Opinion
No. 107,292.
2013-12-27
STATE of Kansas, Appellee, v. Stephen RUSSELL, Appellant.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Meryl Carver–Allmond, Capital Appellate Defender, for appellant. Cheryl A. Marquardt, assistant county attorney, Todd L. Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Meryl Carver–Allmond, Capital Appellate Defender, for appellant. Cheryl A. Marquardt, assistant county attorney, Todd L. Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Stephen Russell appeals his jury trial conviction of one count of aggravated criminal sodomy. On appeal, Russell argues that the trial court erred in admitting evidence under K.S.A.2010 Supp. 60–455(d). Nevertheless, the record shows that Russell failed to lodge a timely objection to testimony and discussions regarding the K.S.A.2010 Supp. 60–455(d) evidence. As a result, we determine that our appellate review has been foreclosed on this issue under the contemporaneous objection rule. Russell also argues that the trial court erred in denying his motion to strike a juror after it was discovered that the juror was an acquaintance of the victim's family. And finally, Russell maintains that the trial court erred in ordering him to serve lifetime postrelease supervision instead of parole. Of the remaining two issues, we find only the second to be meritorious. We, therefore, vacate the lifetime postrelease supervision portion of Russell's sentence. Accordingly, we affirm in part and vacate in part.
On October 2, 2007, N.P., a 12–year–old, seventh-grade student, went to his principal's office and told his principal, Kerry Brungardt, that he was being sexually abused by his stepfather, Russell. N.P. told Principal Brungardt that Russell had been sexually abusing him since he was 9 years old and that he decided to report the abuse because he could not take it anymore
Principal Brungardt called the police and Social and Rehabilitation Services. Principal Brungardt also had the vice-principal, Brooks Jenkins, come into his office to speak with N .P. N.P. told Principal Brungardt and Vice-principal Jenkins that Russell had told N.P. that if N.P. told anyone about the sexual abuse that he would tie N.P. up and let the neighbor's pit bull attack him. N.P. also stated that he had considered killing Russell to end the sexual abuse.
N.P. reported that he had been sexually molested approximately 13 times and in various rooms of his home. N.P. stated that the most recent sexual abuse occurred on October 1, 2007, when Russell put his penis in N.P.'s mouth. N.P. reported that Russell told him to come straight home from school on October 2, 2007, or he would hurt him. N.P. further reported that he was sexually molested by Russell on the Tuesday after Labor Day and on the first day of school of his seventh-grade year. N.P. also reported that on one occasion Russell had used a baby syringe filled with orange liquid and shot it into N .P.'s rectum to make it hurt less.
After taking N.P.'s report, the Lansing Police Department obtained a search warrant for N.P.'s house. When the police executed the warrant, Russell was at the house with N.P.'s younger brother. The police took Russell to the police department for an interview while the house was being searched.
During his interview, Russell told police that he was a stay-at-home babysitter for N.P.'s younger brother and that he watched N.P. after school until N.P.'s mother returned home from work around 5:30 p.m. When asked where in the house he and N.P.'s mother had sex, Russell told police that he and N.P.'s mother had sex in the master bedroom, on the couch in the living room, and in both bathrooms, and that he had used a video camera to record it. Russell did not mention ever having sex in N.P.'s bedroom. When asked when and where he masturbated, Russell reported to police that he would masturbate in the bathroom when N.P. was at school and while N.P.'s mother was at work.
The day after N.P. reported the abuse, he participated in a forensic interview with Jennifer Coughlin at Sunflower House. The interview was recorded and was later played during the trial. During the interview, N.P. told Coughlin that Russell had sexually abused him more than 10 times and that Russell had videotaped it. N .P. stated that Russell would stick his penis in N.P.'s rectum and mouth and that once Russell used a baby syringe to inject orange liquid into N.P.'s rectum to make it hurt less. N.P. told Coughlin that he did what Russell told him to do because he was afraid. N.P. further reported that sometimes during the sexual molestation “white stuff” would come out of Russell's penis and would spray on N.P.'s chest or arm or onto N.P.'s bedroom floor on the carpet next to his bed. N.P. stated that Russell would then wipe it up with a towel.
On November 16, 2007, an officer from the Lansing Police Department returned to N.P.'s house and used an alternate light source to locate areas on N.P.'s bedroom carpet that fluoresced, indicating possible semen. The officer took three carpet samples from N.P.'s bedroom and submitted them to the KBI laboratory to be tested. The test results showed that the semen found on the carpet samples matched Russell's DNA profile.
