Opinion
111,832.
08-14-2015
STATE of Kansas, Appellee, v. Qwenci D. LACY, Appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., McAnany, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Qwenci D. Lacy appeals his felony conviction of possession of cocaine and his misdemeanor conviction of criminal use of a weapon. He claims (1) the prosecutor committed prosecutorial misconduct when the prosecutor violated the court's order in limine by arguing that Lacy's use of a false name was evidence of his guilt; and (2) the prohibition against brass knuckles in K.S.A.2010 Supp. 21–4201(a)(1) violates the Second Amendment to the United States Constitution and § 4 of the Kansas Constitution Bill of Rights.
An officer stopped a car for a traffic infraction. The officer called for backup. As the officer approached, it appeared that the occupants of the car were moving items in the back seat. Lacy was in the back seat. When backup arrived, the second officer saw that the back seat passengers were not wearing seatbelts. He asked Lacy to identify himself. Lacy said his name was Marcus L. King and his birth date was September 20, 1991, apparently to avoid detection because there were several outstanding warrants for his arrest. Lacy said he was 18 years old and that he did not know his Social Security number.
There was no record of a Marcus L. King, and Lacy's stated age did not correspond to his stated birth date. Lacy was taken out of the vehicle and detained. As Lacy got out, one of the officers noticed brass knuckles at Lacy's feet. The officer again asked for Lacy's name and date of birth. This time, Lacy told him that his name was Tyrone Anderson.
Lacy's wallet was found underneath the driver's seat. On top of the wallet was a handgun. Inside the wallet was a Social Security card and an identification card that belonged to Lacy. The wallet also contained a small plastic baggie containing crack cocaine. Lacy admitted the cocaine was his but denied that either the brass knuckles or the handgun was his.
Lacy was charged with possession of cocaine, criminal possession of a firearm, and criminal use of a weapon (the brass knuckles). He was convicted of possession of cocaine and criminal use of a weapon, but the jury acquitted him of the firearm charge. Lacy appeals his convictions.
Lacy claims the prosecutor violated an order in limine by referring in closing argument to Lacy having given a false name to the officer and associated it with his guilt.
In considering this claim we must first determine whether a violation of the order occurred. If so, we consider whether the prosecutor's argument prejudiced the jury against Lacy and denied him a fair trial. See State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
The district court entered a pretrial order in limine excluding any evidence or comment about Lacy having given a second false name, finding that it was irrelevant and provided no evidence of Lacy's guilt or innocence. But the district court specifically allowed the State to introduce evidence of the first false name that Lacy gave in order to explain why Lacy was removed from the car and detained. The district court stated that a limiting instruction would be provided, up on request, informing the jury that the evidence could only be used for that purpose. No limiting instruction regarding the false name was requested or given at trial.
During the trial there was no mention of Lacy having given the false name Tyrone Anderson. During closing argument, the prosecutor reminded the jury about the officers' training and experience and their observations at the time of the traffic stop. The prosecutor continued:
“Now, we also heard how the defendant was not cooperative. Okay? He testified with his attorney that he was, but we heard otherwise from the officers and eventually he agreed. He didn't give his proper name. He gave a fake name. Why? Was it because he didn't want to take responsibility? Why not give his real name? Remember, the officer's told you—why is that so important?—we need to know who we're dealing with, who to give the citation to. There's all of this furtive movement, there's all of these questions going on, we need to be able to see who is in ... the car.”
The prosecutor then explained the elements the State had to prove to support convictions and made no reference to Lacy's use of a false name in the course of that explanation. The prosecutor did not suggest to the jury that Lacy was guilty due to the fact that he gave a false name to the officers. It is clear that the prosecutor was merely recounting how the officer came to have Lacy step out of the car, which was entirely consistent with the district court's order in limine.
The prosecutor's rhetorical question in closing about the use of a false name—“Why? Was it because he didn't want to take responsibility?”—did not violate the order in limine. The district court prohibited evidence and argument regarding Lacy' use of the name Tyrone Anderson. The prosecutor made no reference in closing argument to Lacy's use of the name Tyrone Anderson. The prosecutor explained that Lacy's initial use of the false name Marcus L. King provided the basis for extending the traffic stop, not that it proved Lacy was guilty of these crimes. Further, in its instructions the court made it clear to the jury that the statements made in closing arguments were not evidence and the jurors should confine their consideration to the evidence admitted during the trial.
