Opinion
No. 105,071.
2013-06-14
STATE of Kansas, Appellee, v. Charles Roger PARKER, Appellant.
Appeal from Finney District Court; Michael L. Quint, Judge. Douglas M. Crotty, of Crotty Law Office, P. A., of Garden City, for appellant. Brian R. Sherwood, deputy county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Michael L. Quint, Judge.
Douglas M. Crotty, of Crotty Law Office, P. A., of Garden City, for appellant. Brian R. Sherwood, deputy county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Charles Parker of possession of hydrocodone with intent to distribute and two counts of distribution of marijuana. Parker asks us to overturn his convictions based on conduct during voir dire. He specifically argues: (1) The prosecutor committed misconduct when explaining the difference between proof of extraneous facts and elements of the crime; (2) the trial court committed misconduct by wrongly stating that in a criminal case “there is a standard of care”; (3) the cumulative effect of these alleged misstatements denied him a fair trial; and (4) defense counsel was ineffective during voir dire.
Parker does not challenge the events that led to his convictions-two controlled drug buys that occurred on August 5, 2009, and August 10, 2009. The Finney County Drug Task Force arranged for a cooperating individual (CI) to purchase drugs from Parker. During the first buy, while under surveillance by task force members, Parker sold marijuana and hydrocodone pills to the CI. An undercover officer joined the CI for the second buy, at which time Parker sold the officer marijuana. Parker was subsequently charged with one count of possession with intent to distribute hydrocodone and two counts of distribution of marijuana. A jury convicted Parker as charged. On July 29, 2010, the sentencing court imposed a controlling prison term of 55 months.
Parker appeals.
Parker first argues the prosecutor committed misconduct during voir dire by making statements and questioning potential juror members in a way that was calculated to reduce the State's burden of proof.
We review an allegation of prosecutorial misconduct, including alleged misconduct occurring during voir dire, whether or not a contemporaneous objection was made, using a two-step analysis. An appellate court is required to determine (1) whether the prosecutor's comments were outside the wide latitude allowed, and (2) if so, whether the comments constitute plain error—whether the statements likely prejudiced the jury against the defendant and denied him or her a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012); see State v. Simmons, 292 Kan. 406, 408–12, 254 P.3d 97 (2011).
Parker complains of the following exchange that occurred between the prosecutor and potential jury members.
“[PROSECUTOR:] [S.H.], I'll ask you a question.... We are required to prove the elements of a crime. There is maybe one through four. You will be instructed on that. Would—and you'll listen to the facts. Sometimes witnesses—I'm going to throw out another example. They see a red car, but another witness says, well, it's a blue car. But they can both identify the defendant. That's a fact question. The fact that we have two or three people that can identify one person and maybe they—they're not the same on the color or maybe something of that sort, do you understand that that's just a fact; that's not an element to be proven?
“PROSPECTIVE JUROR [S.H.]: Yes, sir.
“[PROSECUTOR]: Okay. Would you listen to the facts, but also look at the elements and decide whether or not ... we've proven our case beyond a reasonable doubt on the elements of the crime?
“PROSPECTIVE JUROR [S.H.]: Yes, sir.
“[PROSECUTOR]: In other words, we're not required to prove each and every fact beyond a reasonable doubt; would you agree with that?
“PROSPECTIVE JUROR [S.H.]: Yes, sir.
“[PROSECUTOR]: Okay. All right. Thank you.
“[P.H.], same question. You're not going to require us to prove each and every fact that's presented beyond a reasonable doubt?
“PROSPECTIVE JUROR [P.H.]: No.
“[PROSECUTOR]: You'll listen to the whole case and weigh it as a whole?
“PROSPECTIVE JUROR [P.H.]: Yes.
“[PROSECUTOR]: Okay. Thank you very much.
“[L.L.-A.], same question. You're not going to require the State to do something that they are not required to do, is prove each and every fact beyond a reasonable doubt, are you?
“PROSPECTIVE JUROR [L.L.-A.]: No, sir.
“[PROSECUTOR]: You'll listen to the facts, you'll consider the facts, but you'll take the big picture of what happened here?
“PROSPECTIVE JUROR [L.L.-A.]: Correct.
“[PROSECUTOR]: Okay. Do you have any problem with that concept?
“PROSPECTIVE JUROR [L.L.-A.]: No.
“[PROSECUTOR]: Okay. And in—thank you. Thank you very much.