The State originally charged Russell with one count of aggravated criminal sodomy and two counts of aggravated indecent liberties with a child. The State later amended the complaint to charge Russell with three counts of aggravated criminal sodomy and removed the two counts of aggravated indecent liberties with a child.
After hearing the evidence, a jury convicted Russell of one count of aggravated criminal sodomy but found him not guilty on the remaining two counts. Russell moved for a new trial and for a durational and dispositional departure, both of which the trial court denied. Russell was sentenced to life in prison with a mandatory minimum of 25 years before the opportunity for parole eligibility and to lifetime postrelease supervision. Did the trial court err in admitting evidence under K.S.A.2010 Supp. 60–455(d)?
Russell argues that the trial court erred in admitting irrelevant and prejudicial evidence under K.S.A.2010 Supp. 60–455(d). Russell maintains that K.S.A.2010 Supp. 60–455(a) prevents the admission of prior crimes evidence to prove propensity even under K.S.A. 60–455(d), which argument has been rejected recently by our Supreme Court in State v. Prine, 297 Kan. 460, ––– P.3d ––––, No. 103242, 2013 WL 2364286 (May 31, 2013). Russell argues that evidence he sexually abused N.P. anally and that he used Orajel to numb N.P.'s rectum should have been excluded. Russell objected to the admission of this evidence in multiple motions in limine before trial.
Motions in limine are generally used to invoke a trial judge's inherent power to control proceedings, to exclude inadmissible evidence, and to prevent undue prejudice. A ruling on a motion in limine is temporary in nature and is subject to revision at trial in light of the evidence that is actually presented. State v. Smith, 46 Kan.App.2d 939, 943, 268 P.3d 1206 (2011). Accordingly, when a motion in limine is denied, the moving party must object again when the evidence is presented to preserve the issue on appeal. State v. Clements, 252 Kan. 86, 89, 843 P.2d 679 (1992). Failing to contemporaneously object to the admission of the evidence waives any claimed error. K.S. A. 60–404; State v. Leeper, 289 Kan. 89, Syl. ¶ 7, 238 P.3d 266 (2010); Douglas v. Lombardino, 236 Kan. 471, 482–83, 693 P.2d 1138 (1985).
As stated earlier, before trial Russell moved in limine seeking exclusion of “a syringe and container of Orajel tooth medication” and “any evidence regarding non-oral sex between the defendant and the complaining witness.” The motions regarding these two issues were ultimately denied. Russell, however, failed to object to the anal sodomy and Orajel evidence until well into the trial.
For example, in opening statements, the prosecutor referenced N.P .'s reports of an orange substance injected into his rectum and the discovery of Orajel in the family home. In defense counsel's opening statement he stated, “You're going to hear that although [N .P.] says that he was orally and anally sodomized repeatedly, for many, many periods of time, you know, multiple times,” he was examined by a forensic specialist who noted no injuries. Principal Brungardt testified, without objection, that [N.P.] reported that Russell had taken “a baby syringe and it was filled with orange stuff and shot it up his rectum” and that N.P.'s stepfather had abused him 13 times. On cross-examination of Principal Brungardt, defense counsel asked him about whether N.P. had reported that “his stepdad had put his penis in [N.P.'s behind” and it hurt.
N.P. testified, without objection, that on one occasion Russell used an orange liquid, that he later learned was Orajel, to lessen the pain. Defense counsel confirmed with N.P. that he had alleged anal sex, but that his bottom had never bled after the anal sex.
Peggy Rangland, a social worker, testified without objection that N.P. told her about the orange liquid and syringe. N.P.'s mother testified, without objection, that N.P. had indicated during a joint counseling session that Russell had used an orange liquid in a baby syringe. She immediately thought of the Orajel in the cabinet because Russell had used it before during their sexual encounters. This convinced her that the orange liquid described was Orajel. She later found a bottle of Orajel with a syringe next to it in the bathroom cabinet. On cross-examination, N.P.'s mother testified that the moment she heard about the orange liquid, she realized it was the Orajel she and Russell used during sex.
Although defense counsel objected at trial to the admission of the Orajel and the admission of an unredacted video tape of an interview with N.P., in which he describes an orange substance injected into his rectum with a syringe, these objections were made after the earlier-described testimony had been introduced. As a result, the defense failed to make a timely objection to the evidence in question. Our contemporaneous objection rule is codified in K.S.A. 60–404. The importance of the rule in the conduct of a trial is explained in Baker v. State, 204 Kan. 607, 611, 464 P.2d 212 (1970), where Justice O'Connor, speaking for the court, stated:
“The contemporaneous objection rule long adhered to in this state requires timely and specific objection to the admission of evidence in order for the question of admissibility to be considered on appeal. (K.S.A.60–404.) The rule is a salutary procedural tool serving a legitimate state purpose. [Citations omitted.] By making use of the rule, counsel gives the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial. Furthermore, the rule is practically one of necessity if litigation is ever to be brought to an end.”