Besides, these comments by the prosecutor in closing argument clearly had no impact on the ultimate outcome of the case in view of Lacy's admissions about his ownership of the cocaine and the brass knuckles being found directly at his feet.
Constitutionality of K.S.A.2010 Supp. 21–4201
Lacy was convicted of carrying brass knuckles in violation of K.S .A.2010 Supp. 21–4201(a)(1), which provided: “(a) Criminal use of a weapon is knowingly: (1) Selling, manufacturing, purchasing, possessing or carrying any bludgeon, sandclub, metal knuckles or throwing star, or any knife....” Lacy contends that because the Second Amendment to the United States Constitution and § 4 of the Kansas Constitution Bill of Rights protect the right to keep and bear arms, the prohibition against the possession of brass knuckles in K.S.A.2010 Supp. 21–4201(a)(1) is unconstitutional.
Lacy did not raise this issue before the district court. But he claims we should consider the issue because the issue involves a question of law based on proven facts and consideration of the issue is necessary to serve the ends of justice and to prevent the denial of Lacy's fundamental right to bear arms.
Generally, an issue not raised before the district court cannot be raised on appeal. This is true even when the issue raises constitutional grounds for reversal. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). But when a newly asserted theory involves only a question of law arising from proved or admitted facts and its consideration would be finally determinati ve of the case, we may consider it. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014).
The Second Amendment to the United States Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The Second Amendment is applicable to the states through the Fourteenth Amendment to the United States Constitution. See McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ; State v. Knight, 44 Kan.App.2d 666, 682–86, 241 P.3d 120 (2010), rev. denied 292 Kan. 967 (2011). Section 4 of the Kansas Constitution Bill of Rights states: “The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.”
While Lacy contends this constitutional issue is based on proven facts, he fails to explain what those facts are. Lacy relies on the United States Supreme Court's holding in District of Columbia v. Heller, 554 U.S. 570, 592, 28 S.Ct. 2783, 171 L.Ed. 637 (2008), to support his position that the Second Amendment extends the right bear arms to him carrying brass knuckles. But he acknowledged in his appellate brief that the Heller Court determined that “the right secured by the Second Amendment is not unlimited.” 554 U.S. at 626. The Heller Court also noted that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” 554 U.S. at 626. It is unclear whether Lacy has standing to challenge the constitutionality of K.S.A.2010 Supp. 21–4201(a)(1). Standing is a matter that first must be addressed by the district court. Here, standing is a factual-based inquiry that is relevant to the right to bear arms. See Ezell v. City of Chicago, 651 F.3d 684 (7th Cir.2011).
Lacy notes in his appellate brief that the Heller Court recognized Second Amendment protection for “the sorts of weapons ... ‘in common use at the time.’ “ 554 U.S. at 627 (quoting United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 83 L.Ed. 1206 [1939] ). Whether brass knuckles fall within this category is an issue of fact to be addressed by the district court. Lacy attempts to sidestep this requirement by citing to us a “Report of Benedict Crowell” and a Google search on the subject. But this evidence has never been presented to the district court and is not part of the record on appeal. Thus, it is not available to support Lacy's claim. See Supreme Court Rule 6.02(b) (2014 Kan. Ct. R. Annot. 40).
Not only when the weapon came into use but also the type of weapon involved is critical to a constitutional analysis. See United States v. Marzzarella, 614 F.3d 85, 90 (3d Cir.2010) (referring to Miller, 307 U.S. 174 [discussing regulation against sawed-off shotgun and its relation to the Second Amendment] and stating that the right to keep and bear arms does not extend to all types of weapons, but only to those typically possessed by law-abiding citizens for lawful purposes [citing Heller, 554 U.S. at 625 ] ). Here, K.S.A.2010 Supp. 21–4201(a)(l) applies to “any bludgeon, sandclub, metal knuckles or throwing star, or any knife....” Whether Lacy's brass knuckles are afforded Second Amendment protection is a factual issue that needs to be determined by a district court before the issue may be adequately addressed on appeal.
The legal analysis of Lacy's constitutional claim depends on facts that have not been developed below. We will not consider an issue when the district court has not had the opportunity to develop the facts necessary for our analysis and has not had the opportunity to rule on the claim. See State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). Because the district court has not determined the relevant facts necessary for us to properly consider the issue on appeal, the exception to the rule on reviewability—that the issue turns on undisputed facts—does not apply. Accordingly, this claim is dismissed.
Affirmed in part and dismissed in part.