Opinion
No. 105,751.
2012-10-26
STATE of Kansas, Appellee, v. Robert S. PFEIFFER, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., MALONE and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Robert S. Pfeiffer appeals his convictions and sentences for aggravated burglary and theft. Pfeiffer claims: (1) The district court failed to fully investigate his request for new counsel before sentencing; (2) the eyewitness instruction was clearly erroneous; (3) the evidence was insufficient to convict him of aggravated burglary; and (4) his sentences were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We find no error in the district court's judgment.
The morning of March 23, 2010, Roy Leumann heard that Larry and Pam Hopkins' home had been burglarized. Leumann lives two houses from the Hopkins' house. Police officers, canvassing the neighboring houses that morning, stopped at Leumann's and asked if he had seen anything unusual. Leumann reported that he had heard noises in his backyard around 2–3 a.m. that morning. Upon investigation, Leumann observed a male in his backyard walking toward him. The individual told Leumann he was looking for his dog. The male was close enough that Leumann could smell alcohol on his breath. After the man left Leumann's backyard, Leumann went out front to make sure he had locked the doors to his vehicle parked in the driveway. He saw the male again, walking in front of his house.
Leumann recalled the male was wearing jeans that were faded and torn or cut off at the bottom, white sneakers, a dark coat, and gloves. He described the male as thick, with longer hair. Later, a detective asked Leumann if he could identify the male he saw in his backyard from a photo array. Leumann pointed out a photograph of Pfeiffer and stated he thought it was a “good likeness” of the person he had seen the night before. In the courtroom, Leumann pointed out Pfeiffer as the man he saw wandering around his backyard and neighborhood.
Hopkins testified that two vehicles were parked in his garage the evening before the burglary—his wife's red Subaru and a Lincoln. A pickup truck was parked outside on the driveway behind the Lincoln. The Subaru keys had been left in the vehicle. The next morning, Hopkins woke to his wife hollering that the Subaru was gone. Also missing from the garage were cigarettes and a purple Scripto lighter.
The day after the burglary, Officer Mike Berry from the Wichita Police Department received a call to investigate a red vehicle parked with a person sleeping inside. The location of the suspicious vehicle was about a mile from the Hopkins' home. Berry recognized the red vehicle as the Subaru stolen from the Hopkins' garage. An individual was asleep in the driver's seat. Berry ordered the occupant out of the vehicle and patted him down. Berry recovered the Subaru ignition key and a purple lighter from the suspect's pant pocket. The suspect, Pfeiffer, was wearing white tennis shoes and blue jeans that were worn and torn on the bottom.
Pfeiffer denied being in the area of the Hopkins' home in the early morning hours of March 23. According to Pfeiffer, he had been drinking and hooked up with three other individuals, two men and a woman. One of the men asked Pfeiffer to drive him home because he was too intoxicated to drive. Pfeiffer drove the man's car and followed the other two individuals to a mobile home park. The group continued drinking. When Pfeiffer was ready to leave, no one was sober enough to drive him. Pfeiffer claimed the man gave Pfeiffer his keys and said to drive himself home and bring the car back the next day. Pfeiffer was unable to give any details that could verify his story.
Pfeiffer was charged with aggravated burglary and theft. A jury convicted Pfeiffer as charged. Prior to sentencing, Pfeiffer requested new court appointed counsel but the district court denied the request. At sentencing, the district court imposed a presumptive aggravated sentence of 55 months' imprisonment for the aggravated burglary conviction and 7 months' imprisonment for the felony theft conviction. Pfeiffer timely appealed.
Request for New Counsel
Pfeiffer first argues that the district court failed to adequately investigate his request for new counsel before sentencing, violating his Sixth Amendment right to counsel. The State argues that the district court's investigation was adequate.
“ ‘It is the task of the district judge to insure that a defendant's Sixth Amendment right to counsel is honored. [Citation omitted.]’ State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999).' Where a trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further.' Taylor, 266 Kan. at 979 (citing Wood v. Georgia, 450 U.S. 261, 272, 67 L.Ed.2d 220, 101 S.Ct. 1097 [1981] ). Likewise, ‘where the trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant's Sixth Amendment right to counsel is not violated.’ State v. Jenkins, 257 Kan. 1074, 1083–84, 898 P.2d 1121 (1995). ‘A trial court abuses its discretion if it fails to inquire further after becoming aware of a potential conflict between an attorney and client.’ State v. Carver, 32 Kan.App.2d 1070, 1078, 95 P.3d 104 (2004) (citing Taylor, 266 Kan. at 978).” State v. Vann, 280 Kan. 782, 789, 127 P.3d 307 (2006).
At Pfeiffer's sentencing hearing, defense counsel advised the district court that Pfeiffer desired new counsel. The district court asked Pfeiffer the basis for his request, and the following exchange occurred:
“THE DEFENDANT: Umm, just basically a new lawyer. And a motion for discovery, to—for another trial, sir.
“THE COURT: Well, the discovery goes on prior to the trial. You've already had discovery in this case. We're at the posttrial stage of the proceeding now. So the jury trial's over, and now we're just up here for sentencing.