“That general question to anyone. Does anyone have a belief that the State has to prove each and every fact beyond a reasonable doubt, not the—not the elements? Does somebody think that we should prove this case beyond a shadow of a doubt or some kind of higher standard besides beyond a reasonable doubt?
“Nobody answers.
“Okay. You understand that you have elements of a crime. You consider the facts to decide, and if we've proven those elements, you could decide and make a verdict or come up with a verdict, whether it's guilty or not guilty? Does anyone have any problem with that?
“Okay. Thank you. No one answers to that, for the record.”
This issue could be considered waived. Parker correctly identifies the two-step analysis to be applied to claims of prosecutorial misconduct but then fails to consider this standard or offer more than a conclusory argument. His argument consists of claiming the prosecutor blurred the distinction between proof of all the elements and not being required to prove minor or subsidiary facts and the remarks regarding the State's burden of proof, especially when considered in light of the next issue concerning the trial court's comments, “goes beyond the pale and deprived the defendant of fundamental fairness under the Fifth and Fourteenth Amendments to the U.S. Constitution.”
“To preserve an issue for appellate review, a party must do more than incidentally raise the issue in an appellate brief. The party must present an argument and support that argument with pertinent authority or show why the argument is sound despite a lack of supporting authority or in the face of contrary authority. Otherwise, the argument will be deemed abandoned.' “ State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010) (quoting State v. Gomez, 290 Kan. 858, Syl. ¶ 8, 235 P.3d 1203 [2010] ).
See also State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (an issue not briefed by the appellant is deemed waived and abandoned).
However, should there be further review we will deal with the merits of the case.
The State clearly has the burden of proving all the elements of the offenses charged and persuade the jury beyond a reasonable doubt of the facts necessary to establish each of those elements. See State v. Stieben, 292 Kan. 533, 537, 256 P.3d 796 (2011). Parker, however, does not argue the prosecutor misstated the law. He presumably believes the prosecutor downplayed the State's burden to prove each element of the offense beyond a reasonable doubt. Although the prosecutor might have expressed it better, when viewing the prosecutor's remarks as a whole, it is apparent the prosecutor was asking the jury to differentiate between immaterial or extraneous facts and the elements of the crime, which it was required to prove beyond a reasonable doubt. The remarks were not outside the wide latitude allowed.
If we were to consider the prosecutor's voir dire comments to be misconduct, the next consideration would be whether the misconduct was so prejudicial that it denied the defendant a fair trial. The three factors to be considered here are: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).
The State, as the party who benefits from the misconduct, bears the burden to establish the third factor and show beyond a reasonable doubt that the error did not affect the defendant's substantial rights; in other words, that there is no reasonable possibility the error affected the verdict. The third factor cannot override the first two factors unless the appellate court can say the constitutional error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987 (1967), has been met. State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012).
The prosecutor's comments pass the harmlessness test. The voir dire comments were not gross and flagrant—the comments were not repeated and gave no appearance of being calculated to violate a well-established rule. There was no indication of ill will. Furthermore, there was no reasonable possibility the misconduct affected the verdict. The trial court instructed the jury on the burden of proof and reasonable doubt, and the jury is presumed to have followed the instructions. See State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012) (appellate court presumes the jury follows the instructions).
Finally, the evidence against Parker was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.
Parker next argues the trial court's use of the phrase “standard of care” during introductory statements compounded the prosecutor's misconduct because “[j]urors who have served in civil trials have no doubt been aware that that phrase carried with it a ‘reasonableness' criteria whereas, in the criminal context the criteria is exactly the opposite ... i.e. beyond a reasonable doubt.”
Appellate courts have unlimited review over allegations of judicial misconduct. See State v. Kirkpatrick, 286 Kan. 329, 348, 184 P.3d 247 (2008). The party alleging judicial misconduct bears the burden of showing prejudice. 286 Kan. at 348.
“Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. Mere possibility of prejudice from a judge's remark is not sufficient to overturn a verdict or judgment.” [Citations omitted.] State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002).
During introductory statements to the potential jury pool, the trial court stated:
“So that's the kind of case that we're dealing with. Whenever they're talking about a criminal case, there is a standard of care, a standard burden for the State of Kansas that they have to be able to prove from the evidence presented that the defendant is guilty of each and every offense beyond a reasonable doubt. And so I'm sure the attorneys will be visiting about what that means to you and whether or not that is a problem for you in any way.”
