Opinion
No. 108,306.
2013-10-4
STATE of Kansas, Appellee, v. Kimaru MAITHO, Appellant.
Appeal from Johnson District Court; John P. Bennett, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kimaru Maitho appeals after a jury found him guilty of one count of DUI. Maitho raises the following four issues on appeal: (1) that reversible error occurred when evidence of his failure to perform a preliminary breath test was admitted at trial; (2) that the district court erred in denying his motion to suppress; (3) that the district court committed reversible error when it answered a question from the jury; and (4) that the district court abused its discretion when it failed to appoint him new counsel. Because we find that none of Maitho's arguments has merit, we affirm.
Facts
At around 10 p.m. on July 22, 2011, Overland Park Police Officer Dana Harrison was dispatched to a domestic disturbance at an apartment complex. Officer Harrison was told that the call involved a disturbance between two males, possibly a father and son. According to dispatch, the reporting party stated that one of the party's names was Kimaru and he drove a maroon Nissan Xterra. When Officer Harrison arrived at the apartment complex, he immediately observed a vehicle matching that description. The vehicle had just pulled out of a parking spot and was driving towards Officer Harrison with its lights off. Officer Harrison made contact with the driver, who acknowledged that his name was Kimaru. Officer Harrison eventually identified the driver as Maitho.
Officer Harrison transitioned to a DUI investigation after noticing Maitho's bloodshot eyes and that the odor of consumed alcohol was coming from his person. Maitho stated that he had a beer to drink about an hour before his contact with Officer Harrison.
Based on the answer and his observations, Officer Harrison decided to have Maitho perform some pre-exit tests. Maitho performed an alphabet test, a counting test, and a finger dexterity test, making mistakes on each of the tests.
Because Maitho did not perform satisfactorily on the pre-exit tests, Officer Harrison asked Maitho to exit his vehicle so he could perform field sobriety tests. Maitho began arguing with Officer Harrison before stating that he did not want to do any more tests. Maitho also refused to take a preliminary breath test.
After Officer Harrison was sure that Maitho would not perform any field sobriety tests, he arrested Maitho and transported him to the police station. Officer Harrison read Maitho an implied consent advisory to inform him of his rights regarding taking a breath test. Maitho refused to take the test.
On October 14, 2011, the State charged Maitho with DUI, driving while suspended, and refusing a preliminary breath test. Maitho was appointed a public defender, Vincent Rivera. At the preliminary hearing, Officer Harrison testified that he stopped Maitho's vehicle because he believed it was involved in the domestic disturbance but he had not been given any specific information on the type of vehicle that may be involved. The district court found probable cause for and bound Maitho over on the DUI charge. Maitho pled not guilty.
On January 26, 2012, Maitho filed a motion to suppress the evidence obtained during the vehicle stop, arguing there was a lack of reasonable suspicion to support the stop of his vehicle. The district court held a hearing on Maitho's motion to suppress, at which Officer Harrison again testified. Officer Harrison's testimony at the suppression hearing was slightly different from his preliminary hearing testimony. When asked what information he had prior to arriving at the residence, Officer Harrison testified:
“We were told there was possibly a fight between a father and son outside where one of the parties was punching the other; and one of the parties ended up on the ground. We also had a description of a vehicle that one of the parties had driven to the scene and had parked out in front of the apartment complex.”
Later in his testimony, Officer Harrison stated that there was a description of the vehicle in the police call notes, a maroon Nissan Xterra. Officer Harrison contacted the person in the vehicle because it matched the description of the vehicle in their call notes, and he had a “pretty good feeling” the driver was the person involved in the fight.
Defense counsel argued that Maitho's detention was illegal because Officer Harrison did not have a reasonable suspicion that Maitho had committed or was in the process of committing a crime. Defense counsel did not point out the difference between Officer Harrison's testimony at the preliminary hearing and his testimony at the suppression hearing.
The district court found reasonable suspicion for the investigatory stop, relying on the fact that Officer Harrison had a specific description of a vehicle that he then located in the area where he had been dispatched. The district court, therefore, denied Maitho's motion to suppress and set the case for trial on March 26, 2012.
