Opinion
No. 110,511.
2014-12-19
STATE of Kansas, Appellee, v. Ray A. MILES, Appellant.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.Christina M. Kerb, of Kansas Appellate Defender Office, for appellant.Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.
Christina M. Kerb, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Ray A. Miles appeals from his convictions and sentences for three counts of aggravated battery, one count of battery, one count of criminal threat, and one count of criminal damage to property. Miles argues the district court erred by: (1) denying his request for a self-defense jury instruction; (2) admitting a surveillance video into evidence without the proper foundation; (3) using his criminal history score to increase his sentence without proving his prior convictions to a jury; and (4) sentencing him to the aggravated number of months within the sentencing grid box without proving the aggravating factors to a jury. We disagree and affirm.
Facts
On May 23, 2012, at approximately 9:10 a.m., Miles went to the WIBW news station in Topeka, Kansas. The receptionist buzzed Miles into the front lobby because unlike the outer doors to the building, the inner doors into the reception area were locked. The receptionist went to news director Jon Janes and said, “There's a man up front and he's got a problem and he's refusing to leave.” Janes went to the front lobby and spoke to Miles, who wanted an investigative story done about a problem he was having with the Veterans Administration. Janes told Miles the station could not help him. Miles seemed agitated, angry, and upset and said, “You're going to do my story. Somebody's going to do my story.” Miles then walked out the front doors. Janes watched Miles walk away, then Janes returned to his meeting.
A few minutes later Miles returned to the station, but the receptionist would not let him back into the front lobby. Another WIBW employee, Robert Peppers, called the police. Miles then picked up a lamp from the entryway, broke the window on the inner door, entered the station, and proceeded down the hallway. An employee came into Janes' meeting room and said, “The guy just broke in the front and he's running to the back.” Janes immediately left the room to see if he could locate Miles. When Miles saw Janes, Miles said, “You wouldn't do my story,” ran towards Janes and hit him, knocking Janes down to the floor. Roger Brokke, Greg Palmer, and Cary Lahnum all witnessed Miles hitting Janes and Janes falling to the ground from the blow.
Janes testified Brokke then charged at Miles in what Janes described as a football tackle. Janes also recalled that Miles squared up, acting ready to hit Brokke. Janes could not remember whether Miles was ready to hit Brokke before or after Brokke started coming at Miles. Brokke testified he “rushed” Miles so he would not be able to further hurt Janes. Miles swung and hit Brokke several times. Brokke grabbed Miles as he fell to the ground. Palmer also ran at Miles; Miles was swinging his fists, but Palmer and Lahnum came at Miles and held him. Brokke, Lahnum, Palmer, and Janes together attempted to subdue Miles by pinning him on the floor.
At some point during the struggle, Miles said, “I'm going to kill you fucking old guys.” Several people were involved in the struggle as they tried to wrestle Miles to the ground. At some point, someone said, “He's got a knife.” While everyone was struggling in a pile on the floor, Miles kicked Lahnum in the face; bit Brokke on the shoulder; stabbed Brokke in the hip; attempted to bite Palmer on the wrist; and stabbed Palmer in the leg. Lahnum was able to grab the knife and threw it away from the struggling men.
By the time Officer Jon Soden arrived, about eight people were holding down various parts of Miles' body in order to prevent him from moving. Soden handcuffed Miles and observed that one individual was bleeding from his upper thigh and Brokke was bleeding from what appeared to be a bite mark on his shoulder. At trial, Miles admitted he pushed Janes to the ground but claimed he had no intent to do anything after that.
The State ultimately charged Miles with one count of severity level 4 aggravated battery, two counts of severity level 7 aggravated battery, one count of aggravated burglary, one count of criminal threat, one count of battery, and one count of criminal damage to property. Prior to trial, the State filed a motion in limine requesting that Miles not be allowed to present a self-defense theory. After a hearing on the motion, the district court reserved ruling on the issue until after evidence was presented but advised defense counsel he could not mention self-defense in either voir dire or his opening statement. At the end of the trial, defense counsel renewed his motion for a self-defense instruction. Defense counsel argued Miles was entitled to a self-defense instruction because he testified he had no intent to do anything further after pushing Janes and no one testified that Miles made aggressive movements towards Brokke before Brokke rushed him. The State argued witnesses heard Miles threaten to kill someone, which qualified as a forcible felony; therefore, Miles was not entitled to the use of self-defense. The district court denied Miles' motion.
