Opinion
No. 108,284.
2013-08-16
STATE of Kansas, Appellee, v. Pamela D. PITTMAN, Appellant.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge. Carl F.A. Maughan and Catherine A. Zigtema, of Maughan and Maughan, LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Carl F.A. Maughan and Catherine A. Zigtema, of Maughan and Maughan, LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Pamela Pittman appeals from her conviction by a jury of severity level 4 aggravated battery. Pittman raises two arguments on appeal. First, Pittman argues that the trial court erred in failing to give a lesser included offense instruction for her severity level 4 aggravated battery charge. Second, Pittman contends that the State committed prosecutorial misconduct when it elicited prior bad acts evidence in violation of an order in limine. We disagree. Accordingly, we affirm.
One spring evening in 2010, Tyerria Miles decided to go to Roy's Bachelor Lounge—a nightclub in Wichita—with her friends Ashley Peach and Shakeshia Green. Once inside the nightclub, Miles got a Long Island iced tea, went to the dance floor, and danced with Peach and Green. While dancing, Miles noticed that a woman, later identified as Shawntrice Jones, was looking at her strangely or aggressively. After a short time, Jones began screaming at Miles on the dance floor. During the confrontation, Jones punched Miles in the face. One of the nightclub security guards grabbed Miles and escorted her out the back door. Jones and her friends also were forced to leave and were escorted out the front door.
Peach and Green followed Miles out of the nightclub. Once both groups of women were outside, they met on the side of the building, where Jones again punched Miles in the face. This time, Miles punched back, and a fight broke out between the two groups. During the fight, Peach saw that Jones and Pittman were slashing Miles' face with a knife. Once the fight was over, Peach saw that Miles was bloody from cuts to her face, back, head, and legs. Because Miles was bleeding badly, she and her other friends went to Miles' step-mother's house for assistance. Miles' step-mother called the police.
The police and paramedics arrived. Although the paramedics cleaned Miles' wounds, they told her to go to the emergency room for more treatment, but Miles refused. Miles, however, changed her mind the next day and went to the hospital. While at the hospital, she received stitches to close the deep cuts to her face. The hospital personnel, however, could not stitch the cuts on Miles' neck and back because the wounds were jagged.
The State initially charged Pittman with a level 7 aggravated battery, but the trial court found probable cause that a level 5 reckless aggravated battery had been committed. Before trial, the State amended its complaint and charged Pittman with a severity level 4 aggravated battery based on her involvement in the fight outside the nightclub. According to the amended complaint “on or about the 16th day of May, 2010 A.D., one PAMELA D. PITTMAN did then and there unlawfully and intentionally cause great bodily harm or disfigurement to another person, to wit: Tyerria M. Miles.”
Pittman's case proceeded to a jury trial. Before trial, Pittman requested an in limine order to exclude evidence of her reputation for carrying knives. The trial court granted Pittman's motion. Pittman's jury trial began in March 2012. At trial, multiple witnesses from the altercation, including the victim, bystanders, and other participants presented conflicting testimony regarding the altercation. During the State's examination of Green, she testified that before the fight broke out she heard Peach tell Miles that “ ‘they're known for carrying knives.’ “ Defense counsel objected and asked the trial court for a recess so that Green could be admonished. Green was admonished, and the trial proceeded.
Later, during the State's redirect examination of Peach, Peach testified that she originally did not talk to the police because of a previous altercation she had with Pittman. Specifically, Peach stated, “I didn't talk to the police simple fact because I done have an altercation with them before. They done stab me in my head. They done stabbed a couple—.” Defense counsel objected to Peach's testimony. In response, the prosecutor explained that he was unaware that there had been a previous altercation between Pittman and Peach. Defense counsel agreed that the discovery did not contain any information about a previous altercation between Peach and Pittman, and he believed that the prosecutor was not expecting Peach's answer. The trial court asked defense counsel what he wanted to do, and after consulting with Pittman, he told the court that they did not want to request a mistrial or admonish the jury. Instead, defense counsel wanted to “just move on as if it didn't happen, and—and we'll just let it—handle it that way.”
Pittman's trial continued, and she eventually was convicted of severity level 4 aggravated battery. Later, the trial court denied Pittman's departure motion, and she was sentenced to 162 months' imprisonment.