On March 5, 2012, the case came before the district court because Maitho wanted to request that Rivera be removed as his lawyer and that the court appoint him a new lawyer. The district judge had the prosecutor leave the courtroom, so he could address Maitho's complaints. Maitho stated that he wanted a new attorney because Rivera failed to bring up the discrepancy between Officer Harrison's testimony at the suppression hearing and his testimony at the preliminary hearing—unlike his preliminary hearing testimony, Officer Harrison claimed to have a vehicle description at the suppression hearing. Maitho also complained that Rivera called the prosecutor to tell him about the discrepancy in the officer's testimony and that Rivera failed to inform him that there was a bench warrant out for him.
The district judge declined to remove Rivera from the case. The district judge refused to consider the claim that Rivera failed to inform him of the bench warrant because Maitho was not supposed to be informed of the warrant. Additionally, the district judge found that Rivera's failure to raise the issue regarding the inconsistent testimony was not enough to have him removed from the case because Rivera could always file a new motion if he thought the issue was significant. Finally, the district judge found that Maitho's issue with Rivera telling the prosecutor about the inconsistency did not create cause to have him removed as Maitho's lawyer because the prosecutor would be informed of it at a later hearing anyway.
At the end of the hearing, Maitho filed a motion to reconsider the district court's suppression ruling. In the motion, Maitho pointed out that the district court's decision was based in large part on Officer Harrison's testimony that he had a description of Maitho's vehicle prior to initiating the traffic stop. And this testimony differed from the officer's testimony at the preliminary hearing, where Officer Harrison testified that he did not have a description of the vehicle. The court and the parties agreed to take up the motion to reconsider at the pretrial conference.
On March 23, 2012, the court held the pretrial conference at which the court considered Maitho's motion to reconsider his motion to suppress and his motions in limine. The State called a supervisor in the dispatch unit for the Overland Park Police Department to testify in support of affirming the decision. The dispatcher testified about how 911 calls are dispatched to police officers in the field, and the State introduced a copy of the call log from the 911 call made on July 22, 2011, which the court admitted. The call log showed that at 10:07:26 a note was entered that said: “DRIVER A NISSAN EXTERRA MARROON [ sic ].” Then the call log noted that at 10:11:11, the dispatched unit arrived on the scene.
Officer Harrison testified again at this hearing. Regarding the discrepancy in his testimony from the two previous hearings, Officer Harrison testified that being a patrol officer for 13 years, he sometimes forgets what information he had received from the dispatch unit. Before testifying at the preliminary hearing, he had not reviewed the call log information from the 911 call but had reviewed his report, in which he had only indicated that he knew the subject's first name. However, before testifying at the motion to suppress hearing, Officer Harrison again reviewed his report and determined that he had obtained the information in his report from the call log. Officer Harrison testified that he, in fact, did know from the call notes the subject's name and the make and model of the vehicle. He just did not recall that he had been given that information.
The district court denied Maitho's motion to reconsider because the court was satisfied with Officer Harrison's testimony and explanation that he had a description of the vehicle matching Maitho's vehicle when he pulled him over. The court again determined that Officer Harrison had the right to stop Maitho's vehicle.
After the court denied this motion, Maitho again requested a new lawyer or at least requested a continuance of the trial. Maitho stated that since the last time he requested a new attorney, he had only met with Rivera for 30 minutes in jail and 20 minutes on the phone. Maitho did not believe that those 50 minutes were sufficient to prepare for a felony trial, which Maitho had just realized was to begin the following Monday.
The district judge stated that he was not going to extend the trial date because he had discussed the trial date during at least two prior hearings where Maitho was present. The district judge also stated he would not appoint Maitho a new attorney based on his perceived lack of sufficient time spent with Rivera. The judge stated that Rivera did not have to talk to Maitho for a certain amount of time before trial and that he would see Maitho for as long as he needed to, using his own judgment. Maitho then asked the judge whether he was saying that he thought 50 minutes was adequate for trial preparation. The district judge answered:
“I'm not judging that at this point. I'm just saying you haven't told me a good reason why he is not prepared for trial to represent you. Generally doesn't hinge on how many times he sees you, it hinges on is he prepared for trial. You haven't told me any reason why he may not be prepared for trial.”
The district court then took up Maitho's motions in limine. At the very end of the hearing, Maitho addressed the district judge again, complaining that his attorney would not tell him what chance he had of being convicted and would not advise him whether to testify. The district judge informed Maitho that his attorney could only advise him and could not definitively answer those questions.
