determine is whether the district court and counsels' handling of the jury question without Labroi being present contributed to the verdict against him on the firearms charge. We have no reason to conclude the district court would have responded any differently to the question had Labroi been present. Perhaps, he might have insisted his lawyer press for some different response, and his lawyer might even have indulged that request, although not obligated to do so. See United States v. Chapman, 593 F.3d 365, 369 (4th Cir.2010) (discussing role of criminal defense counsel in making tactical trial decision independent of client's questionable suggestions). On appeal, Labroi argues that he might have told his lawyer to ask that the district court offer a readback of testimony. But we cannot conclude on speculation alone that the district court would have abandoned its correct response in favor of one that would have been less responsive to the jury and potentially erroneous. Nothing in the record suggests the district court waivered about what to do or gave some inclination it might have responded differently. In light of those observations, we turn to the McGinness factors.
The State's case was less than impregnable in that no independent witnesses put the rifle in Labroi's hands nor did any forensic evidence, such as fingerprints. The case was built on statements Porter and Labroi made to the police officers at the scene. At that time, Porter unequivocally told the officers the rifle belonged to Labroi. At trial, Porter recanted, saying she had lied to the officers (not that they had misunderstood her). The jury was left with a classic credibility issue: Was Porter lying then or was she lying now? Juries are uniquely qualified to make those calls. And there were tangible reasons to discredit her testimony. In the larger scheme of things, Porter may have been reluctant to send the father of her newborn to prison, so she recanted. More narrowly, jurors reasonably might have been unwilling to square her purported ownership of the rifle with her testimony she had never fired it.
Labroi's about-face in court was not nearly so stark. At the scene, he told Officer Blank that Porter had gotten the rifle from her car. He, thus, conceded knowledge of the rifle and its whereabouts that morning while disavowing possession or ownership of it. But at trial, Labroi testified that he was unaware of the rifle being in the hotel room, a position substantially inconsistent with what he apparently said to Officer Blank. Confronted with that sort of shifting narrative not plausibly attributable to a failed recollection of insignificant details, the jurors reasonably could have found Labroi less. than honest and less than accurate in his account from the witness stand. In turn, they fairly might have discounted his denials in favor of the version Porter gave the police at the scene. Again, that is uniquely within a jury's province. So there was more than sufficient evidence to find Labroi guilty, especially if the jury found him to be mendacious. Whether Labroi was present for the handling of the jury's question would have made no difference in those determinations. And, as we have said, we have no basis to find his presence would have altered the district court's response to the question.
Labroi's trial lawyer made no objection either to the response to the jury's inquiry or to Labroi's apparent absence. The response to the inquiry was not objectionable. So even if the lawyer had lodged an objection to the response to satisfy his client, it would have been overruled. We suppose had defense counsel objected to proceeding in Labroi's absence, the district court would have secured Labroi's presence before addressing the jury's inquiry. (Our supposition, of course, rests on the presumption we must draw from the silent record that Labroi was not in the courtroom. He actually may have been there, and the district court simply failed to note his presence on the record. That would account for the lack of an objection from his lawyer.) But Labroi's presence would not have caused the district court to abandon its demonstrably correct response to the jury.
The third factor looks at the communication itself. The district court's response imparted no evidentiary facts or conclusions drawn from those facts to the jury. The response, therefore, did not compromise the jury's role as the finder of facts. And the communication itself, therefore, had no deleterious impact on Labroi's right to a fair trial. We would be engaging in wholesale speculation to impute some particular level of significance to the circumstances the jury inquired about. A single juror might have thought the information of at least some consequence to his or her position. Maybe it was of interest to more than one juror. There is no way of knowing. Just as there is no way of knowing which way the curious juror or jurors were leaning or whether the response even affected their views. At bottom, however, the content of the communication was legally proper. See Stieben, 292 Kan. at 536 (district court erred both in synthesizing evidence to provide a substantive factual response to jury's question and in providing a response that misstated the evidence).
The district court provided the response on the record, in open court, and with counsel for both sides present. Accordingly, Labroi's interests were protected through his lawyer. The district court did not communicate with the jury outside the customary manner, thereby avoiding contemporaneous scrutiny or challenge and, thus, any check on improper comment. Apart from Labroi's absence—a serious omission, to be sure—the manner of the communication comported with the usual procedures for interaction between a district court and a jury.
Here, there is no dispute about what was communicated to the jury. The district court's written response to the jury is part of the record. When a district court communicates on an ex parte basis with jurors, the exchange often takes place informally and without a court reporter or other means of assuring an accurate record of what may have been said. See, e.g., McGinniss, 266 Kan. at 124–25 (district court judge speaks casually with jury injury room during deliberations and explains absence of police chief as witness in case). That informality injects additional uncertainty about the potential impact of otherwise improper communication between the district court and the jury and pushes the circumstances closer to prejudicial error. Here, the content of the communication was unequivocally established.
The final factor looks to the effectiveness of any posttrial remedy for the error. The error lay in Labroi's absence. No posttrial remedy could undo or correct for that mistake. Labroi had a right to be present, and he wasn't. But not every trial error, even a constitutional one, requires a direct remedy. As the appellate courts observe, a defendant must receive a fair hearing, not an impeccable one. Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (“As we have stressed on more than one occasion, the Constitution entitles a criminal defendant to a fair trial, not a perfect one.”); State v. Lumley, 266 Kan. 939, 962, 976 P.2d 486 (1999) (A “ ‘defendant is entitled to a fair trial but not a perfect one.’ ”) (quoting State v. Bradford, 219 Kan. 336, 338, 548 P.2d 812 [1976] ).
Taking account of the entire record and the McGinness factors, the State has shown beyond a reasonable doubt that Labroi's presumed absence from the handling of the jury's inquiry was harmless error. If he had been present, the district court would have responded to the inquiry just as it did. We are similarly convinced there was no possibility his absence contributed to the guilty verdict or stated conversely that his presence would have resulted in an acquittal. The district court provided a legally correct response to the jury's inquiry. Indeed, it was the best response, given the circumstances, and may well have been the only proper one. The district court should have insured Labroi was present or his presence duly noted on the record. Labroi's presumed absence was constitutional error, but it was undoubtedly harmless. Labroi received a fair trial.
Affirmed.