Opinion
No. 108,318.
2013-07-12
STATE of Kansas, Appellee, v. Jose Lizandro LIZAMA–LAZO, Appellant.
Appeal from Ford District Court; Daniel L. Love, Judge. Daniel J. Arkell, of Law Office of Daniel J. Arkell, P.A., of Dodge City, for appellant. David Belling, assistant county attorney, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; Daniel L. Love, Judge.
Daniel J. Arkell, of Law Office of Daniel J. Arkell, P.A., of Dodge City, for appellant. David Belling, assistant county attorney, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jose Lizandro Lizama–Lazo appeals his conviction by a jury of possession of cocaine, possession of cocaine without tax stamps, and several traffic offenses. He first alleges that during the jury selection process the district court improperly advised potential jurors that they would be “actually serving as the conscience of the community.” He further alleges that the district court abused its discretion by not admonishing the potential jurors to disregard an attempt by the prosecutor during voir dire to explain that the legal concept of “possession ... simply means having control over something.” Finally, he argues that the district court erred by improperly admitting the cocaine into evidence.
We find no error and affirm Lazo's convictions.
Factual Background
Lazo was charged with possession of cocaine in violation of K.S.A. 21–5706(a), possession of cocaine without Kansas tax stamps affixed in violation of K.S.A. 79–5208, driving while suspended in violation of K.S.A.2010 Supp. 8–262, failing to stop at a stop sign in violation of K.S.A. 8–1528, failing to properly fasten a seatbelt in violation of K.S.A. 8–2503, and failure to signal in violation of K.S.A. 8–1548.
During the jury selection process at trial, the district court judge read the following prepared remarks regarding jury service:
“Our jury system rests upon the belief that several persons of different and varying backgrounds and experiences will be more able to arrive at a just decision than a single person whose experiences are necessarily more limited.
“Accordingly, the names from which a jury panel is selected are picked at random from driver's license registration records of this county. When a jury panel is ordered, the names are, again, drawn at lot from this source. The reason for the random selection is to obtain as nearly as possible a cross section of the community.
“And, serving as a juror, you are actually serving as the conscience of the community.”
Lazo did not contemporaneously object to this statement.
During voir dire, the prosecutor attempted to explain the legal concept of “possession” to the potential jurors:
“Now, briefly, I want to talk about a legal concept called possession. Possession simply means having control over something. So, under the eyes of the law, possession is different than ownership. You can possess something without actually owning it.
“Let me give you an example. Let's say I'm changing a flat tire. And, I don't want to get my watch dirty, so I take it off and I hand it to my friend, okay. When I give it to her, she has now come into possession of my watch. She does not own it. She has to give it back to me when I ask for it. But, as long as she has control over it, she is said to be in possession. Please raise your hand if you understand that possession, under the eyes of the law, simply means having control over something. Okay, all hands.”
Lazo's counsel then objected to the prosecutor's statement:
“[Lazo's counsel]: Your honor, I'm going to object. He's instructing the jury in voir dire. I don't think that's the way the instruction reads at all with regard to control.
“The Court: The instruction talks about knowingly. And, I think we'll discuss that later.
“[Lazo's counsel]: Right. So it has to be knowingly rather than just possessing.
“The Court: You can bring that up.
“[Lazo's counsel]: Would you ask the jury to disregard?
“The Court: No, I'm not going to. I'm going to overrule. But, I'm going to let you have the opportunity to follow up later.”
The prosecutor then continued his voir dire. After both parties asked the jury questions, the jury was excused and Lazo's counsel moved for a mistrial based on the prosecutor's statements. The district court judge denied the motion, stating that he would be giving a standard PIK instruction on the cocaine charge and therefore the “intentional” element would be explained to the jurors. The judge added that the jurors would also be told that what the attorneys say is not the law, but rather an argument. Later, during his closing argument, the prosecutor explained to the jury that the possession must be intentional.