Maitho's case was tried before a jury on March 26, 2012. Prior to the start of the trial, Maitho renewed his motion to suppress based on a statement made on the recording of the vehicle stop in which Officer Harrison allegedly stated that he did not know who Maitho was when he pulled him over. According to defense counsel, this meant that Officer Harrison did not have any specific information on Maitho's vehicle at the time of the stop. The district court denied the motion, finding the statement did not prove that Officer Harrison did not have a description of the vehicle when he pulled it over.
Defense counsel then asked for a continuance in order to obtain a doctor to testify as a witness regarding Maitho's diabetes and the effect it could have had on him when he was taking the sobriety tests. The prosecutor opposed the motion. The district court decided not to continue the trial in order for a doctor to testify. Because the only thing Maitho wanted the doctor to testify about was the symptoms of someone whose diabetes is affecting them, the court stated that it could introduce a statement telling the jury the symptoms of diabetes.
Maitho then pled no contest to the charges of driving while suspended and refusing a preliminary breath test. After the jury heard opening statements, Officer Harrison testified for the State. Defense counsel objected to Officer Harrison's testimony on the grounds raised in his motion to suppress. The district court noted the objection but made the same ruling as before. The State played a redacted version of the recording of the stop for the jury. In the recording, Officer Harrison is heard speaking to another officer who arrived at the scene after him and Officer Harrison said that Maitho was driving away, so Officer Harrison got in front of him. But Officer Harrison stated that he “did not know it was him.” He mentioned that Maitho had his lights off, but he did not mention that he was looking for a particular type of vehicle.
Officer Harrison testified that after Maitho was arrested, when asked whether he had any illnesses or was taking any medication, Maitho answered that he did not. He stated at that time that he had last seen a doctor 3 years ago for diabetes. Other than that response, Maitho never mentioned his diabetes that night. Officer Harrison testified that Maitho was insulted when he asked about his command of the English language. After the State rested, the parties agreed that defense counsel would read to the jury a statement regarding symptoms of hypoglycemia during Maitho's testimony.
Maitho testified in his defense. He stated that he was born in Kenya, Africa, and English was not even his second language. He began learning English in fourth grade, and considered himself proficient in it by seventh grade. He admitted he drank two 12–ounce beers the night before his arrest. Maitho was offended when Officer Harrison asked him if he could say his “ABCD's” after Maitho had already told him that he had been to a community college. Maitho thought he performed the alphabet and numbers tests correctly. Maitho argued with the officer about his performance on the alphabet test because he had a lot of emotions going on and he was upset and confused—not because he was drunk.
Maitho testified that he thought he was having symptoms from his diabetes that night—either from high or low blood sugar. Maitho refused to perform any more tests after the initial testing because he felt he had performed adequately on those tests and he felt that the officer was going to say he was drunk regardless of his performance on any further test. According to Maitho, Officer Harrison concluded that Maitho was drunk and should not be driving before Maitho had even performed any tests. Maitho testified that he was not under the influence to a degree that rendered him unsafe to operate a vehicle.
After cross-examination and redirect examination, defense counsel read into the record the stipulated statement on the symptoms of hypoglycemia. That was the final evidence presented in the case, and after instructions and closing arguments, the jury began deliberations that evening and continued them the next morning. During deliberations, the jury sent a written question to the court regarding what to do if jurors did not agree. After consulting with the parties, the district court sent a response to the jury that said: “Your agreement on a verdict must be unanimous.”
The jury found Maitho guilty of DUI. The district judge asked the jury if there was anyone who did not agree with the verdict, and there was no response. Defense counsel asked that the jury be polled, and all jurors agreed that it was their verdict.
After denying Maitho's motion for judgment of acquittal and motion for a new trial, the district court sentenced Maitho to 12 months' probation with an underlying 12–month jail sentence. Maitho also received a consecutive 12 months' probation with an underlying jail sentence of 6 months for the driving while suspended charge and a $105 fine for the refusal to submit to a preliminary breath test charge.
Maitho timely appeals.
