Opinion
No. 107,412.
2013-08-16
STATE of Kansas, Appellee, v. Aaron TURNER, Appellant.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM:
Aaron Turner presents this court with four issues to resolve. Turner was not present for three motion hearings where the court heard, considered, and ruled on pending motions. We find proceeding without Turner present at those hearings was harmless error, as the district court realized before the jury tria its mistake and took remedial action by reconsidering all the motions (18 in all) with Turner present. Turner requested a continuance of the jury trial both before and during the trial, and the district court did not abuse its discretion by denying his requested continuances. We find no cumulative error, and how Apprendi is applied to Turner's criminal history is well settled under Kansas law. We affirm his conviction.
Facts
Contraband and Battery
On June 26, 2010, Turner was an inmate at Lansing Correctional Facility. During a routine check, Officer Ann McDowell saw Turner was trying to hide something in his bunk. She seized the object, a cell phone, which was contraband in the correctional facility. McDowell took Turner and the cell phone to her office. At her office, McDowell showed the cell phone to Officer William Gregory. Gregory called his lieutenant, Janet Myers, who told him to go back to the cell and search for a charger. No charger was found.
Gregory left to search Turner's cell, and McDowell set the cell phone on her desk to call her acting captain. According to McDowell, Turner then shoved her out of the way, grabbed the cell phone, and ran out of her office. McDowell chased him and called in an alarm. As Turner ran, he jumped several fences and entered a bathroom. Other officers pursued and found Turner in the bathroom, flushing the toilet. No cell phone was found.
Lansing Correctional Facility had John Speer investigate the incident, and he obtained statements from all parties involved. Myers also investigated the incident and took statements.
The State filed two charges against Turner: battery of a state correctional officer while the officer was engaged in performance of duty, under K.S.A. 21–3413(a)(3)(A), and traffic in contraband in a correctional institution, under K.S.A.2009 Supp. 21–3826. Turner alleged McDowell set him up.
Trial
Turner's pretrial motions were extensive—approximately 18 in all. The record reflects Turner was absent from five hearings—three hearings where motions were heard and two continuance hearings. At three of the hearings from which Turner was absent, the district court heard arguments of counsel and ruled on some of the motions.
On June 8, 2011, Turner moved to dismiss for due process violations caused by his absence from the hearings. On June 24, 2011, the court denied the motion as being moot because it had that day, in the presence of Turner, reconsidered reviewed, and ruled on each motion raised to date.
Upon learning Speer was deployed to Africa, Turner filed a pretrial motion waiving his right to a speedy trial and requesting the trial be continued until Speer's testimony could be obtained in person or otherwise. His motion to continue the trial was denied.
Prior to trial, the district court conducted a hearing on whether Janet Myers should be compelled to honor her subpoena for trial. Turner's subpoena was late in being issued and served because Myers had gone on a scheduled vacation. Turner argued he had already been denied Speer's testimony and claimed Myers was material to his defense. The district court ruled Myers' testimony was ancillary as she only investigated after the incident. The district court granted Myers' motion to quash the subpoena, then denied Turner's request for a continuance of the jury trial so Myers could appear.
During the trial, Turner presented a number of witnesses trying to discredit McDowell's finding of the cell phone. The witnesses testified they never saw the cell phone or Turner running, contrary to testimony by McDowell and the other officers who chased Turner.
The jury found Turner not guilty of battery of a state correctional officer but guilty of traffic in contraband in a correctional institution.
Turner timely appeals.
Analysis
Turner raises four issues on appeal:
• The district court violated his right to be present at critical stages of the proceedings against him;
• The district court violated his right to present his defense theory of the case by forcing him to proceed to trial without two key witnesses;
• The combination of errors violated his right to a fair trial; and
• The district court's use of his prior criminal history violated his rights under Apprendi.
Was Turner's Constitutional and Nonconstitutional Right to be Present at Pretrial Motions Violated? Standard of Review
Turner articulates both a constitutional and a nonconstitutional (statutory) right to be present at all critical stages of the proceedings against him. The right to be present is a question of law over which appellate courts exercise unlimited review. State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013) (citing State v. Burns, 295 Kan. 951, 955, 287 P.3d 261 [2012] ).
Was Turner Absent at Critical Stages?
