Opinion
No. 107,723.
2013-07-5
STATE of Kansas, Appellee, v. Reginald D. STEWART, Appellant.
Appeal from Sedgwick District Court; Eric A. Commer, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric A. Commer, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Reginald D. Stewart's direct appeal from his jury conviction of aggravated robbery in violation of K.S.A. 21–3427.
Stewart raises three errors arising out of jury instructions, and a fourth error, an allegation of cumulative error.
First, although not requesting or objecting to its omission, he now claims the district court should have instructed the jury as to the definition of “bodily harm” as it pertains to aggravated robbery.
Second, he contends the district court should have instructed the jury on robbery as a lesser included offense of aggravated robbery.
Third, he argues that the eyewitness instruction which he had requested at an earlier trial, and did not object to at this trial, was erroneous because it advised the jury to consider the witnesses' certainty about identification.
Factual and Procedural Background
We will consider each of Stewart's appellate issues, but first set forth the facts and trial proceedings which drive this appeal.
On March 8, 2011, three men approached Joshua Moore as he was walking home from work around 11:30 p.m. on a street with a lot of pedestrian traffic. On the dimly lit street, the men circled around Moore and one hit him on the back of the head, knocking him to the ground. The men proceeded to kick and stomp on Moore while they asked him where he kept his money. Before fleeing, the assailants searched through Moore's pockets, removing $8, some cigarettes, and a white lighter.
Patrol Officer Howard Miller had just finished up with a traffic stop in the area, and Moore flagged him down, telling him that he had just been mugged. Officer Miller saw some individuals running, so he chased them. It took 56 seconds from the time Officer Miller radioed in the crime until he apprehended the two individuals he actively chased—Gerard Sillemon and Reginald Stewart. Sillemon had $8 in his pocket and a white lighter lay on the ground in between Sillemon and Stewart. Another suspect was picked up a couple of blocks away. Officers brought all three suspects back to Moore individually, and Moore identified each of them as the men who had robbed him.
The State charged Stewart with one count of aggravated robbery. Previous trials resulted in hung juries. Moore testified to the facts as previously set forth in the third jury trial. He identified Stewart as one of his attackers.
At trial, Sillemon testified that he pled guilty to the crime because he was the only person involved in robbing Moore. He claimed that he had never met Stewart before; the first time he saw him was “when the police had routed [them] together” and then arrested them. He also testified that he did not notice anyone else running with him or in front of him, but he was heavily intoxicated and did not remember much.
Stewart testified in his defense and said that as he was walking down the street he noticed “three guys wailing on a dude.” Curious, he walked up to what he thought was a fight to see if he recognized anyone. He did not. But as he turned to walk away, he heard footsteps coming from behind him. So he ran, fearing they might attack him too. He continued to run from the men but stopped when he saw an officer approach him. While he proclaimed his innocence, an officer took him to Moore, who identified him as one of the robbers. Stewart testified at trial that he was not involved in the robbery in any way.
Stewart argued in closing how the evidence related to the seven factors listed in the jury instruction on eyewitness identification. He argued that Moore misidentified Stewart and that “Reginald Stewart did not commit this crime.” Nevertheless, the jury found Stewart guilty of aggravated robbery.
Stewart was sentenced to the mitigated presumptive prison sentence based on his criminal history score. The court noted the harm inflicted on Moore was not great, but it could have been. The court said, “A kick to a person laying on the ground can impact tremendous harm.”
Stewart has timely appealed.
Was it clearly erroneous to fail to instruct the jury as to the definition of “bodily harm” for aggravated robbery?
Stewart concedes there was not an objection to the instruction on aggravated robbery, and he did not request that the definition of bodily harm be given to the jury. Because Stewart failed to object or to request the instruction, we review this issue under the clearly erroneous standard. See K.S.A. 22–3414(3); State v. Decker, 275 Kan. 502, Syl. ¶ 1, 66 P.3d 915 (2003).