Analysis
Preliminary Breath Test
Maitho argues that a reversible trial error occurred when the prosecutor questioned him at trial about his failure to perform a preliminary breath test. Although Maitho does not raise this as a prosecutorial misconduct issue, he is claiming that evidence of his preliminary breath test was erroneously admitted based on questions asked by the prosecutor. Specifically, Maitho complains about the following testimony, which came when the prosecutor was cross-examining him about his arguing with Officer Harrison:
“Q. And when the two of you began to argue and you thought as though he had already formed an opinion that you were drunk and there was nothing you could do right for that officer, why not show him you were right by providing him with a breath test?
“[Defense Counsel:] Objection. Fourth Amendment violation.
“The Court: Overruled.
“Q. [Prosecutor] If your conversations with him out there in that parking lot were not sufficient for you to demonstrate that you were right, why not show him you were right with a breath test?
“A. At that point, I was just upset and I was like, you know, I don't want to do any more of these tests.
“Q. Why not?
“A. Because I felt that I had done the previous test adequately and he insisted that I had not.
“Q. Did you think as though he was going to portray your breath test as you doing it incorrectly or insufficiently?
“A. Like I said before, I felt that I had performed adequately, and you know
“Q. Did you feel as though if you took the breath test that you would perform adequately on that?
“[Defense Counsel]: Objection. Asked and answered.
“The Court: Overruled.
“A. I did not think about that. I was just—like you had on the audio, just got to the point, no, I don't want to do any more tests. I did not think about my performance on the breath test.
“Q. Then you drove back to the station and he asked you to take a breath test at the station, right?
“A. Yes.
“Q. When you got back to the station, as he read through that Implied Consent Advisory, it never ran through your mind what numbers would pop up on that device if you blew?
“A. No.
“Q. You never thought about it?
“A. No.
“Q. What did you think would happen if you took the test and you provided all zeroes?
“A. I did not think about that.”
The prosecutor also mentioned Maitho's breathalyzer test refusal during closing arguments.
A contemporaneous objection is necessary to preserve all prosecutorial misconduct claims involving evidence admission and exclusion, such as those arising out of questions posed by a prosecutor and responses to those questions. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). Although defense counsel objected twice during the prosecutor's questioning, the objections were not specifically that the preliminary breath test refusal was inadmissible. Maitho's failure to preserve this issue by objecting to its admission precludes our review. See State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012) (finding evidentiary issue not raised below unpreserved for appeal).
Nevertheless, we find that the prosecutor was only asking Maitho about the breathalyzer test Maitho refused after he was arrested and taken to the police station. Although a defendant's refusal to take a preliminary breath test is inadmissible as evidence in a prosecution for DUI, a defendant's refusal to take a breathalyzer test following an arrest is admissible at trial. See State v. Wahweotten, 36 Kan.App.2d 568, 575–76, 143 P.3d 58 (2006), rev. denied 283 Kan. 933 (2007); K.S.A. 8–1001.
The prosecutor never mentioned the preliminary breath test refusal. During the entire line of questioning on which Maitho relies, the prosecutor was talking about the admissible breathalyzer test refusal. Although the prosecutor's questions mentioned a generic breath test refusal, the jury did not know about the preliminary breath test refusal. So the only conclusion it could make was that that the prosecutor was talking about Maitho's refusal to take a breathalyzer test after his arrest.
In his appellate brief, Maitho misconstrues the prosecutor's questions, stating that “[t]he prosecutor referred to a breath test ‘out there in the parking lot’....” If the testimony is read, however, the prosecutor asked Maitho about his conversations with Officer Harrison “out there in that parking lot” and not about a breath test he refused at that time. Accordingly, there was no inadmissible evidence presented on Maitho's refusal to take a preliminary breath test. Thus, we find no reversible error.
Motion to Suppress
Maitho argues that the district court erred in denying his motion to suppress. Specifically, Maitho bases his argument on the conflicting testimony regarding whether Officer Harrison knew the type of vehicle Maitho was driving before he pulled him over. Maitho claims that Officer Harrison did not know the type of vehicle he was driving and therefore he lacked reasonable suspicion for the stop.
Even a brief seizure must be reasonable under the Fourth Amendment to the United States Constitution. A traffic stop “is considered a seizure of the driver ‘even though the purpose of the stop is limited and the resulting detention quite brief.’ [Citations omitted.]” State v. Thompson, 284 Kan. 763, 773, 166 P.3d 1015 (2007). A traffic stop is considered to be an investigatory detention, also known as a Terry stop, which is statutorily permitted if “ ‘an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime.’ [Citations omitted.]” State v. Thomas, 291 Kan. 676, 687, 246 Kan. P.3d 678 (2011); see K.S.A. 22–2402.
