Opinion
110,730.
06-12-2015
STATE of Kansas, Appellee, v. Feysal NUR, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Sarah E. Washburn, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Sarah E. Washburn, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STANDRIDGE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Feysal Nur appeals following his convictions of two counts of failure to report an accident with an unattended vehicle and one count of burglary of a vehicle. He argues that the district court violated several of his statutory and constitutional rights by answering questions from the jury in writing rather than in his presence and by allowing the jury to view trial exhibits during deliberations. Nur also claims the evidence was insufficient to support his conviction for failure to report an accident with an unattended vehicle. Finding no error, we affirm.
Facts
In the early morning hours of November 1, 2012, Emporia Police Officer Marcial Hernandez, Jr., responded to a report of a stolen vehicle. Hernandez made contact with Maggie Danborg, who stated she had parked her fiancé's white Chevy Tahoe on the street and went inside a friend's home. When Danborg went outside approximately 2 hours later, she discovered the sport utility vehicle (SUV) was missing and contacted the police. Hernandez later spoke with Troy Amos, Danborg's fiancé. After confirming that the SUV was not in Amos' possession, Hernandez entered the SUV's information into the NCIC as a stolen vehicle.
Two days later, shortly after midnight on November 3, 2012, Hernandez responded to a report of a noninjury accident. After arriving at the scene, he observed a white Chevy Tahoe facing the wrong way on a one-way street that appeared to have collided with another vehicle. Hernandez spoke with Magan Dorsey, who reported that her Ford Explorer had been parked in the street and was hit by the white vehicle. Dorsey said she did not see the accident but had looked out the window of her house and noticed that her Explorer had been hit on the left rear door. Dorsey did not know who had been driving the Tahoe, as no one had contacted her to let her know what had happened. Hernandez ran the Tahoe's license plate and vehicle identification number through dispatch and discovered it was the same vehicle Danborg had reported stolen 2 days before.
Around this same time on November 3, 2012, Officer Joshua Miller responded to a hit-and-run accident reported by Melissa Nelson and her fiancé, Azim Williams. The couple advised Miller that a black male they knew as “Abar” and “African Man” had driven to their house in a white Chevy Tahoe. Nelson and Williams had never seen Abar driving the Tahoe before and knew that it did not belong to him. Nelson heard Abar and Williams arguing on the front porch and went outside. Williams told Abar to leave; Abar then got into the Tahoe, drove it into the bumper of the couple's Chevy Blazer that was parked in the driveway, and drove away. Nelson and Williams observed the incident from the porch, which was right next to the driveway. Based on the couple's description of the man, Miller showed them a picture of Nur. Both Nelson and Williams positively identified the man in the picture as the individual who was responsible for damaging the Blazer. Miller had heard the report of the nearby accident involving Dorsey's vehicle and, thinking the two incidents might be related, took Nelson to Dorsey's address. There, Nelson identified the white Tahoe as the same one that had hit the Blazer.
Amos later identified the Tahoe as his and noted dents and scrapes on the SUV that had not previously existed. Amos also reported that certain items were missing from inside the SUV, including a car seat and an iPod.
Nur subsequently was charged with one count of theft, two counts of failure to report an accident with an unattended vehicle, and one count of burglary of a vehicle. A jury convicted Nur of both counts of failure to report an accident and burglary of a vehicle. The jury failed to reach a verdict on the theft charge, and the State later dismissed this charge. The district court sentenced Nur to 12 months' probation for burglary of a vehicle and to concurrent 30–day jail terms for each of the failure to report an accident charges. Nur timely appeals.
Analysis
Nur raises the following issues on appeal: (1) the district court violated his constitutional and statutory rights by answering questions from the jury in writing rather than in his presence in open court; (2) the district court violated his constitutional and statutory rights by allowing the jury to view trial exhibits during deliberations; and (3) the evidence is insufficient to support one of his convictions for failure to report an accident with an unattended vehicle. Each of these allegations is addressed in turn.