“And, as far as changing lawyers, you have to have a reason to disqualify your lawyer. You can hire any lawyer you want to. But, if you're wanting court-appointed counsel, then you're going to have to give a reason why this court-appointed lawyer should not be representing you and trade her for some other court-appointed lawyer.
“THE DEFENDANT: Well, I feel that I was, you know, done wrong; pretty much, I mean, through the whole—through the whole trial. I mean, the jury itself, I didn't even get to pick the jury. I know how the proceedings go. I mean, you know. I mean, it was just totally all wrong. It just wasn't, you know, wasn't going through like, normally, like it would, you know. I go. That's why I'm asking for a new trial. I mean, I was, you know, wrongly accused, too, you know. I go. I mean, there ain't, too much I can say about it really being, you know, a new thing, you know. So I go. You know.
“THE COURT: Well, that really isn't ground for a new lawyer, because
“THE DEFENDANT: Well
“THE COURT:—your lawyer
“THE DEFENDANT: I mean, I'm not putting it in your hands as your judgment to, you know, to specify that she's not qualified for the situation. I honestly believe she—she ain't qualified to even represent me as, you know—as, you know, with her job duty or whatever it may be, you know. I go. You know, that's—I mean, the whole, the whole, the whole situation. I mean, you know. I go. I wanna do it again, you know. I go.
“THE COURT: Well, just wanting to have a new trial isn't a reason to give a new trial. There has to be some legal grounds for it. And just because you want a new lawyer, that doesn't mean that there's going to be
“THE DEFENDANT: No it isn't that. Basically, everything I've just stated. I mean, you know. I mean, I ain't trying to stretch it out, you know. And, you know, and put it in any other form of understanding of it, you know. I go. I go. That's pretty much how it is, you know. I go. I mean, I couldn't really say any more than that, you know.
“THE COURT: Well, you haven't cited grounds for discharge of your counsel, so I'm gonna overrule the request. So defense counsel may go ahead and proceed with arguments on your motions.”
The record indicates that Pfeiffer never articulated any “conflict” with his court appointed counsel. Instead, Pfeiffer merely expressed vague dissatisfaction with the manner in which his counsel had handled the trial. The district court gave Pfeiffer an opportunity to explain why he wanted new counsel. There is no indication that more pointed questioning of Pfeiffer would have yielded more convincing grounds for new counsel. Under the circumstances, we conclude that the district court made an adequate inquiry and did not abuse its discretion by refusing to appoint new counsel. See State v. Sappington, 285 Kan. 176, 196, 169 P.3d 1107 (2007) (“A district court's refusal to appoint new counsel is reviewed under an abuse of discretion standard, which asks whether any reasonable person would take the view adopted by the district court.”).
Eyewitness Instruction
Pfeiffer's second issue concerns jury instruction No. 11, eyewitness identification using PIK Crim.3d 52.20. Pfeiffer contends the eyewitness factors set out in PIK Crim.3d 52.20, specifically the degree of certainty factor, should be considered error. He cites caselaw that, at the time Pfeiffer filed his brief, had yet to settle this question. See State v. Reid, 286 Kan. 494, 514–18, 186 P.3d 713 (2008); State v. Trammell, 278 Kan. 265, 269–71, 92 P.3d 1101 (2004); State v. Hunt, 275 Kan. 811, 815–21, 69 P.3d 571 (2003).
The State acknowledges the Kansas Supreme Court has now settled the issue—jurors should not be instructed to consider the degree of certainty factor when weighing the reliability of eyewitness identification. See State v. Mitchell, 294 Kan. 469, 481, 275 P .3d 905 (2012); State v. Anderson, 294 Kan. 450, 276 P.3d 200 (2012).
Pfeiffer did not object to instruction No. 11 at trial. No party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous. K.S.A. 22–3414(3). “ ‘An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.’ (Emphasis added.) State v. Washington, 293 Kan. 732, 740, 268 P.3d 475 (2012).” State v. Marshall, 294 Kan. 850, 867,281 P.3d 1112(2012).
Under Mitchell and Anderson, and most recently, Marshall, it is established that a trial court commits error by including the degree of certainty factor when instructing a jury on eyewitness identification. Nevertheless, the Supreme Court in Marshall determined the same analysis set out in Mitchell and Anderson would apply to determine whether the error affected the verdict. The Supreme Court explained that the initial inquiry consisted of two questions: “(1) Was the identification crucial to the State's case? and (2) Was there an opinion of certainty stated?” If the answer to either question is “no,” then the instructional error did not affect the jury and the analysis can end. Marshall, 294 Kan. at 867–68.
In Pfeiffer's case, the answer to the initial inquiry is not a straightforward “no.” Leumann's identification of Pfeiffer placed him in the vicinity of Hopkins' house during the time frame of the burglary, an important piece of the State's evidence but, perhaps, not crucial. The fact that Pfeiffer was later found asleep in the Subaru about a mile from the burglary with the ignition key and a purple Scripto lighter in his pocket was likely as significant a piece of evidence, if not more significant, as Leumann's placement of Pfeiffer in the neighborhood the morning of the burglary.