Whether reasonable suspicion exists is a question of law. But appellate courts use a mixed standard of review, determining whether substantial competent evidence supports the district court's findings and reviewing the district court's legal conclusions de novo. Thomas, 291 Kan. at 688.
Maitho essentially is arguing that substantial competent evidence did not support the district court's finding that Officer Harrison had reasonable suspicion to pull over Maitho's vehicle. Maitho contends that there is insufficient evidence to support a finding that Officer Harrison knew the make and model of the vehicle driven by the individual involved in the domestic dispute.
Nevertheless, the dispatch log from the 911 calls received about this incident included an entry that Maitho was driving a maroon Nissan Xterra. Significantly, the entry was made before Officer Harrison arrived and pulled over Maitho's vehicle. Additionally, Officer Harrison testified at the suppression hearing and the motion to reconsider the denial of the suppression motion that he did have a description of the vehicle. Appellate courts cannot reweigh evidence when reviewing a motion to suppress evidence. State v. Edgar, 296 Kan. 513, 519, 294 P.3d 251 (2013). Regardless of some discrepancies in the testimony, there was substantial competent evidence to support the district court's finding that Officer Harrison knew the type of vehicle Maitho was driving when he initiated the stop. Accordingly, we affirm the denial of Maitho's motion to suppress.
Response to Jury Question
Maitho argues reversible error occurred when the district court responded to the question asked by the jury during deliberations. Maitho contends that both the procedure used in answering the question and the answer itself were problematic.
During deliberations, the jury sent the following written question to the court: “Ten jurors agree with one decision. Two jurors do not agree with that decision. What do we do from here?” The district judge initially stated that his view was “to just tell them they have to reach a unanimous verdict.” Counsel for both sides agreed with the judge. But then defense counsel stated: “Your Honor, is there any—is it possible to instruct them that they, in fact, don't have to reach a verdict[?]” The following exchange then occurred:
“The Court: I don't tell them they have to reach a verdict, I tell them your agreement must be unanimous, I say your agreement on a verdict must be unanimous.
“[Prosecutor]: That's already in the instructions, Judge.
“The Court: So they'll tell us if they can't reach a unanimous verdict. I think they may not, that's up to them. I usually don't try to pressure them, I may bring them in and ask if they think extra time would help but that's about the best I can do.”
The district court then sent a written response to the jury, which stated: “Your agreement on a verdict must be unanimous,” and was signed by the judge.
The parties reconvened right before the jury was to announce its verdict, and at that time, defense counsel stated he was renewing Maitho's objection to the instruction given to the jury saying it had to come to a unanimous verdict. The district judge stated that he did not tell them they had to reach a verdict; he just told them their decision on a verdict must be unanimous.
Maitho first takes issue with the procedure used by the district court to answer the jury's question—specifically, the fact that the court did not call the jury into the courtroom to answer its question in the presence of the defendant. Maitho argues the district court violated the statutory procedure set forth in K.S.A. 22–3420(3), as well as his constitutional rights to be present at all critical stages of his trial, to an impartial judge, and to a public trial.
Resolution of this issue requires statutory and constitutional interpretation, which are questions of law over which this court has unlimited review. See State v. Womelsdorf, 47 Kan.App.2d 307, 320, 274 P.3d 662 (2012), rev. denied 297 Kan. –––– (2013) (citing State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 [2010] ).
Preliminarily, it should be noted that Maitho is raising this issue for the first time on appeal. He did not challenge the district court's procedure of responding to the question in writing rather than calling the jury into the courtroom to communicate the answer. Generally, issues—even trial errors affecting constitutional rights—not raised before the district court cannot be raised on appeal. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012); State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). There are exceptions to this general rule, but Maitho does not argue that any of these exceptions apply. See State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200 (2012). He only argues that the Kansas Supreme Court previously has addressed this issue for the first time on appeal. See State v. Bell, 266 Kan. 896, 918–20, 975 P.2d 239,cert. denied528 U.S. 905 (1999). Several cases decided after Bell have also considered the issue for the first time on appeal. See State v. Brown, 272 Kan. 809, 812–13, 37 P.3d 31 (2001); Womelsdorf, 47 Kan.App.2d at 321. Accordingly we will address the merits of the argument.