Jury questions
Nur challenges the procedure the district court used to answer three questions asked by the jury during deliberations. He contends that rather than providing written answers to the jury, the court should have instead read its answers to the jury in his presence in open court and the court's decision to provide written answers violated several of his constitutional and statutory rights. Nur's arguments raise an issue of law over which this court exercises unlimited review. State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014).
During deliberations, the jury forwarded three written questions to the district court, which the court discussed with counsel, in Nur's presence, before formulating written answers that were then returned to the jury by the bailiff. The questions and answers were as follows:
• Question 1: “ ‘Counts 1 and 4 state that the alleged theft and burglary occurred “on or about the 1st day of November, 2012,” does the word “about” extend to November 3 or is it restricted to just November 1?’ “
Response: “ ‘[A]bou't [is defined] as ‘near in time.’ “
• Question 2(a): “ ‘Refer to Count 1.2. Does the statement, “The defendant obtained or exerted unauthorized control over property” only apply to November 1 ... of Point 5 [the date the act is alleged to have occurred]?’ “ Question 2(b): “ ‘Could possession of stolen property on November 3 be evidence of the theft on November 1?’ “
Response: “ ‘It is appropriate for you to draw inferences from the evidence presented in court.’ “
• Question 3: “ ‘Could the jury have a copy of the legal definitions of theft, burglary, and possession of stolen goods as used in Lyon County?’ “
Response: “ ‘Please refer to Instructions No. 7 and 12 for the definitions requested.’ “
The record reflects that each of the questions posed by the jury was read and discussed in open court with Nur and defense counsel present. Nevertheless, Nur asserts that the district court's written answers violated his constitutional and statutory rights to be present at every critical stage of his trial and his constitutional rights to have an impartial judge present at his trial and his right to a public trial. He does not take issue with the court's substantive answers to the jury's questions but argues that he should have been present when the court actually communicated the answers to the jury under the Sixth Amendment to the United States Constitution and K.S.A. 22–3420(3).
Notably, Nur's argument that the district court violated the statutory requirements of K.S.A. 22–3420(3) is undercut by an amendment made to that statute in 2014. See L.2014, ch. 102, sec. 7. Although the statute was amended after Nur's trial, the legislature specifically provided that the amendments “establish a procedural rule, and as such shall be construed and applied retroactively.” K.S.A.2014 Supp. 22–3420(f). Under the amendments to K.S.A. 22–3420, the court may respond to jury questions either “in open court or in writing. ” (Emphasis added.) K.S.A.2014 Supp. 22–3420(d). Accordingly, the district court did not violate Nur's statutory rights in responding to the jury's questions.
The statutory changes, however, do not affect Nur's constitutional arguments—that the district court violated his right to be present, his right to have an impartial judge present at his trial, and his right to a public trial.
Right to be present
The Kansas Supreme Court recently considered a court's written answer to a jury question in Verser, 299 Kan. at 787–90. The court first noted that a defendant can argue for the first time on appeal that a written response to a jury question violated his or her right to be present because the right to be present is personal to the defendant and cannot be waived by counsel's failure to object at trial. The court then held that jury questions about the law or evidence in the case must be answered in open court (unless the defendant is voluntarily absent) and that a written answer violates the defendant's right to be present under the Sixth Amendment. 299 Kan. at 787–88. Thus, under Verser, the way the court's answers were delivered to the jury in Nur's case violated his constitutional right to be present at every critical stage of his trial even though he was present when the court discussed the jury's questions with the attorneys and decided on the answers to the questions.