It is clear from the record Turner was absent from three pretrial hearings where substantive issues were discussed. Turner argues those pretrial learings were critical stages of the case, and continuing in his absence violated his constitutional and nonconstitutional right to be present at all critical stages of a trial. We agree he had a right to be present.
A criminal defendant in Kansas has a statutory right to be present at and participate in a hearing on any motion. K.S.A. 22–3208(7). “K.S.A.1998 Supp. 22–3405, as well as the Sixth Amendment's Confrontation Clause and the Due Process Clause of the Fourteenth Amendment, require the defendant's presence at every critical stage of a trial. [Citations omitted.]” State v. Bell, 266 Kan. 896, 919–20, 975 P.2d 239,cert. denied528 U.S. 905 (1999).
Turner refers to Rothgery v. Gillespie County, 554 U.S. 191, 212 n. 16, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008), to support the contention that a critical stage entails “proceedings between an individual and agents of the State” with a “trial-like” confrontation where counsel would help the defendant address legal problems and the adversary. The United States Supreme Court made clear an accused is entitled to counsel at a critical stage of a trial; the Court ruled “what makes a stage critical is what shows the need for counsel's presence.” Rothgery, 554 U.S. at 212.
The State counters with State v. Jones, 290 Kan. 373, 228 P.3d 394 (2010). In Jones, the defendant filed a motion to represent himself, which the trial court denied. The Kansas Supreme Court pointed out an accused is entitled to counsel at all “critical stages” of the criminal process, and the right attaches to pretrial proceedings where the State has committed to prosecuting the accused. Jones, 290 Kan. at 379. However, the State claims this caselaw demonstrates only that the defendant has the right to counsel at these stages, not the right to be present.
The State's argument is unpersuasive. Panels of this court have recognized a defendant's absence from a motion hearing could be a critical stage of the trial because the defendant could not object to counsel's continuance. State v. Taylor, No. 104,455, 2011 WL 3795481 (Kan.App.2011) (unpublished opinion) (defendant could not object to counsel's continuance); Howard v. State, No. 106,782, 2012 WL 6217193 (Kan.App.2012) (unpublished opinion) (panel assumed motion hearing was critical stage because State did not contest trial court committed error); but see United States v. Acosta, No. 05–10271, 2006 WL 1722545 (9th Cir.2006) (unpublished opinion) (conference or hearing on legal question not a critical stage of trial).
Despite the State's assertion the hearings were not critical and merely discussions in general and discovery related issues, the district court considered the merits of the motions, even if it did not directly rule on all of them. The three hearings involved issues critical to his case, and he had both a constitutional and a nonconstitutional right to be present. His right to be present was violated. We now must determine the level of the error resulting from Turner's absence at the three hearings.
Was the Error Harmless?
Although Turner's constitutional and nonconstitutional rights were violated, the mere fact of a violation does not automatically rise to the level of reversible error. If the State can prove the error was harmless, Turner is not entitled to relief.
The tests for determining the magnitude of constitutional error and nonconstitutional error are similar, but nevertheless distinct. For nonconstitutional error, the court applies K.S.A. 60–261. Under both tests, the party benefitting from the error bears the burden of demonstrating harmlessness. Constitutional error infringes on a constitutional right, and nonconstitutional error does not infringe on a constitutional right. State v. Herbel, 296 Kan. 1101, 1109–10, 299 P.3d 292 (2013) citing State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011],cert. denied132 S.Ct. 1594, 182 L.Ed.2d 205 [2012] ). Because the State benefitted from the error, it is the State's burden to prove the error was harmless.
When the failure to allow Turner's attendance at the hearings represents both constitutional and nonconstitutional error, “the question becomes whether the party benefiting from the error must demonstrate it meets both standards—when meeting the higher constitutional harmless error standard necessarily means the lower nonconstitutional harmless error standard has been met. To date, this court has not directly answered this question. [Citation omitted.]” Herbel, 296 Kan. at 1110. However, the court in Herbel concluded it was logical to analyze the constitutional error first, as determining this error to not be harmless would result in a reversal. Herbel, 296 Kan. at 1111.