The jury found Miles guilty of three counts of aggravated battery, one count of battery, one count of criminal threat, and one count of criminal damage to property. However, the jury found Miles not guilty of aggravated burglary. The district court sentenced him to 88 months in prison to run consecutive to 12 months in jail.
Miles timely appeals.
Did the District Court Err by Denying Miles' Request for a Self-defense Jury Instruction?
Miles argues the district court erred by failing to give a jury instruction on self-defense. The State contends a self-defense instruction was not legally appropriate.
“ ‘When a criminal defendant has requested a jury instruction that the trial court declines to give, that failure is reviewed as a question of law.’ “ State v. Plummer, 295 Kan. 156, 160, 283 P .3d 202 (2012) (quoting State v. Plummer, 45 Kan.App.2d 700, Syl. ¶ 1, 251 P.3d 102 [2011] ). The analysis turns on whether the instruction was legally appropriate and factually supported. See 295 Kan. at 162.
“(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).” Plummer, 295 Kan. 156, Syl. ¶ 1.
A defendant's own assertions may provide adequate grounds to warrant an instruction. See State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008). By the same token, other evidence alone may be enough. A defendant need not testify in support of a self-defense theory to establish a sufficient factual basis for an instruction. State v. Heiskell, 8 Kan.App.2d 667, Syl. ¶ 6, 666 P.2d 207 (1983). In evaluating the evidence the appellate court must resolve every factual dispute and credibility determination in the defendant's favor. See State v. Friday, 297 Kan. 1023, 1036–37, 306 P.3d 265 (2013).
We first address whether a self-defense instruction was legally appropriate. K.S.A.2013 Supp. 21–5222(a) states:
“A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force.”
However, K.S.A.2013 Supp. 21–5226 states the defense of self-defense is not available to a person who:
“(a) Is attempting to commit, committing or escaping from the commission of a forcible felony;
“(b) initially provokes the use of any force against such person or another, with intent to use such force as an excuse to inflict bodily harm upon the assailant; or
7F'(c) otherwise initially provokes the use of any force against such person or another, unless:
(1) Such person has reasonable grounds to believe that such person is in imminent danger of death or great bodily harm, and has exhausted every reasonable means to escape such danger other than the use of deadly force; or
(2) in good faith, such person withdraws from physical contact with the assailant and indicates clearly to the assailant that such person desires to withdraw and terminate the use of such force, but the assailant continues or resumes the use of such force.”
Miles argues K.S.A.2013 Supp. 21–5226(a) should not operate as an automatic bar to a self-defense instruction unless the evidence conclusively establishes the statute applies. He claims the self-defense instruction should be given and, if the evidence supports the application of an exception to self-defense under K.S.A.2013 Supp. 21–5226(a), then the district court should also instruct on the exception. See PIK Crim. 4th 52.230 (instruction on when forcible felon not entitled to use force). The State argues a self-defense instruction was legally inappropriate because K.S.A.2013 Supp. 21–5226(a), (b), and (c) all apply. Miles does not argue 21–5226(b) and (c) do not apply.
K.S.A.2013 Supp. 21–5226(a)
Pursuant to K.S.A.2013 Supp. 21–5226(a), a self-defense instruction was not available to Miles if he was “attempting to commit, committing or escaping from the commission of a forcible felony.” A forcible felony includes “treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person.” K .S.A.2013 Supp. 21–5111(n). Miles was charged with multiple forcible felonies, including aggravated battery, aggravated burglary, and criminal threat. Miles argues it was up to the jury to decide whether he was committing one of the charged forcible felonies before the charged forcible felonies could be used to prohibit the defense of self-defense.