The State contends, however, that the district court's error was harmless and does not require reversal of Nur's convictions. The federal constitutional harmless error standard applies to violations of federal constitutional rights. Verser, 299 Kan. at 789. Under this standard, the written answers constituted harmless error if the State proves beyond a reasonable doubt that they did not affect the outcome of the trial in light of the entire record—that there is “ ‘no reasonable possibility that [they] contributed to the verdict.’ “ 299 Kan. at 789 (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011], cert. denied 132 S.Ct. 1594 [2012] ). Appellate courts apply four factors to determine whether a judge's written answer is harmless under the constitutional standard:
“ ‘(1) the overall strength of the prosecution's case; (2) whether an objection was lodged; (3) whether the ex parte communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error.’ [Citation omitted.]” Verser, 299 Kan. at 789–90.
See State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 (1998) (setting out the four factors for considering whether a court's communication with the jury outside the presence of the defendant is harmless error).
The factors support a conclusion that the error here was harmless. Under the first factor, the State's evidence against Nur was substantial. See State v. Gleason, 299 Kan. 1127, 1183, 329 P.3d 1102 (2014), cert. granted 135 S.Ct. 1698 (2015). Nelson and Williams testified that Nur was driving a white Chevy Tahoe 2 days after that same vehicle was reported stolen. Nelson and Williams further testified that they saw Nur hit their Blazer with the Tahoe and drive away. Nelson later identified the white Tahoe as the same one that was involved in the accident with Dorsey's Explorer.
Under the second factor, Nur did not object to the written answers at trial. See Gleason, 299 Kan. at 1183 (defendant's failure to object to written answer suggests harmless error). In fact, Nur's counsel discussed the final answers with the district court and opposing counsel and approved these answers.
Under the third factor, the answers the court gave were innocuous and insignificant. See Verser, 299 Kan. at 789–90 (providing that a nonsubstantive answer to a jury question—that material the jury had asked to review had not been admitted into evidence—favored a harmless error finding); State v. Carter, No. 109,966, 2014 WL 3907095, at *4 (Kan.App.2014) (unpublished opinion) (written answer that rephrased a jury instruction favored a harmless error finding), petition for rev. filed September 8, 2014. The first jury question concerned whether the jury instruction language “on or about the 1st day of November 2012” was restricted to November 1 or whether it could extend to November 3. Because the exact date of the crimes was not an essential element of the offense and because Nur never claimed prejudice or confusion regarding the date, the jury's question and the district court's response—defining “about” as “near in time”—should be viewed as innocuous. See State v. Colston, 290 Kan. 952, 963, 235 P.3d 1234 (2010) (“[W]here a defendant is not misled or prejudiced in making his or her defense by the allegation of when the crime occurred, a conviction may properly follow upon sufficient proof that the crime was committed at any time within the period of the statute of limitations.”). The jury's second question also related to the timing of the crimes and asked whether the language “obtained or exerted unauthorized control over property” applied only to November 1 and whether possession of stolen property on November 3 could be evidence of the theft on November 1. The court's response provided no substantive information but simply advised the jury that it could “ ‘draw inferences from the evidence presented in court.’ “ The jury's third question requested legal definitions of certain crimes, and the district court merely directed the jury to follow the instructions it had already provided.
Under the fourth factor, the record on appeal does not indicate that Nur pursued any posttrial remedies to correct the court's procedural error. See State v. Bowen, 299 Kan. 339, 358, 323 P.3d 853 (2014) (district court's failure to answer jury question in defendant's presence was harmless error in part because defendant pursued no posttrial remedies).
Having considered the four McGinnes factors under the facts presented here, we conclude that any error was harmless. The State's case against Nur was strong, he failed to object to the written answers at trial, the jury's questions and the court's answers were innocuous and insignificant, and Nur did not address the procedural error with his posttrial motions, preventing the district court and this court from fully exploring any actual harm. Accordingly, we find no reasonable possibility that the district court's failure to read the responses to the jury's questions in Nur's presence in open court impacted the jury's verdict.