In determining whether the denial of a defendant's constitutional right to be present at all critical stages of the trial is reversible error, this court has applied the same harmless error test as for other constitutional errors. State v. Bell, 266 Kan. 896, 920, 975 P.2d 239 (1999) (citing State v. High, 260 Kan. 480, 485–86, 922 P.2d 430 [1996];State v. Bowser, 252 Kan. 582, 587–88, 847 P.2d 1231 [1993];Crease v. State, 252 Kan. 326, 334, 845 P.2d 27 [1993] ).
The Kansas Supreme Court recently addressed the proper standard for determining constitutional harmless error in Ward, 292 Kan. at 569–570. The court cited Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987 (1967), holding the party benefitting from the error must prove “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., prove[d] there is no reasonable possibility that the error affected the verdict.” Ward, 292 Kan. at 569. The trial court should apply K.S.A. 60–261 to “determine if there is a reasonable probability that the error will or did affect the outcome of the trial in light of the entire record.” Ward, 292 Kan. at 569.
Our Supreme Court has indicated remedial action can be a factor in considering whether an error is harmless. State v. Tully, 293 Kan. 176, 194, 262 P.3d 314 (2011). The court emphasized the appellate court should consider how the district court dealt with the error as it arose, including any attempts and success of remedial efforts, when determining whether the error was harmless. Tully, 293 Kan. at 194. The court in Ward also emphasized the consideration of remedial action by the district court, saying: “Regardless of whether the error is constitutional, one factor to be considered is whether any damaged caused by the error can be or was removed or mitigated by admonition, instruction, or other curative action.” 292 Kan. at 569–70.
Here, the pretrial continuances of hearings did not affect the jury's verdict. It is common when the court realizes a defendant is not present to continue the hearing to another date to allow the defendant to be present. Such a decision could not affect the outcome of the verdict and causes us no concern.
In regards to the pretrial hearings in Turner's absence, where the merits of the motions were discussed, considered, and partially ruled on, the district court cured any defect at the June 24, 2011, hearing. With Turner and his attorney present, the district court reconsidered all motions previously discussed, including housekeeping motions such as Turner's dress for court and the use of shackles. Turner was permitted to make any argument or objection before the court made final rulings on the motions in anticipation of the jury trial. The district court took immediate and appropriate remedial action. Given the prompt and correct remedial action taken by the district court, Turner has not shown how he was prejudiced as he had the opportunity to fully participate during the June 24, 2011, hearing. The error was harmless at both the constitutional and nonconstitutional level. “There is no reasonable possibility that the error affected the verdict.” Ward, 292 Kan. at 569. Did the District Court Violate Turner's Right to Present His Theory of the Case? Standard of Review
When a criminal defendant claims a district judge has interfered with the constitutional right to present a defense, an appellate court reviews the issue de novo. State v. Carter, 284 Kan. 312, 318–19, 160 P.3d 457 (2007) (citing State v. Kleypas, 272 Kan. 894, 921–22, 40 P.3d 139 [2001],cert. denied 537 U.S. 8:4 [2002] ).
Right to Present a Defense
A defendant is entitled to present his or her theory of defense. This right is subject to statutory rules of evidence and procedure, and the defendant's right to a fair trial is only violated if the district court excludes “relevant, admissible, and noncumulative evidence that is an integral part of the defense theory.” State v. Lawrence, 281 Kan. 1081, Syl. ¶ 1, 135 P.3d 1211 (2006); State v. Houston, 289 Kan. 252, 261, 213 P.3d 728 (2009).
Turner's defense consisted of two points:
• McDowell set him up and Turner never actually possessed a cell phone; and
• Lansing Correctional Facility insufficiently investigated the allegations against him.
Turner attempted to show an effort was made by various officers, including McDowell, to coordinate their stories about the incident. Myers, as the lieutenant, reviewed the reports and was the person McDowell called when she found the cell phone. Turner claims the testimony of Myers would have cast doubt on the testimony of McDowell and the other officers. Additionally, Turner attacked the sufficiency of the correctional facility's investigation to support the evidence presented. Turner claims Investigator Speer, the lead investigator of the incident, was “vitally important” to his defense.
A district court may grant a continuance for “good cause shown” under K.S.A. 22–3401. The court's refusal to grant a continuance will not be disturbed on appeal absent a showing of abuse of discretion. We will not find the district court abused its discretion unless we can say the court's action: (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. See Ward, 292 Kan. at 550. Turner has the burden to prove his rights were substantially prejudiced by the decision of the district court. Carter, 284 Kan. at 318. Turner argues the district court should have considered other options, such as Skype or teleconference, before denying Turner's motion outright. Turner claims Speer's testimony was critical to his theory of defense and the district court's denial affected his ability to defend himself.