Regarding the certainty of identification, Leumann testified that when the detective showed him the photo array, he identified “someone who I thought was a good likeness to the person I had seen the night before.” The State did not ask Leumann if he was certain of his identification of Pfeiffer as the man he saw in his backyard. But immediately after Leumann's testimony about the photo array, the State showed Leumann an exhibit consisting of a pair of men's jeans. When asked if he recognized the jeans, Leumann said he did because the jean bottoms were faded and cut off. He stated, “[T]hat's what it looked like.” The following exchange then occurred:
“Q. Okay. Compared to the person who was on your patio, would that compare to the person
“A. Yeah.
“Q.—and their jeans?
“A. I would say they were the same jeans.
“ Q. Can you say for certain this is the pair of jeans that you saw on that person?
“ A. I can say that, yeah, the bottoms are close, yes.
“Q. It's very similar?
“A. Yes, very clear that would be the jeans I would say.” (Emphasis added.)
If the answer to both questions in the initial inquiry is “yes,” the appellate court must consider the impact of the jury instruction in light of the entire record and additional considerations—whether “ ‘other procedural safeguards mitigated the deficiency in the eyewitness instruction.’ Mitchell, 294 Kan. at 482–83.” Marshall, 294 Kan. at 868. As additional considerations, the Marshall court considered the procedural safeguards set out in Perry v. New Hampshire, 565 U.S. ––––, 132 S.Ct. 716, 728–29, 181 L.Ed.2d 694 (2012). These safeguards include the defendant's right to confront the eyewitness; the defendant's right to effective assistance of counsel, which includes cross-examination of the eyewitness and focusing the jury's attention on the fallibility of the identification during opening and closing arguments; the jury instruction that warns a jury about eyewitness credibility; and the requirement that the government prove the defendant's guilt beyond a reasonable doubt. Marshall, 294 Kan. at 869.
Procedural safeguards were present here. Pfeiffer confronted the eyewitness, and defense counsel cross-examined Leumann concerning his description and his ability to see the man in his backyard. During closing arguments, defense counsel reminded the jury that the standard of proof was beyond a reasonable doubt. Further, during closing arguments defense counsel questioned Leumann's ability to identify the jeans Pfeiffer was wearing because of the commonality of faded and worn jeans hems. Defense counsel specifically argued that Leumann's identification of the man he saw “briefly” was inconsistent and pointed out Leumann merely said the person in the photo array looked like the person in his backyard. Also, Instruction No. 11 provided the jury with other factors to consider when determining the reliability of Leumann's identification.
Finally, although Leumann's identification of Pfeiffer was an important part of the State's case, there was other evidence pointing to Pfeiffer as the perpetrator. Pfeiffer's discovery in the stolen Subaru less than 24 hours after the burglary, wearing the clothing that Leumann described with the missing purple Scripto lighter in his pocket, was strong circumstantial evidence of his guilt. There is no real possibility the jury would have rendered a different verdict had the degree of certainty factor been omitted from Instruction No. 11. Thus, we conclude the instruction was not clearly erroneous.
Sufficiency of the Evidence
Next, Pfeiffer argues that the evidence was insufficient to convict him of aggravated burglary. According to Pfeiffer, the fact that he may have been wandering through Leumann's backyard looking for a dog in the early morning hours and was later found in the missing Subaru with the ignition key and missing lighter in his pocket does not prove he actually entered the garage and stole the car. Pfeiffer points out no one saw him enter the garage and there were no fingerprints in the garage.
“ ‘ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ “ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710–11, 245 P.3d 1030 (2011).
Viewing all the evidence in the light most favorable to the State, there was sufficient evidence to convince a rational factfinder that Pfeiffer was guilty beyond a reasonable doubt. Leumann identified Pfeiffer as the man he saw wandering his yard in the middle of the night, within the time frame of the burglary. Leumann described the clothing the man was wearing. When Pfeiffer was found asleep in the stolen Subaru the next day, he appeared to be wearing the clothing as described by Leumann. Also, the Subaru was found not far from the scene of the burglary, and Pfeiffer possessed the keys in the vehicle and a purple Scripto lighter, which was also missing from the garage.
Apprendi Issues
Pfeiffer's final two arguments raise sentencing issues. First, he contends the use of his criminal history for sentencing purposes, without proving it to a jury beyond a reasonable doubt, increased the maximum possible penalty for his offense in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He acknowledges this issue has been decided against him in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). Second, again citing Apprendi, Pfeiffer argues the district court erred when it sentenced him to the aggravated term in the presumptive sentencing grid block without submitting any aggravating factors to the jury. Pfeiffer concedes this issue was decided against him in State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P .3d 207 (2008).
The Kansas Supreme Court continues to follow both Ivory and Johnson. See, e.g., State v. Deal, 293 Kan. 872, 890–91, 269 P.3d 1282 (2012). Accordingly, this court is duty bound to follow these rulings. See State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869 (2007). Furthermore, because Pfeiffer received a presumptive sentence, this court has no jurisdiction to address his sentencing challenges. See K.S.A. 21–4721(c)(1); Johnson, 286 Kan. at 851–52.
Affirmed in part and dismissed in part.