Rights to an impartial judge and a public trial
Nur separately argues that the court's written responses to the jury's questions also constituted structural error (not subject to the harmless error analysis) because they violated his rights to an impartial judge and a public trial, which are guaranteed by the Sixth Amendment and § 10 of the Kansas Constitution Bill of Rights. See Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (violation of a defendant's right to an impartial judge is never harmless error); Waller v. Georgia, 467 U.S. 39, 46–50, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of right to a public trial is structural error); Boldridge v. State, 289 Kan. 618, 627–28, 215 P.3d 585 (2009). Nur contends that neither the judge nor the public were present at a critical stage of the trial—when the jury received the answers to its questions.
But other panels of our court have consistently found under similar circumstances that a defendant's fundamental rights to a fair trial and to an impartial judge are not violated by a court's written answer to a jury's question. See, e.g., State v. Womelsdorf, 47 Kan.App.2d 307, 323–25, 274 P.3d 662 (2012), rev. denied 297 Kan. 1256 (2013); State v. Maberry, No. 110,088, 2014 WL 2871370, at *5 (Kan.App.2014) (unpublished opinion), petition for rev. placed on hold May 12, 2015. Highly summarized, these cases reasoned that when, as here, a district court delivers a short written answer to a jury's question that provides no additional information, there is no violation of the right to an impartial judge. Nor does a district court's answer to a jury's question in writing violate the right to a public trial when, as here, the defendant never specifically disputes his or her presence when the court and counsel discussed in open court how to respond to the jury question. And nothing about the court's response, which becomes a part of the record, is hidden from the public. Womelsdorf, 47 Kan.App.2d at 324–25 ; Maberry, 2014 WL 2871370, at *5.
Like in Womelsdorf, the court's written responses in Nur's case were short and did not provide the jury with any new substantive information outside the presence of an impartial judge. Furthermore, the court read the jury questions in open court, Nur's counsel had the opportunity to suggest possible responses to the questions, and the court's written responses became available to the public as part of the court file. Accordingly, we join the other panels of this court that have adopted the Womelsdorf analysis and rejected the notion that the jury's review of a written answer in the jury room without the judge present violates the defendant's rights to an impartial judge and a public trial. See, e.g., State v. Ramirez, 50 Kan.App.2d 922, 933–34, 334 P.3d 324 (2014), petition for rev. filed October 27, 2014; Maberry, 2014 WL 2871370, at *5 ; State v. Owens, No. 109,369, 2014 WL 1612457, at *4–5 (Kan.App.2014) (unpublished opinion), petition for rev. placed on hold March 12, 2015; State v. Armstead, No. 108,533, 2014 WL 349561, at *11 (Kan.App.2014) (unpublished opinion), petition for rev. placed on hold January 12, 2015; State v. Wells, No. 108,165, 2013 WL 3455798, at *9–10 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. –––– (2014); State v. Bolze–Sann, No. 105,297, 2012 WL 3135701, at *6–7 (Kan.App.2012) (unpublished opinion), rev. granted 298 Kan. –––– (2013).
Exhibits
Nur next argues that the district court violated his constitutional and statutory rights to be present at all critical stages of the trial and his rights to have the public and the trial judge present at trial when it allowed the jury to view trial exhibits outside his presence. These arguments raise an issue of law over which this court exercises unlimited review. See Verser, 299 Kan. at 787.
At trial, the district court admitted several photographs from the State into evidence. Prior to deliberations, the court informed the jury that it would receive the jury instructions, verdict forms, “as well as the exhibits.” Although Nur did not object to the district court's release of the exhibits to the jury, this court may review his argument, raised for the first time on appeal, that it violated his right to be present. See Verser, 299 Kan. at 788 (the right to be present is personal and cannot be waived by counsel's failure to object at trial).
Again, Nur's statutory argument is controlled by the 2014 amendments to K.S.A. 22–3420, which are applied retroactively. See K.S.A.2014 Supp. 22–3420(f). The statute now provides: “In the court's discretion, upon the jury's retiring for deliberation, the jury may take any admitted exhibits into the jury room, where they may review them without further permission from the court.” K.S.A.2014 Supp. 22–3420(c). Thus, Nur's claim of statutory error fails.