Turner provides no argument how the trial court abused its discretion. Speer's testimony was not central to Turner's case as he was not a fact witness to the events and only participated in the investigation after the fact. Turner still had all the other fact witnesses to utilize. In reality, Speer's testimony would have been cumulative. The substantial delay the continuance would create was a valid issue for the district court. The district court's denial of Turner's motion for continuance to allow Speer's testimony was not an abuse of discretion.
To secure Myers' testimony, Turner requested a continuance before the trial. The State points out Turner was not diligent in getting Myers subpoenaed and failed to file a motion claiming Myers was a material witness. Turner's lack of proper trial preparation is not good cause for a continuance. The district court balanced its options with Turner's request for a continuance and denied it for cause. The district court ruled Myers was the lieutenant in charge, but not involved, when the event took place.
At the trial, Turner again asked for a continuance to obtain Myers' presence. When a continuance is requested during the trial, the district court needs to weigh the possible prejudice to the parties, the diligence or lack thereof in attempting to secure a witness, the materiality and importance of the probable testimony, and the probability of the witness' appearance at a later date if a continuance is granted. Carter, 284 Kan. at 319 (citing State v. Lackey, 280 Kan. 190, 218, 120 P.3d 332 [2005];State v. Howard, 221 Kan. 51, 55, 557 P.2d 1280 [1976] ).
Turner desired to have Myers testify, but she was not a fact witness to the alleged crime. Turner wanted to use Myers' testimony to demonstrate the officers coordinated their reports and McDowell never found a cell phone. Turner's argument fails to recognize he had all of the fact witnesses present to testify and/or cross-examine to challenge McDowell's description of what happened. Therefore, the district court did not abuse its discretion or interfere with Turner's right to present a defense. Was Cumulative Error Presented? Standard of Review
Turner next claims the combination of errors leading up to and during his trial violated his right to a fair trial.
Cumulative trial errors, when considered collectively, may require reversal of a conviction when “the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” If the evidence against the defendant is overwhelming, no prejudicial error may be found based upon cumulative error. Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011).
Turner claims he did not receive a fair trial due to the cumulative errors, though he fails to show how the errors were cumulative. The State responded there was no cumulative error and the evidence against Turner was overwhelming. Although we found error occurred when three pretrial hearings took place without Turner present, we also found the error was remedied by the district court and was harmless. Turner claims the denial of his requested jury trial continuances was an abuse of discretion. The granting or denial of a continuance is within the sound discretion of the district court, and the district court did not abuse its discretion. Turner has therefore failed to show cumulative error applies to grant the relief he seeks. Were Turner's Rights Violated Under Apprendi v. New Jersey? Standard of Review
The district court used Turner's criminal history under the Kansas Sentencing Guidelines Act to determine his sentence. Interpretation of this Act is a question of law, and is therefore subject to unlimited review. State v. Perez–Moran, 276 Kan. 830, 833, 80 P.3d 361 (2003).
Apprendi Issue
Turner did not object to the guidelines sentence at trial; generally, constitutional grounds asserted for the first time on appeal are not properly before an appellate court for review. See State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 (1996). However, Kansas courts have recognized exceptions to this rule when considering the application of Apprendi v. New Jersey, 530 U.S. 466, 477, 1205 S.Ct. 2348, 147 L.Ed.2d 435 (2000). State v. Gould, 271 Kan. 394, 404–05, 23 P.3d 801 (2001).
Turner admits that in State v. Ivory, 273 Kan. 44, 47, 41 P.3d 781 (2002), the Kansas Supreme Court held that the use of prior convictions to establish a criminal history score does not violate the principles of Apprendi, and our decision is controlled by that precedent. However, Turner includes this issue for preservation of his federal review rights.
Conclusion
Turner had his day in court, and the evidence against him was sufficient for the jury to convict him. The district court's error during the three pretrial hearings was remedied before his jury trial resulting in harmless error. The district court did not abuse its discretion in denying Turner's request to continue the jury trial both before and during the trial. Turner failed to establish cumulative error. State v. Ivory controls Turner's Apprendi argument. We affirm.
Affirmed.