Miles' argument relies on State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 (1978), disapproved of on other grounds by State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011). The codefendants in Sullivan were charged with premeditated murder or, in the alternative, felony murder. The defendants objected at trial to the jury instruction which stated “defendants cannot claim the defense of self-defense” due to K.S.A. 21–3214 (now K.S.A.2013 Supp. 21–5226) which prohibited the use of self-defense while attempting or committing a forcible felony. There were two conflicting versions of the facts in this case. If the jury found the defendants guilty of attempted burglary supporting a conviction for felony murder, then the jury instruction correctly stated self-defense was not available. Conversely, if the jury did not find the defendants guilty of attempted burglary, then they were entitled to an instruction on self-defense. The Sullivan court concluded: “[T]he instruction given by the court took from the jury the decision as to whether the defendants had completed the necessary overt act and attempted the burglary.” 224 Kan. at 126. It then advised that “[o]n a new trial under similar facts it would appear to be the better practice to allow the jury to determine if [the alleged forcible felony] had been committed. If the defendants were guilty of the crime of attempted burglary, self-defense was not available to them.” 224 Kan. at 126.
However, in a later case, State v. Bell, 276 Kan. 785, 80 P.3d 367 (2003), the district court denied Bell's request for a self-defense instruction. The Kansas Supreme Court held: “As the defendant was charged with the forcible felonies of first-degree murder and criminal discharge of a firearm at an occupied vehicle, he was excluded from a self-defense instruction by K.S.A. 21–3214(1) .” 276 Kan. at 793. Contrary to Sullivan & Sullivan, Bell states that merely charging a defendant with a forcible felony defeats a defendant's right to present the defense of self-defense.
In State v. Kirkpatrick, 286 Kan. 329, 336, 184 P.3d 247 (2008), disapproved on other grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013), our Supreme Court concurred with Bell when it found it was improper for the district court to give a self-defense instruction in the felony—murder case when the underlying felony was a forcible felony-criminal discharge of a firearm at an occupied dwelling. The majority relied on Bell and found the facts were similar to Bell's facts where the charged forcible felony was criminal discharge of a firearm at an occupied vehicle. The majority also limited its holding to the facts of the case because the defendant was the aggressor at all times. 286 Kan. at 338. The dissent claimed the majority was essentially declaring that once a defendant was merely charged with a forcible felony, then K.S.A. 21–3214(1), now K.S.A.2013 Supp. 21–5226(a), functioned as a complete bar of a self-defense claim. 286 Kan. at 356 (Nuss, J., dissenting).
Justice Nuss—now Chief Justice Nuss—wanted to distinguish Bell and reviewed the pre- Bell case law:
“In my view, these statutes are designed to bar self-defense only if the accused is already otherwise committing a forcible felony when he or she commits a separate act of violence, i.e., in purported self-defense. Indeed, before Bell, those appeared to be the cases in Kansas where the defense was barred. See State v. Purdy, 228 Kan. 264, 615 P.2d 131 (1980) (during residential burglary, occupant retrieves handgun and is shot by burglar; self-defense denied); State v. Marks, 226 Kan. 704, 707, 602 P.2d 1344 (1979) (during armed robbery of service station, proprietor strikes defendant with cane and is shot; self-defense denied).
“The case of State v. Alderson, 260 Kan. 445, 922 P.2d 435 (1996), supports my opinion that the legislature never contemplated that if a single act of self-defense was the same act constituting the commission of the purported forcible felony, that the self-defense claim would be barred. Its facts are similar in that not only was the first-degree felony-murder charge based on the underlying felony of criminal discharge of a firearm at an occupied vehicle, but also that the act of self-defense was the very same act allegedly constituting the commission of that crime. According to defendant, while the victim drove his car circularly in a parking lot, the victim almost hit defendant's friend and was headed toward him. Defendant admitted firing two or three shots at the car; there was no dispute the victim was in the car. Defendant testified he was outside of his car and that he fired in self-defense to prevent the victim from running over him. Despite a large amount of evidence contrary to defendant's story, he was allowed to present his self-defense theory and the court instructed on the self-defense theory. Unlike the majority opinion, on appeal this court did not reach out and bar the self-defense claim or instruction as a matter of law under K.S.A. 21–3214, which would have been the easiest resolution.
“The case of State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 (1978), further supports my opinion. There, defendant and his brother were hiding outside a fannhouse where they had gone either to retrieve defendant's possessions taken by one of the occupants or to obtain other property items. Several occupants then opened the door to let a dog out. Defendant claimed that his shooting of one occupant was an accident because he was actually shooting at the vicious dog in self-defense. The State responded that Sullivan was involved in the commission of aggravated burglary at the time he shot, apparently the underlying felony for his felony-murder conviction.