As support for his constitutional claim that a defendant has the right to be present when evidence is exhibited to the jury—even after the jury has begun deliberations—Nur relies on State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). In Herbel, the defendant was on trial for sex crimes against a child. He had given a videotaped interview to law enforcement officers that contained highly incriminating admissions. He also provided a similar written statement. The prosecution played the videotape during its case against the defendant, and both the videotape and the written statement were admitted into evidence. During deliberations, the jurors wanted to review parts of the videotaped interview. The district court met with the jurors in the courtroom and asked the presiding juror to describe what they wanted to look at. Those portions of the interview were replayed for the jurors. The district court then asked the presiding juror if the replay was sufficient or if there were other portions of the interview they wished to see. The presiding juror indicated the jurors had seen what they needed. The jury returned with a split verdict about 25 minutes later convicting the defendant of one count of rape and one count of aggravated indecent liberties with a child while acquitting him of a second count of rape. 296 Kan. at 1106–07.
On appeal, the defendant challenged the district court's handling of the jurors' request to view portions of the videotaped statement. At the outset of its legal analysis, the Kansas Supreme Court noted that the record was silent as to whether the defendant or his counsel was present during the district court's communication with the jurors about the videotaped interview and the replay of the requested portions of the interview. 296 Kan. at 1107. Without an affirmative statement on the record that the defendant was present or some equivalent indication, the court concluded the defendant was absent, determined the interaction between the court and the jury to be a critical stage in the proceedings, and found the interaction tantamount to constitutional error. 296 Kan. at 1109–10. Applying the constitutional harmless error analysis, however, the court found the error harmless beyond a reasonable doubt. 296 Kan. at 1115.
Nur argues that because the exhibits were released to the jury during deliberations, the evidence here, like in Herbel, was exhibited to the jury outside of his presence. The analysis in Herbel, however, is readily distinguishable because the court there specifically analyzed the constitutional violation based on the district court's communication with the jurors, not on the actual display of the videotape outside of the defendant's presence. 296 Kan. at 1109. Unlike Herbel, the record here does not show any communication between the district court and the deliberating jurors outside Nur's presence and Nur does not allege any such communication occurred. Nur's only complaint is that he was not present when the photographic evidence was exhibited to the jury. But the photographs at issue already had been admitted into evidence without objection from Nur. And all meaningful communication about the photographs occurred in open court in Nur's presence. Under these circumstances, the jurors' review of trial exhibits was not a critical stage of the proceeding at which Nur had a constitutional right to be present personally or through counsel. See State v. Fenton, 228 Kan. 658, 667, 620 P.2d 813 (1980) (“Once a case is submitted to the jury for deliberations, the jury is ordinarily given the exhibits to take into the jury room where the jurors can examine the exhibits as many times as they desire.”).
Nur argues that allowing the jurors to take the exhibits to the jury room also constituted structural error because it violated his rights to an impartial judge and a public trial, which are guaranteed by the Sixth Amendment and § 10 of the Kansas Constitution Bill of Rights. These claims are without merit. Nur's constitutional right to an impartial judge was not violated because no communication or interaction occurred between the district court and the deliberating jury outside of Nur's presence. Additionally, there was no violation of Nur's constitutional right to a public trial. All information and communication surrounding the photographic exhibits was imparted in open court. Although the jurors were permitted to examine the exhibits in the jury room, jury deliberations are never open to the public.
Simply put, Nur has not presented this court with any valid bases for holding that the release of the exhibits to the jury during deliberations constituted a violation of his constitutional rights.
Sufficiency of the evidence
Finally, Nur contends the evidence was insufficient to support his conviction for failure to report an accident with an unattended vehicle in count 3 because the evidence showed that the vehicle was not unattended.