During trial, the State called Jessica Kaiser as a witness. Kaiser worked for the Kansas Bureau of Investigation (KBI) as a forensic scientist and was involved in analyzing evidence used to prosecute Lazo. The prosecutor asked Kaiser about State's Exhibit Number 1, which Kaiser's analysis determined was two bags of cocaine. Kaiser testified that she derived the bags' contents by performing a weight determination, a color test, and a gas-chromatograph-mass-spectrometer test. When presented with the bags at trial, Kaiser recognized them as evidence because they were marked with a KBI lab item number and her initials were on the affixed KBI evidence tape. In the report that Kaiser prepared regarding the evidence, the combined weight of the contents of the two bags was listed as 1.66 grams—Kaiser testified that this weight was the white powder only and did not include the bags themselves. In Kaiser's estimation, a standard sized sandwich bag would weigh approximately 1 gram by itself.
When the State moved to admit the substance in the bag into evidence, counsel for Lazo elected to voir dire the witness. Upon questioning, Kaiser estimated that .05 to .1 grams of the substance were used in testing it, but she was not certain because she does not weigh the evidence after she is done testing it. The arresting officer's notes reflect that he sent 2.8 grams of evidence to Kaiser to be tested—this weight included the bag. Counsel then objected to the inclusion of the white powder into evidence on account of a 1 .24 gram difference between what the officer sent to Kaiser and what Kaiser weighed herself. The court admitted the evidence, stating that Kaiser had identified her markings, her case number, and other identifying features of the exhibit.
The prosecutor then proceeded to examine Kaiser further. Kaiser explained the chain of custody laboratory request form that is created by the KBI when evidence is submitted. The document said that the bags containing white powder were submitted by the Ford County Sheriff's Office and further detailed the chain of custody from that point forward: once the evidence reaches the KBI, it is bar-coded, and when it is transferred within the KBI, it is done by scanning the bar code. The form also contained the department case number, 2011FO0365—the same number that was labeled on the bags in evidence. When the evidence is not being examined, it is locked away in one of a few limited-access lockers. On cross-examination, Kaiser clarified that the evidence was contained inside two knotted plastic bag corners that were together inside a ziplock bag.
On January 31, 2012, Lazo was found guilty of all the charges against him. He brings this appeal.
Analysis
The Judge's Statement to the Jury Panel
Lazo first argues that the district court judge committed misconduct when he told the jury that they it serve as the “conscience of the community,” thereby substantially prejudicing the defendant and making it impossible for him to receive a fair trial.
The applicable standards of review are summarized in State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251 (2010). An appellate court has unlimited review of the particular facts and circumstances of each case to determine whether judicial comments, other than jury instructions, rise to the level of judicial misconduct. The complaining party has the burden to establish that misconduct occurred and that the misconduct prejudiced the party's substantial rights. If a proper and reasonable interpretation will render the judges remark unobjectionable, the remark cannot be found to be prejudicial. Kemble, 291 Kan. at 113 (citing State v. Brown, 280 Kan. 65, 70, 118 P.3d 1273 [2005] and State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 [2002] ). The mere possibility of prejudice from a judge's remark is not sufficient to overturn a verdict or judgment. Miller, 274 Kan. at 118.
Further, an allegation of judicial misconduct is reviewable on appeal despite the lack of a contemporaneous objection when the defendant claims that his or her right to a fair trial was violated. Kemble, 291 Kan. at 113;State v. Tyler, 286 Kan. 1087, 1090, 191 P.3d 306 (2008); Brown, 280 Kan. at 70. Thus, despite the State's argument to the contrary, we are not precluded from considering this issue.
Lazo cites several cases in which phraseology similar to that used by the judge herein has been determined to be improper, but taken in context, these cases are clearly distinguishable and fail to support his argument. In State v. Finley, 273 Kan. 237, 245, 42 P.3d 723 (2002), the Kansas Supreme Court found that the statement “we don't want people making meth in our communities” was improper, but even in the context of other allegedly improper remarks it was not held to be reversible error. In State v. Green, 254 Kan. 669, 684–85, 867 P.2d 366 (1994), the Kansas Supreme Court found that the statement” [w]hat you decide will be what our community stands for” was improper and should not have been made, but did not constitute reversible error.