Maitho argues that the district court's manner of responding to the jury's question violated K.S.A. 22–3420(3) and his right to be present at every critical stage of trial. A defendant has a constitutional and statutory right to be present at every stage of trial. U.S. Const. amend. VI; K.S.A. 22–3405. K.S.A. 22–3420(3) states:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
Overruling its prior precedent, the Kansas Supreme Court recently interpreted K.S.A. 22–3420(3) to mean that any question from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence unless the defendant is voluntarily absent. State v. King, No. 99,479, 297 Kan. ––––, 305 P.3d 641, 652 (2013). Pursuant to King, the district court's failure to answer the jury's question in open court and in Maitho's presence was error.
Nevertheless, the error is subject to the harmless error standard stated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, (1967). See King, 305 P.3d at 652. Under this standard, error may be declared harmless if the party benefitting from the error proves beyond a reasonable doubt that the error will not or did not affect the outcome of the trial in light of the entire record. In other words, where there is no reasonable possibility that the error contributed to the verdict. See State v. Herbel, 296 Kan. 1101, 1110–11, 299 P.3d 292 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
The State argues that the error was harmless because there was nothing to show that the jury would have reached a different verdict if the judge had read the response in open court instead of providing it in writing from the bailiff. The State notes that the judge's answer simply recited a portion of an instruction already provided to the jury, did not provide any additional information that could have changed the jury's verdict, and did not place any emphasis on whether the jury should convict or acquit Maitho.
The State has met its burden of proving beyond a reasonable doubt that the error did not affect the outcome of the trial. The only question at this point is whether the outcome of the trial would have been different if the judge called the jury into the courtroom and read the answer to it instead of providing a written answer. There is nothing in the record suggesting this would have affected the verdict. Thus, we find the error was harmless beyond a reasonable doubt.
Continuing, Maitho also argues that the procedure of sending a written answer to a jury question used by the district court violated his fundamental rights to an impartial judge and a public trial. As Maitho correctly states, the lack of an impartial judge and a violation of the right to a public trial are considered structural errors that are not subject to harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Chapman, 386 U.S. at 23 n. 8);Boldridge v. State, 289 Kan. 618, 627–28, 215 P.3d 585 (2009).
A panel of this court previously addressed and rejected these exact claims in Womelsdorf, 47 Kan.App.2d at 319–25. In Womelsdorf, the district court judge responded to a jury question in writing instead of calling the jury into the courtroom to provide an answer orally. Like Maitho, Womelsdorf was present when the district judge consulted with the attorneys and formulated its response to the jury's question. On appeal, Womelsdorf contended that this procedure violated her right to an impartial judge and a public trial because the completed communication occurred outside the presence of the judge in “ ‘a place where the public cannot go.’ “ 47 Kan.App.2d at 325. The panel rejected both of these arguments. 47 Kan.App.2d at 323–25.
With regard to Womelsdorf's claim that the district court's procedure violated her right to an impartial judge, the court explained:
“Here, the written answer to the jury denied it additional information it was seeking and reminded the jury to consider only the evidence admitted during trial.... Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorf's constitutional right to an impartial judge.” 47 Kan.App.2d at 324.
Concerning Womelsdorf's allegation of a violation of her right to a public trial, the court concluded:
“[T]he judge read the jury questions on the record, in the courtroom, and the judge and both counsel discussed how to respond to the questions. Womelsdorf does not contend that she was not present in the courtroom for that discussion or that the courtroom was not open to the public when the discussion took place. Nothing about the district court's written response to the jury question, which is now available to the public as part of the court file, was hidden from public view. Obviously, the public was not present when the bailiff delivered the written response to the jury room, but jury deliberations are never open to the public. Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorf's constitutional right to a public trial.” 47 Kan.App.2d at 325.