As in the first issue, Parker has failed to adequately brief this issue, and we could consider the issue waived. Regardless, the State correctly notes that this was apparently “no more than an inadvertent slip of the tongue,” and the trial court immediately corrected the statement in the same sentence. Furthermore, it was unlikely the potential jurors were aware the phrase “standard of care” as used in civil cases had any different criteria than the burden of proof in a criminal case, regardless of whether or not they had served on a civil trial. Moreover, Parker singles out this phrase without considering the entire content of the trial court's remarks. The trial court plainly told the potential juror members that the State had the burden to prove the defendant guilty of each charge beyond a reasonable doubt. This issue has no merit.
Parker further argues the cumulative effect of the prosecutor's and trial court's misconduct deprived him of a fair trial. To determine whether there has been cumulative error, an appellate court reviews “ ‘whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial.’ “ State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010). A single error cannot constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010). Because neither the prosecutor nor the trial court committed misconduct, Parker's claim based on cumulative error fails.
For Parker's last issue, he argues his counsel was ineffective for failing to strike four jurors for cause. The State correctly notes that Parker did not raise this claim before the trial court and, generally, the appellate courts should not consider allegations of ineffective assistance of counsel for the first time on appeal. Again we will review the merits in case there is further review.
The Kansas Supreme Court has explained that normally an ineffective assistance of counsel claim is not suitable for resolution on direct appeal in part because the trial judge who presided over the proceedings below is usually in the best position to judge the merits of these claims. We have three options under the circumstances: (1) decline to rule on the merits of the claim requiring Parker to raise any allegation of ineffective assistance of counsel in a K.S.A. 60–1507 motion; (2) rule on the merits because this is one of the “extremely rare” and “extraordinary” occasion that the record is sufficient to analyze the claim; or (3) remand the case for a Van Cleave hearing “so that facts relevant to determination of the legal issue may be developed and an evidentiary record established.” See Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009); State v. Van Cleave, 239 Kan. 117, 119–21, 716 P.2d 580 (1986).
Because Parker does not acknowledge he is raising an allegation of ineffective assistance of counsel for the first time on appeal, he neither asks for a remand nor offers any argument that the record is sufficient to analyze his claim. Parker perhaps touches on this problem by asserting defense council's action in “[w]aiving the [jury] panel for cause constitutes a clear error, reviewable on appeal.” But the record just as clearly shows the jury that ultimately heard the case was impartial. The record is sufficient to analyze this claim.
Parker's complaint focuses on four jurors. He specifically complains counsel failed to: (1) explore with juror No. 1, whether her uncle, who worked undercover on drug cases for the KBI, ever discussed any of his cases with her and to ask the trial court to strike her for cause when she stated she would find Parker guilty even if the State was unable to prove all the elements of the crime; (2) ask the trial court to strike for cause juror No. 11, because her son was a police officer in another state and she indicated that she would probably give an officer's testimony more credit and weight because of it; (3) ask the trial court to strike for cause juror No. 29, as well as juror No. 27, when they both answered they would probably vote guilty before the evidence was heard. Parker contends these actions were a result of counsel's inexperience and led to a denial of effective assistance of counsel.
This issue suffers from the same lack of argument that Parker provided on the first three issues. He fails to argue, let alone show, that a biased or prejudiced juror was selected or that he was unable to remove a questionable juror for lack of peremptory challenges.
“Prejudice cannot be established through the loss of a peremptory challenge alone. “ ‘[T]he loss of a peremptory challenge [does not] constitute [ ] a violation of the right to an impartial jury.’ “ State v. Crawford, 255 Kan. 47, 51–52, 872 P .2d 293 (1994) (quoting Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80,reh. denied487 U.S. 1250 [1988] ). Peremptory challenges are simply a means to achieve an impartial jury, and the true inquiry is whether the jury that ultimately sits is impartial. State v. Heath, 264 Kan. 557, Syl. ¶ 17, 957 P.2d 449 (1998).” State v. McCullough, 293 Kan. 970, 996, 270 P.3d 1142 (2012).
Parker's ineffective assistance of counsel claim has no merit. Defense counsel used peremptory challenges on each of the four jurors who indicated they could not be impartial. Consequently, the jury that ultimately heard the case indicated it could be impartial—voir dire served its purpose, and Parker cannot show prejudice.
Affirmed.