The case of City of Dodge City v. Ingram, 33 Kan.App.2d 829, 837–40, 109 P.3d 1272 (2005), is more instructive. While the defendant herein would isolate the phrase “conscience of the community” as having been condemned by the Ingram court, there is much more to the story. In that case, the prosecutor had just argued that the defense counsel “thinks you're stupid,” and then suggested: “You are the fact-finders. You are the conscience of the community. You have to determine whether or not a person, such as Mr. Ingram, should be out driving, or whether he should be under arrest and in the Intoxolizer room ... where he belongs.” 33 Kan.App.2d at 837. He then proceeded to argue that if the jury did not find the defendant guilty, this would prevent the arresting officer from stopping future drivers who are driving erratically. 33 Kan.App.2d at 840. In reversing Ingram's conviction, this court did not isolate the phrase “conscience of the community” but, rather, focused on the entire context of the remarks which were held to be inflammatory and prejudicial, improper expression as to the defendant's guilt, and improper appeals to the juror's interests as members of the community. 33 Kan.App.2d at 838–39.
The court in Ingram referred to State v. Jordan, 250 Kan. 180, 825 P.2d 157 (1992), wherein a prosecutor in closing argument declared, “[T]hat young man is a murderer,” and then told the jury: “And if you want to live in a community where a person can kill another person ... in the manner that this was conducted and excuse it because he had a few drinks, that's up to you.” 250 Kan. at 193. This statement obviously goes beyond an isolated reference to the “conscience of the community” and is indicative of the type of inflammatory argument which our Supreme Court has held “improper, both in expressing personal belief and in appealing to a juror's personal interest as a member of a community.” 250 Kan. at 193.
All of these cases are clearly distinguishable from the isolated remark made by the district judge here in his introductory explanation of the jury selection process. All of the cases refer to comments made by prosecutors; Lazo cites no case involving a similar remark by a trial judge. All of the cases refer to statements made in closing arguments in the course of overzealous advocacy by the State; none refer to statements made during voir dire. All of the offending comments were discussed in the context of other allegations of prosecutorial impropriety; none referred simply to “the conscience of the community” in isolation. And all of the cases discuss language clearly intended to inflame passion and prejudice, including improper opinions as to guilt, and/or to appeal to the jurors' personal interests as members of the community.
The prosecutor is the voice of the State, and the jury is aware of the prosecutor's bias. Jurors would therefore tend to construe the prosecutor's statements in a way that prejudices the defendant. All of the cases cited dealt with prosecutor's statements made during closing arguments, a period in which every word the prosecutor speaks is calculated to tie together the defendant's guilt. In every case, the offending statements were led and/or followed by words encouraging conviction. Here, the judge made the statement “conscience of the community” before the case had even begun with voir dire. Immediately preceding the statement was a description of how the selection process works—that jurors are randomly selected to obtain as closely as possible a cross-section of the community. The judge explained that the intended product of the process would be that the jurors selected would represent the conscience of the community. The judge was not seeking to inflame the passions of the jury against the defendant or to comment on his guilt or innocence. The statement was clearly meant only to pique the interest of the voir dire panel in simply being jurors.
Thus, we find that the judge's use of the phrase “conscience of the community” in this context did not constitute misconduct and cannot be held to be prejudicial. The Prosecutor's Statements Regarding “Possession”
Lazo next argues that the district judge committed an abuse of discretion by not immediately instructing the jury pool regarding the impropriety of the prosecutor's statements made during the voir dire about the legal concept of “possession.” As a subsidiary argument, Lazo also suggests that the district court further erred by denying his motion for mistrial.