Did the trial court err in failing to give a lesser included offense instruction for Pittman's severity level 4 aggravated battery charge?
Pittman first argues that the evidence at trial supported a lesser included offense instruction for reckless aggravated battery, i.e., “recklessly causing great bodily harm to another person or disfigurement of another person.” K.S.A. 21–3414(a)(2)(A). Pittman maintains that the trial court erred in not instructing the jury on that lesser included offense. The State asserts that the trial court “was not required to give [the] requested instruction on the lesser included offense of reckless aggravated battery because no evidence was presented that would reasonably justify a conviction on reckless aggravated battery.”
Recently, our Supreme Court has set out the progression of analysis and corresponding standards of appellate review for issues involving jury instructions:
“(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, Syl. ¶ 3, 256 P.3d 801 (2011)cert. denied132 S.Ct. 1594 (2012) ].” State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).
Each of these will be addressed separately below. A. Jurisdiction and Preservation
K.S.A. 22–3414(3) sets forth specific statutory provisions addressing the appeal of claims of error surrounding a trial court's giving or failing to give an instruction. That statute requires “an appropriate and timely objection to the challenged instruction in order to avoid being constrained to only appealing clearly erroneous instructions.” Plummer, 295 Kan. at 161. Here, the parties concede that Pittman timely requested a lesser included offense instruction at the instruction hearing. The parties' concession is supported by the record. Consequently, Pittman's lesser included offense instruction is reviewable from both the jurisdiction and preservation viewpoints. B. Instruction was Legally Appropriate
Next, this court's inquiry turns to a review of the merits of Pittman's allegation, commencing with a determination of whether her request for a reckless aggravated battery instruction was legally appropriate. When an appellate court considers the legal appropriateness of an instruction, “appellate review is unlimited, as with all questions of law.” Plummer; 295 Kan. at 161. In the context of lesser included offense instructions, an appellate court asks whether the lesser crime is “legally an included offense of the charged crime.” 295 Kan. at 161.
Here, the question of whether reckless aggravated battery is legally an included offense under Pittman's intentional aggravated battery charge is straightforward. K.S.A. 21–3107(2)(a) states that “[a] lesser included crime is: (a) [a] lesser degree of the same crime.” In this case, Pittman was charged with violating K.S.A. 21–3414(a)(1)(A), i.e., a severity level 4 aggravated battery. At the instruction conference, Pittman's counsel requested an instruction for K.S.A. 21–3414(a)(2)(A), i.e., a severity level 5 aggravated battery. Because a severity level 5 aggravated battery is a lesser degree of a severity level 4 aggravated battery, the former crime is a lesser included offense under Pittman's level 4 aggravated battery charge. Hence, Pittman's request for a reckless aggravated battery instruction was legally appropriate. C. Sufficient Evidence Supporting the Instruction
But “even if the instruction is legally appropriate when viewed in isolation, it must be supported by the particular facts of the case at bar.” Plummer, 295 Kan. at 161. Thus, this court's primary focus under Pittman's lesser included offense instruction argument is to determine whether a lesser included offense instruction was appropriate based on the facts of this case. Our Supreme Court explained the analytical standard for this determination by stating:
“[T]he giving of lesser included crime instructions is not a matter of discretion with the trial judge. K.S.A. 22–3414(3) directs that ‘where there is some evidence which would reasonably justify a conviction of some lesser included crime ..., the judge shall instruct the jury as to the crime charged and any such lesser included crime.” ’ (Emphasis added.) State v. Williams, 295 Kan. 506, 521–22, 286 P.3d 195 (2012).
Even though the giving of lesser included crime instructions is not a matter of discretion with the trial judge, our Supreme Court recently pointed out that the giving of the instruction depends on the underlying facts of the case. The Plummer court described the inquiry as follows:
“[P]ursuant to the language of K.S.A. 22–3414(3), a lesser included offense instruction is only required ‘where there is some evidence which would reasonably justify a conviction of some lesser included crime.’ Therefore, a district court does not err in refusing to give a lesser included offense instruction on a crime which is unsupported by the evidence in that particular case.” Plummer, 295 Kan. at 161.