See also State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010); State v. King, 288 Kan. 333, 341–42, 348–49, 204 P.3d 585 (2009) (the contemporaneous objection rule provides that “a timely and specific objection to evidence at trial is required to preserve issues arising from that admission on appeal”). Because Russell failed to make a timely objection to the evidence in question, our appellate review is foreclosed under the contemporaneous objection rule set forth in K.S.A. 60–404.
Did the trial court err in denying Russell's motion to strike a juror?
Next, Russell argues that the trial court erred in denying his motion to strike a juror after it was discovered that the juror was a friend of N.P.'s grandfather. On the second day of trial, Russell moved to strike the juror after discovering that the juror, through her work, had emailed the grandfather directly and knew him on a first-name basis. The trial court denied Russell's motion, finding that the juror could still be fair and impartial. Russell contends that the trial court abused its discretion in denying his motion and requests that his case be remanded for a new trial.
Appellate courts review the trial court's ruling on a juror challenge for cause for an abuse of discretion. Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by a district judge, then it cannot be said that the judge abused his or her discretion. State v. Ransom, 289 Kan. 373, 389, 212 P.3d 203 (2009). Russell bears the burden of establishing that the trial court abused its discretion. See Ransom, 289 Kan. at 389. Additionally, “[t]he failure to excuse a juror for cause is not a ground for reversal unless the defendant was prejudiced as a result.” Ransom, 289 Kan. at 389 (quoting State v. Franklin, 280 Kan. 337, 346, 121 P.3d 447 [2005] ).
Russell has not demonstrated an abuse of the trial judge's discretion in refusing to remove the juror for cause. The juror did admit that she knew N.P.'s grandfather, that she had emailed him personally, and that she knew his first name, but she further stated that she could remain fair and impartial and that she would listen to the evidence and follow the court's instructions. In denying Russell's motion, the trial judge stated:
“I did not get the sense that she had some personal investment in this case or personal commitment or some personal concern with making decisions in this case, and she thought she could be fair.
“She also indicated she would follow all instructions of the Court, which will include an instruction that she should not consider this with any favoritism or prejudices.”
These statements do not support Russell's assertion on appeal that the juror could not act impartially or without prejudice. This conclusion is bolstered by the fact that the jury acquitted Russell on two of the three counts of aggravated criminal sodomy.
Moreover, even if we were to assume that Russell could show that the trial court abused its discretion, he has failed to establish that he was prejudiced by the trial court's refusal to remove the juror. Prejudice cannot be established through the loss of a peremptory challenge alone. State v. McCullough, 293 Kan. 970, 996, 270 P.3d 1142 (2012). Therefore, although Russell maintains that he would have used his peremptory challenges differently had he known about the juror's personal relationship, he has failed to demonstrate any prejudice that resulted. Thus, Russell was not prejudiced by the trial court's refusal to strike the juror for cause. Did the trial court err in ordering Russell to serve lifetime postrelease instead of parole?
Russell complains that the trial court imposed lifetime postrelease supervision, when he should be subject to parole for his indeterminate sentence. See K.S.A. 22–3717(u) (inmate sentenced under K.S.A. 21–4643 for crimes on or after July 1, 2006, shall be placed on parole for life). Russell did not object to the postrelease supervision in the trial court.
Courts are permitted to correct illegal sentences at any time. K .S.A. 22–3504(1); see, e.g., State v. Reyna, 290 Kan. 666, 695, 234 P.3d 761,cert. denied131 S.Ct. 532 (2010). Whether a sentence is illegal is an issue of statutory interpretation and subject to unlimited review as a question of law. State v. Chavez, 292 Kan. 464, 465, 254 P.3d 539 (2011).
The State concedes that the trial court erred and that Russell should be subject to lifetime parole rather than postrelease supervision based on the holding in State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 (2011) (inmate with off-grid indeterminate life sentence can leave prison only if successor to Kansas Parole Board grants parole; sentencing court has no authority to order term of postrelease supervision in conjunction with off-grid indeterminate life sentence).
As a result, we vacate the lifetime postrelease supervision portion of Russell's sentence. See State v. Summers, 293 Kan. 819, 832, 272 P.3d 1 (2012) (postrelease supervision order vacated in similar circumstances).
Affirmed in part and vacated in part.