The purpose of voir dire is to enable the parties to select jurors who are competent and without bias, prejudice, or partiality. As a general rule, the nature and scope of the voir dire examination is left to the sound discretion of the trial court. However, in deciding whether the trial court has taken sufficient measures to assure that the case is tried by an impartial jury free from outside influences, appellate courts have the duty to make an independent evaluation of the circumstances. State v. Reyna, 290 Kan. 666, 686, 234 P.3d 761,cert. denied131 S.Ct. 532 (2010). “ ‘Treatment of legal points in the course of voir dire examination should be strictly confined to those inquiries bearing on possible bias in relation to the issues of the case.’ “ State v. Simmons, 292 Kan. 406, 412, 254 P.3d 97 (2011) (quoting ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3–5.3[c] [3d ed.1993] ).
A trial court may declare a mistrial at any time due to prejudicial conduct which makes it impossible to proceed without injustice to the defendant or prosecution. The decision of whether to declare a mistrial will not be disturbed absent a showing of abuse of discretion. State v. Wimbley, 271 Kan. 843, 851–52, 26 P.3d 657 (2001).
A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). An abuse of discretion occurs if discretion is guided by an erroneous legal conclusion or goes outside the framework of or fails to consider proper statutory limitations or legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
It is important to note that Lazo does not frame the issue on appeal as one involving prosecutorial misconduct but rather as an abuse of judicial discretion in failing to protect the defendant's right to a fair trial. See K.S.A. 60–261. “The trial court is required to prevent prosecutorial misconduct from occurring regardless of whether a timely objection has been lodged by the defendant.” State v. Holmes, 272 Kan. 491, 498, 33 P.3d 856 (2001).
Lazo alleges that the prosecutor misstated the legal concept of “possession” by telling the voir dire panel that it “simply means having control over something” while not mentioning that it also requires that the person do so “knowingly.” Defense counsel raised an objection to the statement. The district judge declined to instruct the jury at that point, but assured defense counsel by stating, “I'm going to let you have the opportunity to follow up later.” Defense counsel did not thereafter ask the potential jurors any questions about the definition of possession and made no further statement on the issue during voir dire.
Lazo argues that “[t]he judge's discretion was arbitrary and unreasonable when failing to at least ask the jury to disregard the incomplete definition of possession, or attempt to clarify what the legal definition of possession was before the trial commenced.” Lazo cites no authority to support this argument. Nonetheless, in the interest of protecting the defendant's right to a fair trial, we will further consider and analyze the proceedings.
The prosecutor's statement and explanation to the voir dire panel clearly misstated the legal definition of “possession” by omitting the elements of “knowledge” and “intent.” This could be construed as prosecutorial misconduct. However, while the prosecutor misstated the law during voir dire, he correctly stated the law during his closing argument. Thus, the earlier misstatement was not gross and flagrant misconduct, nor was it evidence of ill will. See State v. Raskie, 293 Kan. 906, 918, 269 P.3d 1268 (2012); State v. Naputi, 293 Kan. 55, 62, 260 P.3d 86 (2011).
Reviewing the entire record, it is evident beyond a reasonable doubt that the prosecutor's statement on voir dire did not affect the outcome of the trial. After the prosecutor's misstatement and Lazo's subsequent objection, the trial judge immediately corrected the law saying, “The instruction talks about knowingly. And, I think we'll discuss that later.” Defense counsel responded, “Right. So it has to be knowingly rather than just possessing.” It appears from the record that this colloquy occurred within hearing of the prospective jurors, making them immediately aware that “knowingly” was an element of possession and that they would be further instructed later in the proceedings.
At the conclusion of the evidence, the district court instructed the jury pursuant to PIK Crim.3d 67.34: “Possession means having joint or exclusive control over an item with knowledge of and intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right to control.” The prosecutor reviewed the instructions with the jury during his closing argument, explicitly articulating that the State must prove that Lazo knowingly and intentionally possessed cocaine.
Under the circumstances, the judge's actions in not formally advising the jury to disregard the prosecutor's misstatement and in denying the motion for mistrial were not arbitrary, fanciful, or unreasonable, nor were they based on an error of law or fact. There was no abuse of discretion. The Admission of the Cocaine
Lazo last argues that the evidence of cocaine was erroneously admitted because of an inadequate chain of custody. Lazo claims that the weight of the cocaine tested was substantially different from the weight of the cocaine sent to the laboratory.