The legal question as to whether the district court committed error in failing to provide the definition of bodily harm in the jury instructions is subject to unlimited review. See State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). If this court determines that the district court legally erred in failing to provide the instruction, then we must determine whether that error was clearly erroneous. To be clearly erroneous, we must be “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. 506, Syl. ¶ 5. The clearly erroneous inquiry is subject to an unlimited review of the record. And, although the State is the party that benefits from the alleged error, the burden remains on the defendant to establish clear error. 295 Kan. at 516.
In support of his contention that the trial court was obligated to provide the jury with a definition of bodily harm in the jury instructions, Stewart relies on language from State v. Bryant, 22 Kan.App.2d 732, 734–35, 922 P.2d 1118,rev. denied 260 Kan. 996 (1996), stating that “bodily harm definitions used in aggravated kidnapping cases are appropriate for use” in aggravated robbery. The bodily harm definition was discussed in the context of a sufficiency of the evidence challenge. Bryant does not hold that a definition of bodily harm is a requirement of an aggravated robbery instruction.
Unless absolutely necessary, a district court should not stray too far from the language recommended by the PIK instructions. See State v. Dickson, 275 Kan. 683, 685, 69 P.3d 549 (2003); State v. Moncla, 262 Kan. 58, 71, 936 P.2d 727 (1997). As the State points out, PIK Crim.3d 56.31, which provided the preferred instruction for aggravated robbery, did not include a definition of bodily harm. Although the comments to the instruction note the definition expressed in Bryant, our Supreme Court has held that the language bodily harm is “readily understandable.” See State v. Sanders, 223 Kan. 550, 552, 575 P.2d 533 (1978). It was not error to fail to provide a definition of bodily harm in the aggravated robbery instruction.
Additionally, the bodily harm element of the charge was not contested at trial. Stewart claimed he was only a witness to “three guys wailing on a dude.” He never made an argument that Moore only suffered a trivial injury.
Moore testified that three larger men approached him and someone hit him from behind. After he fell to the ground, the men repeatedly kicked and stomped on him before asking where he kept his money. And before fleeing, the men continued to stomp on Moore while they searched his pockets. Three men repeatedly stomping on a single victim while rummaging through his or her pockets clearly amounts to more violence than necessary to commit simple robbery. As such, overwhelming evidence supported the bodily harm element. See State v. Daniels, 278 Kan. 53, 63, 91 P.3d 1147 (2004).
It was not error, let alone clearly erroneous, to fail to have provided the jury with a definition of bodily harm in the jury instructions for aggravated robbery.
Was it clearly erroneous to fail to instruct the jury on the lesser included offense of robbery?
Again, Stewart concedes he neither requested the instruction for robbery nor did he object to its omission. Our standard of review is as set forth in the preceding issue.
The State makes an argument based on conversations from previous trials which we will not consider to have any valid effect upon this trial and appeal. We analyze this question by determining whether the failure to give a lesser included instruction of simple robbery was clearly erroneous.
“Robbery is a lesser included offense of aggravated robbery.” State v. Whitaker, 255 Kan. 118, 128, 872 P.2d 278 (1994). “In cases 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.” K.S.A. 22–3414(3). But “[a]n instruction on a lesser included offense is not proper if from the evidence the jury could not reasonably convict the accused of the lesser offense.” State v. Simmons, 282 Kan. 728, 742, 148 P.3d 525 (2006).
Bodily harm separates aggravated robbery from simple robbery. See Bryant, 22 Kan.App.2d at 736–37. The bodily harm element of aggravated robbery occurs when a victim is subjected to “ ‘any act of physical violence’ “ that goes beyond what is necessary to complete a robbery. 22 Kan.App.2d at 734–35; see Daniels, 278 Kan. at 57. Three men could have taken Moore's property by force or threat of bodily harm—they could have completed the robbery-without knocking him to the ground and repeatedly kicking and stomping on him. See K.S.A. 21–3426; Daniels, 278 Kan. at 63 (“[I]t was unnecessarily violent to push a 78–year–old man to the ground in order to accomplish a robbery.”).
