Opinion
No. 106,706.
2012-11-16
STATE of Kansas, Appellee, v. Lawrence ZIMMERMAN, Appellant.
Appeal from Ford District Court; Daniel L. Love, Judge. Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. J. Scott James, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; Daniel L. Love, Judge.
Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. J. Scott James, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Lawrence Zimmerman's direct appeal from his jury conviction of two counts of aggravated assault on a law enforcement officer, one count each of fleeing or attempting to elude a law enforcement officer, possession of marijuana, and reckless driving, and 18 various traffic offenses which occurred during an incident in Ford County where Zimmerman was involved in a police chase involving numerous police officers.
On appeal, Zimmerman claims the State did not present sufficient evidence to convict him of the two counts of aggravated assault on a law enforcement officer, the prosecution committed reversible, prejudicial misconduct during closing arguments, and the court erred when it did not instruct on a lesser included offense.
We find no merit to any of Zimmerman's contentions and consequently affirm the convictions and sentences.
The record and transcript of the jury trial shows the following factual background and legal proceedings.
On May 15, 2010, Ford County Sheriffs Deputy Brandon Hornback saw a vehicle traveling at approximately 60 mph in a 40 mph speed zone near the intersection of Avenue K and Wyatt Earp in Dodge City. After following the vehicle for several city blocks, a second Sheriff's Deputy, Morris Jones, attempted to pull over the vehicle by initiating his lights and sirens. Deputy Jones followed the vehicle through several city blocks with lights and sirens running. He saw the driver commit numerous traffic violations, including failing to stop at a stop sign, excessive speed, and failing to use a turn signal. Deputy Jones testified that “[w]e were reaching speeds in excess of 50 and 60 miles an hour on side streets in residential areas. At those speeds, I don't think that he was having any regard for any other traffic that might be on the streets at that time.” Deputy Jones then lost track of the vehicle when he failed to make a turn at Vine Street.
Deputy Travis Servis intercepted the vehicle approximately two blocks away from where Deputy Jones lost his pursuit. He placed his patrol car in the center of the road with all his emergency equipment turned on, hoping that the driver would stop. He testified that the vehicle had ample opportunity to see his patrol car and that as it approached his position, it accelerated toward him. He testified that the suspect's vehicle cleared his patrol car by about 12 inches and that he was concerned that he and the driver could have been greatly harmed if it had made contact.
Deputy Jeff Sharp joined the chase near Comanche Street and Avenue B. He observed the car approaching without headlights and failing to yield to his emergency lights at Vine Street. He also observed and testified to many traffic violations while following the vehicle. Eventually, he was directly behind the suspect's vehicle and at some point, it swerved back toward his patrol car, causing Deputy Sharp to take evasive action to keep his vehicle from being struck. He testified that he was concerned he could have been seriously injured if he had not taken the evasive action to avoid a wreck with the suspect's vehicle.
The officers continued to follow the vehicle through Dodge City as it weaved in and out of traffic and even drove over yards in its attempt to elude capture. Eventually, Deputy Jones was able to get his patrol car in front of the vehicle and gradually slow it down before it entered the highway. The vehicle slowed down, spun out in a ditch, and came to a stop.
The driver of the vehicle, Zimmerman, was taken into custody for numerous traffic offenses, including fleeing, eluding, reckless driving, and aggravated assault of law enforcement officers.
The case proceeded to a jury trial. The jury viewed several different videos from the dashboard cameras in the patrol cars involved in the chase. The jury heard from all the officers involved who testified as has been set forth in the factual scenario.
The defendant also testified. He minimized his actions and said he did not intend to harm the law enforcement officers but did make all of the movements of his vehicle as was testified to by the officers.
Zimmerman did not object to any of the proposed instructions and did not request any lesser included offense instruction during the instruction conference.