“Although the defendant was charged with a forcible felony, i.e., murder (see K.S.A. 21–3110[8] ), unlike the majority opinion here, the Sullivan court did not reach out and simply apply K.S.A. 21–3214 to bar his self-defense claim. Indeed, it expressly held the trial court erred when that court gave an ‘instruction against self-defense’ which provided: “ ‘Under Kansas law, the circumstances in this case are such that the defendants cannot claim the defense of self-defense, and you will not consider this as a defense.’ “ 224 Kan. at 124. According to the Sullivan court, ‘[T]he problem here is that the instruction ... took from the jury the decision as to whether the defendants had completed the necessary overt act and attempted the burglary.’ 224 Kan. at 126. Accordingly, it reversed and remanded for the jury to decide if attempted burglary had in fact been committed.
“The case of State v. Ackward, 281 Kan. 2, [128 P.3d 382 (2006),] also supplies some guidance. There, a death occurred during a purported attempt to possess marijuana with intent to sell, a potential forcible felony. The trial court not only instructed on self-defense, but also instructed that a person is not justified in using force in defense if committing a forcible felony. This court held that the trial court did not err in instructing the jury on the felony-murder charge that a person is not justified in using force in defense of himself or herself if attempting to possess marijuana with intent to sell. 281 Kan. at 26. Unlike the majority opinion, on appeal the Ackward court did not reach out and bar the self-defense claim or instruction as a matter of law under K.S.A. 21–3214, which would have been the easiest resolution. This opinion, like Sullivan, suggests that it is a jury question whether self-defense could apply or if the defendant was instead committing a forcible felony.
“See also State v. Gayden, 259 Kan. 69, 910 P.2d 826 (1996) (defendant's request for self-defense instruction in felony-murder case with attempted voluntary manslaughter as underlying felony not rejected under K.S.A. 21–3214; rather, court rejected because evidence did not support defendant's belief that shooting was necessary to defend himself against victim's imminent use of unlawful force).” Kirkpatrick, 286 Kan. at 361–64 (Nuss, J., dissenting).
There seems to be support for Miles' argument that K.S.A.2013 Supp. 21–5226(a) could not automatically prohibit a self-defense instruction just because forcible felonies were charged, and the mere allegation of a forcible felony could not automatically bar a defendant from pursuing a self-defense instruction.
K.S.A.2013 Supp. 21–5226(b)
The State also argues K.S.A.2013 Supp. 21–5226(b) legally prohibited the self-defense instruction because Miles “initially provoke[d] the use of any force ... with intent to use such force as an excuse to inflict bodily harm upon the assailant.” However, there is no evidence Miles intended to provoke the men at WIBW to attack him so that he would then be justified in using force on them. Therefore, K.S.A.2013 Supp. 21–5226(b) does not apply.
K.S.A.2013 Supp. 21–5226(c)
Finally, the State argues K.S.A.2013 Supp. 21–5226(c) also prohibited the self-defense instruction. It states that Miles may not invoke the right to self-defense if he
“(c) otherwise initially provoke[d] the use of any force against [himself] unless:
(1) [he] ha[d] reasonable grounds to believe that [he was] in imminent danger of death or great bodily harm, and ha[d] exhausted every reasonable means to escape such danger other than the use of deadly force; or
(2) in good faith, [he] withdr[ew] from physical contact with the assailant and indicate[d] clearly to the assailant that [he] desire[d] to withdraw and terminate the use of such force, but the assailant continue[d] or resume[d] the use of such force.” K.S.A.2013 Supp. 21–5226(c).
Miles seems to claim he did not provoke Brokke, Palmer, and Lahnum's attacks since he did not make any moves towards them after hitting Janes. However, he clearly provoked Brokke, Palmer, and Lahnum's attacks by breaking into the building and then attacking their coworker in front of them. Because there is no evidence to support either of the two exceptions in the statute, we agree with the State that, pursuant to K.S.A.2013 Supp. 21–5226(c), a self-defense instruction was not legally appropriate. The district court did not err in denying Miles' request for a self-defense jury instruction.