Based on the evidence and the defense presented, the jury would not have convicted Stewart of the lesser included offense because the evidence presented did not reasonably support the lesser conviction. It was not error, let alone clearly erroneous, to omit the instruction for robbery.
Was it clearly erroneous to include degree of certainty in the jury instruction concerning eyewitness identification?
Again, Stewart concedes that he did not object to the eyewitness instruction given by the court.
We have previously cited Williams in setting forth our standards of review, but this issue is much more complicated than the previous two because of recent Supreme Court opinions related to witness identification instructions. Therefore, we more fully set forth our standard of review of jury instruction issues in the following manner:
“K.S.A. 22–3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.”
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.”
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” Williams, 295 Kan. 506, Syl. ¶¶ 3–5.
Stewart argues the district court erred in providing the jury with the PIK instruction for eyewitness identification.
At the time of trial, PIK Crim.3d 52.20(6) provided that in “weighing the reliability of eyewitness identification testimony,” the jury should consider, among six other factors, “[t]he degree of certainty demonstrated by the witness at the time of any identification of the accused.” This instruction was provided to the jury.
Our Supreme Court recently held that “it is error to instruct the jury on the degree of certainty factor” because this factor “places undue influence on eyewitness certainty evidence,” which may be unreliable. State v. Mitchell, 249 Kan. 469, 481, 275 P.3d 905 (2012); see State v. Anderson, 294 Kan. 450, Syl. ¶ 2, 276 P.3d 200 (2012).
The State argues we should consider this issue under an invited error standard because Stewart requested the specific eyewitness instruction given here at previous trials. But, as we have previously said, actions and statements at previous trials do not govern this trial, and we refuse to consider the State's contentions there was invited error here. We consider this issue only as an instruction given not objected to and thus under a clearly erroneous standard.
Under the rulings of Mitchell and Anderson, the district court erred when it gave the eyewitness instruction which included the offending paragraph No. 6.
But the Mitchell opinion said the trial court's use of the degree of certainty factor is not reversible error unless the jury instruction “could reasonably have misled the jury.” See 294 Kan. at 481–82.
In order to determine if the degree of certainty could reasonably have misled the jury, we are to:
“(a) decide whether an expression of certainty by the eyewitness was communicated to the jury and, if so, (b) the nature and extent of the certainty expressed. If the court determines there was no degree of certainty conveyed by the eyewitness when making the identification, the jury could not have been misled by including this factor in the jury instructions.” 294 Kan. 469, Syl. ¶ 5.
and, further:
“If an appellate court determines an eyewitness expressed a degree of certainty when making an identification of the defendant, the court next must determine: (a) whether the identification was a critical aspect of the prosecution's case and (b) whether there is any serious question about the reliability of the witness' identification.” 294 Kan. 469, Syl. ¶ 6.
It is clear that in this case a 100% degree of certainty was communicated to the jury. The testimony of Moore and the arguments of the prosecutor showed the nature and extent of the certainty expressed.
When questioned about his identification of the three men on the night of the crime, Moore said he was “100 percent” certain about all three of them and that “[t]here was no doubt when [he] looked at them.” He testified he had “no doubt at all” that Stewart was involved, he was “100 percent” certain. Later on, Moore admitted that he did have doubts about one of the other men picked up that night, but he was sure about Stewart, “100 percent.” Then, when asked if it were possible he was wrong about Stewart, Moore replied, “Is it possible that I could be wrong? No. I'm 100 percent. 100 percent.”
The prosecutor spoke of certainty in the opening statement and at closing argument he said, “The second thing was the victim identification. Joshua Moore looking at the defendant at the scene, looking at him every time after, 100 percent certain that the defendant committed this crime.” And later, the State hit the point again, “What has [Moore] always said about Reginald Stewart? He has never wavered, 100 percent certain that this guy was standing right in front of his face.”