An appellate court's standard of review for a challenge to the sufficiency of the evidence in a criminal case is
“whether, after reviewing all the evidence in a light most favorable to the prosecution, the reviewing court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility.”State v. Lloyd, 299 Kan. 620, Syl. ¶ 3, 325 P.3d 1122 (2014).
Nur's sufficiency argument also requires this court to interpret the statutory requirements in K.S.A.2014 Supp. 8–1605. Interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S.Ct. 91 (2014). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). This intent should be ascertained first through the statute's language while giving common words their ordinary meaning. State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).
Nur was charged in count 3 with failure to report an accident involving an unattended vehicle, contrary to K.S.A. 8–1605. This statute provides, in relevant part:
“The driver of any vehicle which collides with or is involved in an accident with any vehicle or other property which is unattended, resulting in any damage to such other vehicle or property, shall immediately stop and shall then and there either locate and notify the operator or owner of such vehicle or other property of such driver's name, address and the registration number of the vehicle such driver was driving, or shall attach securely in a conspicuous place in or on such vehicle or other property a written notice giving such driver's name, address and the registration number of the vehicle such driver was driving, and without unnecessary delay shall notify the nearest office of a duly authorized police authority.” K.S.A.2014 Supp. 8–1605(a).
At trial, the jury was instructed that in order to find Nur guilty of count 3, the State was required to prove:
“1. That the defendant was involved in an accident causing damage to an unattended vehicle or other property, to wit: a 1991 Chevrolet Blazer belonging to owner, to wit: Melissa Kimberly Nelson[;]
“2. That the defendant failed to provide his name, address and registration number of the vehicle he was driving to the owner of said unattended vehicle or other property, by leaving written notice in a conspicuous location;
“3. That the defendant failed to notify the nearest duly authorized police authority of involvement in an accident; and
“4. That this act occurred on or about the 3rd day of November, 2012, in Lyon County, Kansas.”
Asserting that “ ‘[u]nattended’ “ is not synonymous with “ ‘unoccupied,’ “ Nur suggests that a vehicle may only be considered unattended when its owner is not present or nearby. He argues that the evidence presented at trial was insufficient to show that the accident caused damage to an unattended vehicle because Nelson and Williams were both near the Blazer when the accident occurred and, therefore, Nur could only be charged with failure to report an accident with an attended vehicle. See K.S.A.2014 Supp. 8–1602 ; K.S.A.2014 Supp. 8–1604 (setting forth duties of driver involved in accident with attended vehicle).
The term “unattended” is defined as “unaccompanied.” Webster's Third New International Dictionary 2482 (3d ed.1993). Contrary to Nur's argument, the plain and unambiguous language of the statute does not support his argument that K.S.A.2014 Supp. 8–1605(a) only applies to situations where the operator or owner of a vehicle is nowhere near the vehicle or is otherwise not a witness to the accident. Although the statute instructs the driver upon damaging an unattended vehicle to “attach securely in a conspicuous place in or on such vehicle” the driver's name, address, and vehicle registration number, it also contemplates that the operator or owner of the unattended vehicle may instead “then and there” be “locate[d] and notif[ied].” K.S.A.2014 Supp. 8–1605(a).
Thus, the degree of distance creating an unattended vehicle involved a question of fact for the jury. Nelson and Williams both testified that the Blazer was parked in the driveway, “right next” to the front porch where they were standing when Nur drove into the Blazer. Photographs of the Blazer parked in the driveway and the porch were admitted into evidence. Both parties argued during closing argument whether the Blazer was unattended, and the jury was instructed that it had the right to use “common knowledge and experience” with respect to witness testimony. Given the fact that Nelson and Williams were not inside the Blazer when it was struck by Nur but were instead standing on the porch, the jury could reasonably infer that the Blazer was unattended. Viewed in the light most favorable to the State, the evidence here is sufficient to support a finding that the vehicle was unattended. As a result, we affirm Nur's conviction.
Affirmed.