Subsequent panels of this court have adopted the analysis set forth in Womelsdorf and rejected similar alleged violations of the defendant's right to an impartial judge and a public trial. See State v. Deason, No. 107,546, 2013 WL 3330535, at *6–7 (Kan.App.2013) ( unpublished opinion), petition for rev. filed July 26, 2013; State v. Juarez–Jimenez, No. 106,206, 2013 WL 3155779, at *6–7 (Kan.App.2013) (unpublished opinion), petition for rev. filed July 22, 2013; State v. Burris, No. 106,617, 2013 WL 1729223, at *5 (Kan.App.2013) (unpublished opinion), petition for rev. filed May 20, 2013; State v. Wells, No. 108,165, 2013 WL 3455798, at *9–10 (Kan.App.2013) (unpublished opinion), petition for rev. filed August 2, 2013; State v. Rucker, No. 106,504, 2013 WL 2917604, at *4 (Kan.App.2013) (unpublished opinion), petition for rev. filed July 8, 2013; State v. Vorrice, No. 107,468, 2013 WL 2395860, at *10–11 (Kan.App.2013) (unpublished opinion); State v. Hogan, No. 106,220, 2012 WL 5364674, at *8–9 (Kan.App.2012) (unpublished opinion), rev. denied September 4, 2013; State v. Bolze–Sann, No. 105,297, 2012 WL 3135701, at *6–7 (Kan.App.2012) (unpublished opinion), petition for rev. filed August 24, 2012. Accordingly, we hold that this issue is without merit.
Finally, Maitho argues that even if “the multiple statutory and constitutional violations that occurred in this case, taken individually, do not rise to the level of reversible error,” this court should reverse due to cumulative error. “Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.] One error is insufficient to support reversal under the cumulative effect rule. [Citation omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
Because the record only supports one of Maitho's allegations of error regarding the procedure utilized by the district court to respond to the jury's question, there is no cumulative error.
Maitho also takes issue with the content of the district court's answer to the jury's question. Maitho argues the district court's response was erroneous because it did not actually answer the jury's question. Maitho argues—as he did before the district court—that the court should have also included in its response that the jury did not have to reach a verdict.
K.S.A. 22–3420(3) requires the district court to respond to jury inquiries regarding law or evidence, but the manner and extent of the district court's response rests in the sound discretion of the district court. State v. Bunyard, 281 Kan. 392, 410, 133 P.3d 14 (2006). A district court only breaches the requirement to respond to the jury's inquiry if the district court does not attempt to provide a meaningful response to an appropriate request or gives an erroneous response. Once the district court attempts to give an enlightening response to the jury's request, then any issue to the sufficiency or propriety of the response is reviewed for an abuse of discretion. State v. Miller, 268 Kan. 517, 526, 997 P.2d 90 (2000).
Maitho argues that the district court did not attempt to provide a meaningful response to the jury's request. To support his argument, Maitho relies on State v. Duncan, No. 99,710, 2009 WL 398995 (Kan.App.) (unpublished opinion), rev. denied 289 Kan. 1281 (2009). In Duncan, the jury asked the court during deliberations: “ ‘What are the instructions for a split decision? (eg. 6 yes[,] 6 no.)’ “ 2009 WL 398995, at *4. The district court responded over Duncan's objection: “ ‘There are two verdict options: Guilty or Not guilty if you are able to agree on a verdict.’ “ 2009 WL 398995, at *4.
After finding that the court's response was not unduly coercive, the Duncan court found that the district court's response failed to answer the question posed by the jury, which was an abuse of discretion. The court stated that “[a] response that actually answered the question would have informed the jury that a mistrial would be declared if it reached an impasse and could not unanimously agree on a verdict.” 2009 WL 398995, at *5. The court went on, however, to find that the failure to respond was harmless error. The court determined it was clear from the polling of the jury that its verdict was unanimous. Thus, no reversible error occurred in the manner the district court responded to the jury's inquiry. 2009 WL 398995, at *5.
Here, as in Duncan, the district court's response that a verdict must be unanimous did not exactly answer the jury's question of what to do if the verdict was not unanimous. But Maitho's suggestion to instruct the jury that it did not have to reach a verdict would not necessarily have answered the question either. Based on the reasons given for its answer, the district court was attempting not to coerce the jury with its answer. In arguing that the jury's response was coercive, Maitho cites State v. Overstreet, 288 Kan. 1, 18–20, 200 P.3d 427 (2009), in which the district court gave a lengthy Allen-type instruction in response to the jury announcing that it was split on one of the charges, which was found to be coercive. Here, the answer was simply nonresponsive if anything.
Nevertheless, we find that even if the answer was an abuse of discretion for being nonresponsive, the error was harmless. A poll of the jury revealed that the verdict was unanimous. There was no reversible error in the way the district court responded to the jury's question.