In this case, Pittman argues that “[t]he evidence in this matter supported a reckless instruction when viewed in the light most favorable to the defendant.” Specifically, Pittman relies on the following evidence presented at trial:
“Witness Ashley Peach testified that all three codefendants had kn ves and stabbed or cut the victim. The victim testified that she only believed that punches were thrown and she did not see any knife during the altercation. Further she did not know she was cut until after the fight was over.... LaQuisha Jones testified pursuant to p ea agreement, that she did not see a knife during the fight and only saw the defendant with a knife after they left the scene. Sharon Jones testified on behalf of the defendant that there were not any knives used during the altercation, and specifically, that the defendant did not have or use a knife.”
Pittman's arguments, however, do not point to evidence that would justify a conviction for reckless aggravated battery. K.S.A. 21–3414(a)(2)(A) defines reckless aggravated battery as “recklessly causing great bodily harm to another person or disfigurement of another person.” Reckless conduct is “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” K.S.A. 21–3201(c). To act recklessly, a defendant must know that he or she is putting others in imminent danger, State v. Jenkins, 272 Kan. 1366, 1375, 39 P.3d 47 (2002), but need not foresee the particular injury that results from his or her conduct. State v. McCoy, 34 Kan.App.2d 185, 194, 116 P.3d 48 (citing State v. Davidson, 267 Kan. 667, 582–84, 987 P.2d 335 [1999],rev. denied 280 Kan. 988 [2005] ). By contrast, intentional conduct is purposeful, willful, and not accidental. K.S .A. 21–3201(b).
In this case, the testimony that Pittman relies on did not justify a reckless aggravated battery instruction because the testimony does not support a theory of reckless conduct. The evidence in this case left the jury with two options: (1) that Pittman stabbed Miles with a knife; or (2) that Pittman did not have a knife so she could not have stabbed Miles or that if she had a knife, she did not use it to stab or cut Miles. The problem with Pittman's argument is that neither one of those scenarios amounted to a reckless act. Pittman did not argue that she threw a knife into the air or into a crowd with an unjustifiable disregard of that danger nor did Pittman argue that she waved a knife around and injured Miles by chance. See State v. Roberts, No. 91,322, 2004 WL 2977478, at *2–3 (Kan.App.2004) (unpublished opinion) (evidence did not support reckless aggravated battery when victim was shot during a struggle for a gun during a drug deal); cf. State v. Ochoa, 20 Kan.App.2d 1014, 1020–21, 895 P.2d 198 (1995) (evidence supported both intentional and reckless aggravated battery when defendant testified he did not intend to shoot anyone when he fired into the air towards a crowd that was advancing on him) overruled in part by State v. Valentine, 260 Kan. 431, 435, 921 P.2d 770 (1996).
Instead, the witnesses who testified on Pittman's behalf denied that Pittman had or used a knife during the altercation. Although it could be argued that starting a fight outside a nightclub is reckless, it does not necessarily follow that the deep lacerations on Miles' face and body which occurred during the fight were caused by reckless conduct. Simply put, the evidence here supports only the fact that either Pittman stabbed Miles or that Pittman did not stab Miles. Consequently, the trial court properly refused to give an instruction on the lesser included offense of severity level 5 aggravated battery (reckless).
Pittman also argues that there was sufficient evidence to support the lesser included instruction of reckless aggravated battery because the trial court initially bound over Pittman and a codefendant on level 5 aggravated battery charges. Pittman contends that “[i]f two district courts are able to find probable cause to bind over on reckless aggravated battery for both this specific defendant and her co defendant, then there is certainly sufficient evidence to support a lesser included instruction requested by the defendant when the light is viewed in favor of the defendant.”
But it would be a non sequitur to conclude that simply because there was probable cause to believe Pittman committed a level 5 aggravated batteiy that there was sufficient evidence to support the lesser included offense instruction for that crime. Such a conclusion would mean that whenever a defendant is bound over on one complaint, (and is later bound over on a new complaint that the State files) then that defendant would be entitled to a lesser included instruction on all counts listed in the first complaint whether or not evidence existed to support the giving of the lesser included instruction. This point is patently frivolous. Because the evidence did not support a lesser included instruction for level 5 aggravated battery, Pittman's first appellate argument must fail and the reversibility step of the Plummer analysis need not be discussed further.