Did the District Court Err by Admitting the Surveillance Video?
During the trial, the State admitted a surveillance DVD from May 23, 2012. Miles objected, claiming the State laid an insufficient foundation to admit the DVD through Janes. The district court overruled the objection and admitted the video.
In our review of issues pertaining to the admission or exclusion of evidence, we apply a “multistep analysis.” State v. Akins, 298 Kan. 592, 615, 315 P.3d 868 (2014). The first step is to determine relevance, which means the evidence should be probative and material. Probity is reviewed for abuse of discretion, and materiality is reviewed de novo. 298 Kan. at 615. The next step is to
“determine whether the district court applied the correct legal principles, and we review that decision de novo. The third step requires us to review how the district court applied the applicable rule or principle. [Citations omitted.] Depending on the rule being applied, this court reviews the district court's application of the pertinent rule either for an abuse of discretion or de novo because ‘[s]ome rules and principles grant the district court discretion, while others raise matters of law.’ [Citations omitted.]” 298 Kan. at 615.
The parties do not dispute that the surveillance video was probative and material.
The State admitted the video through Janes. Janes stated he watched the “raw video” footage from WIBW's surveillance cameras. He testified the video truly and accurately depicted what was recorded by the cameras on May 23. Miles' attorney asked to voir dire for foundation. During voir dire, Janes admitted he did not actually download the raw video footage from the surveillance system or watch while someone else downloaded it. Janes testified he edited the raw video that was put in the newscast, but the footage that was given to the police was not edited. Janes did not know who actually gave the video to the police. The State attempted to lay a further foundation, and Janes said that each section on the exhibit contained unedited footage. The defense attorney asked whether Janes could tell whether some pieces of the raw video may have been edited out. Janes said he could not.
Miles argues the proper foundation for a recording was outlined in State v. Williams, 235 Kan. 485, 491, 681 P.2d 660 (1984), which lists the seven elements required to lay the foundation for admission of an audiotape recording in most jurisdictions. However, another panel of this court noted that this seven-part test has been considered by other courts as “ ‘ “obsolete, even for sound recordings” ‘ “ and abandoned in favor of merely requiring a witness to testify the recordings are “ ‘ “reliable representations.” ‘ “ State v. Kemp, 30 Kan.App.2d 657, 662–63, 46 P.3d 31 (quoting Reynolds v. State, 539 So.2d 428, 430 [Ala.App.1988] ), rev. denied 274 Kan. 1116 (2002). The video presented was similar to photographs because it did not have any accompanying sound. Janes watched the unedited video multiple times, witnessed and participated in the events recorded on the video, and testified the video was a true and accurate representation of the events that occurred. There is no statute or case requiring the witness to be the person who actually downloaded the video from the cameras or burned it onto the DVD, as Miles argues. The district court did not abuse its discretion by admitting the video evidence.
Even if the district court had improperly admitted the video, the error was harmless. Janes, Brokke, Lahnum, Palmer, and Peppers all testified about the fight and the sequence of events that took place after Miles broke down the door and entered the building. Even if the video had not been played, the jury heard consistent evidence regarding the fight, and there is no reasonable possibility the verdict would have been different.
Did the District Court Err When it Increased Miles' Sentence Based on His Criminal History?
Miles argues that the use of his criminal history to calculate his guidelines sentence was unconstitutional because his past convictions were not proved in this case to a jury. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court has rejected this argument, and we reject it as well. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002).
Did the District Court Violate Miles' Right to a Jury Trial When it Sentenced Him to the Aggravated Number in the Sentencing Grid?
The district court sentenced Miles to the aggravated sentence for each offense, which Miles contends violated his right to a jury trial based on Cunningham v. California, 549 U.S. 270, 274–75, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). In that case, the United States Supreme Court held it unconstitutional to impose a sentence above the statutory maximum based on facts not proven to a jury. However, Miles recognizes his argument has already been rejected by the Kansas Supreme Court. See State v. Beaman, 295 Kan. 853, 870–71, 286 P.3d 876 (2012); State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008). As we are bound by our Supreme Court's rulings under State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P .3d 1027 (2011), rev. denied 294 Kan. 946 (2012), we reject Miles' argument.
Affirmed.