Appointment of New Counsel
Maitho argues that the district court erred in refusing to appoint him new counsel. Maitho made two specific requests for new counsel—once at the pretrial motion hearing on March 5, 2012, and again at a hearing on March 23, 2012. The district court denied both requests.
Generally, we review a district judge's refusal to appoint new counsel under an abuse of discretion standard. State v. Sappington, 285 Kan. 158, Syl. ¶ 4, 169 P.3d 1096 (2007). Judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
If a district judge has a reasonable basis to conclude that appointed counsel could provide “effective aid in the fair presentation of a defense,” then his or her decision should not be disturbed on appeal. Sappington, 285 Kan. at 166. Moreover, Maitho bears the burden of proving that the district court abused its discretion in this case. See 285 Kan. at 166.
Maitho argues that this court should consider three factors—the timeliness of the motion, the adequacy of the court's inquiry into the defendant's complaint, and whether the conflict was so great that there was a complete breakdown in communication. State v. Saeger, 13 Kan.App.2d 723, Syl. ¶ 2, 779 P.2d 37 (1989). But the Kansas Supreme Court has stated that instead of the three-factor test from Saeger, it preferred the test that a defendant show “justifiable dissatisfaction” with appointed counsel before he or she is entitled to substitute counsel. State v. Jasper, 269 Kan. 649, 653–54, 8 P.3d 708 (2000).
A district court is not required to appoint new counsel unless a defendant shows a justifiable dissatisfaction with his or her current counsel. See Jasper, 269 Kan. at 654. Justifiable dissatisfaction can occur when there is irreconcilable conflict, a conflict of interest, or a complete breakdown of communication between a defendant and his or her attorney. 269 Kan. at 654. Under this framework, Maitho must show that his complaints amounted to a complete breakdown of communication.
A complete breakdown of communication can amount to a violation of the Sixth Amendment right to effective counsel. Not all disagreements, however, between a defendant and his or her attorney about how to proceed in a case amount to a complete breakdown in communication. See State v. Sykes, 35 Kan.App.2d 517, 530–32, 132 P.3d 485,rev. denied 282 Kan. 795 (2006).
Maitho contends that he made his first request for new counsel long enough prior to trial that it would not have unduly inconvenienced the parties to appoint new counsel and that the district court did not make an adequate inquiry into his complaints during his second request for new counsel. Again, these are not factors to consider when determining whether new counsel should be appointed. See Jasper, 269 Kan. at 654.
Moreover, we find that the district court made adequate inquiry into Maitho's claims. When Maitho first raised an issue regarding his attorney, the district court cleared the prosecutor from the room and heard Maitho's request. Although the district court did not ask Rivera for a statement on the issue or clear the prosecutor from the room during Maitho's second request for new counsel, the district court adequately considered Maitho's request both times,
Maitho argues Rivera's lack of communication and inadequate preparation was evidenced by Rivera's day-of-trial request for a continuance to secure an expert witness to testify about Maitho's diabetes. Maitho contends that if his attorney had adequately prepared and communicated with Maitho, he may have been able to secure an actual witness to testify instead of having to settle for a stipulation on the effects of diabetes.
Maitho contends that all of his complaints—his repeated requests for new counsel, his unrefuted claim that he only had 50 minutes of contact with defense counsel before trial, and defense counsel's late request for a continuance indicating, according to him, a lack of preparation—were all indicative that the attorney/client relationship had deteriorated to the extent that there was a complete lack of communication.
Nevertheless, Maitho has not shown a complete breakdown in communications. In both instances when Maitho requested new counsel, Rivera followed through on Maitho's complaints. In the first instance, Maitho complained that Rivera failed to challenge Officer Harrison's testimony at the suppression hearing, and immediately after the hearing, Rivera filed a motion challenging Officer Harrison's testimony. In the second instance, Maitho indicated that he might need to call additional witnesses once he had enough time to talk to Rivera. On the morning of trial, Rivera requested a continuance to obtain a witness Maitho wanted. Granted, the district court denied the continuance. But the request resulted in an agreed stipulation and admission of the evidence Maitho sought to present.
The record reveals that Rivera did everything Maitho asked of him. Rivera diligently represented Maitho. We, therefore, find no abuse of discretion in the district court's denial of Maitho's request for appointment of new counsel.
Affirmed.