Based on this communicated degree of certainty and the nature and extent of the certainty expressed, we must next determine: “(a) whether the identification was a critical aspect of the prosecution's case and (b) whether there is any serious question about the reliability of the witness identification.” Mitchell, 294 Kan. 470, Syl. ¶ 6.
In this case, Moore's identification of Stewart as one of the robbers who beat on him was extremely significant. However, there was other evidence. Stewart's almost immediate apprehension, the presence at his feet of fruits of the robbery and the fact Sillemon's attempt to take full blame for the robbery and exonerate Stewart was weakened almost totally by cross-examination. But, looking to all matters we conclude that Moore's eyewitness evidence was a critical aspect of the State's case.
However, there is no serious question about the reliability of Moore's eyewitness identification of Stewart as one of his robbers. He was thoroughly and effectively cross-examined by Stewart's counsel. The lighting of the street was pointed out. Moore's position on the ground and his ability to see his attackers was shown.
The jury was fully exposed to all the facts and circumstances both in favor of and against the accuracy of Moore's identification of Stewart, and this minimizes any concerns we have concerning the reliability of Moore's identification.
It was error to give paragraph No. 6 of the eyewitness identification instruction, but having followed the teachings of Mitchell and Anderson, we hold the erroneous instruction “could not reasonably have misled the jury.”
Was there sufficient cumulative error to deprive Stewart of his right to a fair trial?
Stewart finally argues that we must reverse his conviction if “ ‘the totality of circumstances substantially prejudiced the defendant and denied him a fair trial.’ “ State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992).
The State argues that no error exists, that the evidence presented overwhelmingly established Stewart's guilt, and that our Supreme Court in State v. Nguyen, 285 Kan. 418, 437, 172P.3d 1165 (2007), held that one error is insufficient to support reversal under the cumulative error rule.
Because of the Mitchell and Anderson opinions, we do, in fact, have an error here, but one which by our analysis under those opinions we have not deemed sufficient to require reversal and that a new trial be granted. That by itself, might well be sufficient to satisfy a claimed cumulative error analysis.
But, out of an abundance of caution and because an error of substance has been found, we will also make a cumulative error analysis.
The factors which we are to consider have been recently set forth in State v. Tully, 293 Kan. 176, 205–06, 262 P.3d 314 (2011), in this manner.
“In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless. See State v. Colston, 290 Kan. 952, 978–79, 235 P.3d 1234 (2010). In other words, was the defendant's right to a fair trial violated because the combined errors affected the outcome of the trial? In a cumulative error analysis, ‘[i]f any of the errors being aggregated are constitutional in nature error must be harmless beyond a reasonable doubt.’ United States v. Toles, 297 F.3d 959, 972 (10th Cir.2002).
“In making the assessment of whether the cumulative errors are harmless error, an appellate court examines the errors in the contest of the record as a whole considering how the district court dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence. See Ward, 292 Kan. at [569–70, 577–79];State v. Dumars, 33 Kan.App.2d 735, 754–55, 108 P.3d 448,rev. denied 280 Kan. 986 (2005). ‘No prejudicial error may be found upon this cumulative effect rule ... if the evidence is overwhelming against the defendant. Colston, 290 Kan. 952, Syl. ¶ 5.’ [Citations omitted.]”
Having failed to find the offending language in the eyewitness instruction to be clear error requiring a new trial, it is equally difficult to see where it requires a new trial under a cumulative error analysis. This was not a perfect trial but such seldom occurs. It was, in fact, a fair trial and that is all that is required. State v. Magallanez, 290 Kan. 906, 926, 235 P.3d 460 (2010).
We have examined the record as a whole and the strength of the evidence. As required by Tully, we have also considered whether the evidence was considered to be “overwhelming.” It is difficult to say that it was when the ultimate question was based on an eyewitness identification although there certainly were other facts pointing to guilt and from a cold record, we are deprived of seeing what the jury saw.
Based on the single sentence of the one instruction, we do not see sufficient cumulative error to require reversal and having fully followed Tully, we decline to find cumulative error exists under the facts and record in this case.
Affirmed.