The arresting officer's notes reflect that he sent 2.8 grams of evidence to the KBI to be tested, but Kaiser's report listed the evidence at 1.66 grams. Lazo recognizes that the arresting officer's weight reflects both the contents of the bags and the bags themselves, whereas Kaiser's weight reflects only the contents of the bags, but argues that Kaiser should have weighed the same items as the arresting officer in order to ensure a perfect chain of custody.
State v. Horton, 283 Kan. 44, 151 P.3d 9 (2007), involves an unusually extended and troubled chain of custody. In 1974, police officers investigating a report of a missing girl found hairs inside the girl's high school, inside the passenger compartment of Horton's car, and inside a canvas bag found inside Horton's trunk. 283 Kan. at 50. The bag found inside Horton's trunk was placed, along with other evidence, into the police officer's patrol car trunk without being individually bagged to avoid contamination. 283 Kan. at 47. The case remained unsolved for several years until it was reopened in 2001, and Horton was officially charged with the girl's disappearance in 2003. 283 Kan. at 49–50. At trial, an FBI hair analyst from Washington, D.C., testified that in 1974 he examined the hairs taken from Horton's car and found one to be “microscopically like” and another to be “microscopically similar” to hairs on a brush taken from the girl's home. 283 Kan. at 50. The analysis, however, was insufficient to establish the gender of the person or to identify the source of the hair, so, in the absence of a known hair sample from the missing girl, the report concluded only that “the possibility of the hairs originating from the same individual could not be eliminated.” 283 Kan. at 50. The hairs were not available for defense counsel to examine or test for DNA because the FBI had destroyed the hairs around 1985. 283 Kan. at 50. Horton was convicted of first-degree felony murder. 283 Kan. at 51.
On direct appeal to the Supreme Court, Horton argued that the hair evidence was erroneously admitted because the evidence had been contaminated and destroyed, preventing him from independently analyzing the hair or impeaching the FBI expert. Horton, 283 Kan. at 60–61. The court disagreed, stating:
“The failure to positively identify a piece of evidence does not preclude the admission of the evidence. The lack of positive identification affects the weight of the evidence as opposed to its admissibility. [Citations omitted.] In this case, the State's inability to positively and indisputably identify the source of every hair that was compared does not preclude the admission of the evidence. Rather, the possibility for contamination affects the weight to be given the evidence. The jury bears the responsibility for weighing the evidence, resolving conflicts in the testimony, and drawing reasonable inferences to determine the ultimate facts.” Horton, 283 Kan. at 61.
Lazo recognizes that deficiencies in the chain of custody affect the weight given to evidence but not its admissibility, but he argues that the deficiencies here are so great that the evidence should not have been admitted at all. Lazo cites no authority in support of this argument.
The white powder was inside two knotted plastic bag corners that were together inside a ziplock sandwich bag. Kaiser testified that she weighed only the contents of the bags and not the bags themselves, deriving a weight of 1.66 grams. Kaiser also estimated that a standard ziplock sandwich bag weighs approximately 1 gram. Adding the weight of the white powder and the ziplock bag yields 2.66 grams. The arresting officer's report listed the evidence at 2 .8 grams. It is conceivable, though not certain, that the remaining discrepancy could be caused by the absence of the plastic bag corners.
However, more testimony regarding the chain of evidence was presented. The bags were marked with KBI lab item numbers and Kaiser's initials were on KBI evidence tape affixed to the bag. The evidence was also bar-coded, and when it was transferred within the KBI, the bar code was scanned. When the evidence was not being examined, it was locked in an evidence locker.
Lazo's unsupported contention that the deficiencies in the chain of custody are so great that the evidence should not have been admitted is without any basis in fact. The deficiencies are certainly minor in comparison with those alleged and rejected in Horton above. The only issue here was a very minor and easily explained weight difference, and such a discrepancy should only affect the value the jury gives the evidence and not the admissibility of the evidence itself. See Horton, 283 Kan. at 61.
The court did not err in admitting the evidence of the cocaine at trial.
Affirmed.