Did the prosecutor commit prosecutorial misconduct during trial by violating the trial court's order in limine?
Next, Pittman argues that the State committed prosecutorial misconduct when it elicited prior bad acts evidence in violation of an order in limine. In particular, Pittman maintains that two portions of trial testimony constituted prior bad act testimony. The relevant portions of the transcript read as follows:
“[THE STATE]: While you're waiting for [Miles] to come out [of the nightclub], what are you doing?
“[WITNESS GREEN]: We're just sitting there talking about the whole thing that happened inside the club, and next thing you know, we see them coming out, and then they get the—we said—[Peach] said to [Miles], ‘Don't do nothing, because I know they're known for carrying knives.’
“[THE STATE]: Okay. [Defense counsel] was asking you, you—a first you didn't want to talk to the police. You told ‘em he needs to realize something. Tell the jurors what we need to realize about why you didn't talk to the police.
“[WITNESS PEACH]: I didn't talk to the police simple fact because I done have an altercation with them before. They done stab me in my head. They done stabbed a couple
“[DEFENSE COUNSEL]: Your Honor, may we approach?
“THE COURT: ... Ladies and gentlemen, why don't you see yourself to the jury room. Don't forget the admonition.”
After the jury left the courtroom, the prosecutor explained that he was unaware that there had been a pervious altercation between Pittman and Peach. Defense counsel agreed that the discovery did not contain any information about a previous altercation between Pittman and Peach, and he believed that the prosecutor was not expecting Peach's answer. The trial court asked defense counsel what he wanted to do, and after consulting with Pittman, he told the court that they did not want to request a mistrial or admonish the jury. Instead, defense counsel wanted to “just move on as if it didn't happen, and—and we'll just let it—handle it that way.”
Pittman maintains that these statements constituted prosecutorial misconduct because an order in limine prevented the State from admitting testimony concerning Pittman's reputation for carrying knives.
Whether there is an order in limine or not, our Supreme Court has noted that a prosecutor has the duty to guard against statements by his or her witnesses containing inadmissible evidence. If the prosecutor believes a witness may give an inadmissible answer during his or her examination, the prosecutor must warn the witness to refrain from making such a statement. State v. Crume, 271 Kan. 87, 101, 22 P.3d 1057 (2001).
When specific guarantees of the Bill of Rights are involved, trial courts must exercise special care to ensure that prosecutorial conduct does not impermissibly infringe upon those guarantees. In evaluating a prosecutor's alleged violation of a motion in limine, the court first must determine whether an intentional or inadvertent violation of the order in limine occurred. Outside the presence of the jury, the defendant's attorney should inquire whether the prosecutor warned or failed to warn the witness to refrain from making such a statement. Then, the prosecutor must articulate the reason for the violation. Crume, 271 Kan. at 101–02.
If the order in limine is violated, there must be a determination by the trial judge as to whether the material elicited in violation of the order substantially prejudiced the defendant's right to a fair trial. Crume, 271 Kan at 102. Three factors should be considered to determine whether a new trial should be granted because of a prosecutor's violation of an order in limine. First, was the prosecutor's misconduct so gross and flagrant as to prejudice the jury against the defendant? Second, does the admission of the statement indicate ill will by the prosecutor? Third, is the evidence against the defendant so overwhelming there was little or no likelihood the prosecutor's violation of the order in limine changed the result of the trial? 271 Kan. at 102.
Here, Pittman's prosecutorial misconduct argument carries little weight. Although the trial court's order in limine prevented the State from eliciting evidence regarding Pittman's reputation for carrying knives, the State arguably did not elicit the testimony of which Pittman complains. But even if the witnesses' comments violated the order in limine, Pittman's argument still fails. Indeed, Pittman's argument fails under the second step of the analysis. Frankly put, there is no indication that admission of this evidence was due to gross and flagrant misconduct or ill will by the prosecutor. In fact, a review of the record shows that defense counsel conceded that the prosecutor did not elicit either of the statements that Pittman now alleges were inappropriate. Because there is no indication that admission of this evidence was due to gross and flagrant misconduct or ill will by the prosecutor, Pittman's prosecutorial misconduct argument fails.
Affirmed.