After the jury retired but prior to the verdict being returned, the prosecutor suggested that because in the defendant's closing argument it had been argued the manner in which Zimmerman had used his vehicle it did not qualify as a deadly weapon, a lesser included instruction for assaulting a law enforcement officer should be given. The court asked the defendant's counsel whether he had an opinion on the matter, to which Zimmerman's counsel replied, “No, not really, I will let the court decide.” There were some comments between the court and both counsel about whether the vehicle was a deadly weapon, but the jury reached a verdict before the court could decide whether the instruction should be given.
The jury found Zimmerman guilty of the two counts of aggravated assault of a law enforcement officer, specifying that the officers were Jeffrey Sharp and Travis Servis. Zimmerman was also found guilty of fleeing or attempting to elude a law enforcement officer, possession of marijuana, reckless driving, and 18 traffic offenses. Zimmerman was sentenced to 63 months in prison and 24 months' postrelease supervision and fined $10 for each traffic offense.
Zimmerman filed a timely appeal.
On appeal, Zimmerman first argues that there was insufficient evidence for the jury to convict him of the two counts of aggravated assault of a law enforcement officer. Zimmerman's only argument is that the State was required to show that he possessed the general intent to place another person in reasonable apprehension of immediate bodily harm. He argues “mere recklessness is not enough” and the facts of the case show that he did not have the intent to hurt anyone.
“ ‘ “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.” ‘ “ State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983); see also State v. Naramore, 25 Kan.App.2d 302, 322–23, 965 P.2d 211,rev. denied 266 Kan. 1114 (1998) (uncontroverted expert testimony that defendant physician's treatment was within reasonable health care protocols insufficient to uphold murder and attempted murder convictions).
A verdict may be supported by circumstantial evidence, if such evidence provides a basis from which the fact-finder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). “A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deductible therefrom.” McCaslin, 291 Kan. at 710; see also State v. Murray, 285 Kan. 503, 536–37, 174 P.3d 407 (2008) (discussing entirely circumstantial evidence and impermissible inference stacking).
Zimmerman's sole argument is that the State failed to prove that he had the intent to hurt someone and that careless, reckless behavior is not enough to prove aggravated assault on a law enforcement officer. He cites to State v. Hawkins, 40 Kan.App.2d 10, 14–15, 188 P.3d 965 (2008), rev. denied 287 Kan. 767 (2009), for the principal that the “defendant must possess the general intent to place another person in reasonable apprehension of immediate bodily harm” to convict a defendant of assault. The court in Hawkins also states that “ ‘mere recklessness is not enough.’ “ 40 Kan.App.2d at 16. Zimmerman's only citation to the record for support is Deputy Sharp's testimony that he did not know for sure if Zimmerman saw the officers chasing him, but that he would speculate that he probably did see the flashing lights of the patrol cars chasing him.
Deputy Shark's testimony has nothing to do with the state of Zimmerman's mind as he fled from the police, but only with refusing to give a speculative answer. This single statement in no way improperly limits the officers' testimony of a chase in which they were placed in immediate apprehension of bodily harm.
Zimmerman also mentions that the State said he acted recklessly and that reckless behavior is not enough to prove aggravated assault. It is true that the prosecutor did say that Zimmerman's “actions were reckless and could have hurt people very easily.” But Zimmerman ignores the fact that he was also charged with reckless driving and the State had to prove the reckless element for that charge as well.
The transcript of the jury trial reveals that all of the officers involved in the chase testified that they were placed in fear of immediate harm by Zimmerman's actions. The jury also saw the chase captured by multiple angles from every patrol car involved in the pursuit. They could see Zimmerman actively trying to avoid capture and swerving toward the officers' patrol cars. When the evidence is viewed in a light most favorable to the State, a rational fact-finder could have certainly found that Zimmerman intended to place the officers in immediate, reasonable apprehension of bodily harm as is statutorily required. There was ample substantial competent evidence presented to support the convictions of the two counts of aggravated assault of the two law enforcement officers.
Zimmerman next contends the prosecutor committed prosecutorial misconduct during his argument to the jury. He claims the prosecutor argued the law incorrectly by stating that reckless or careless conduct was sufficient to convict him of aggravated assault of a law enforcement officer beyond a reasonable doubt. He further alleges that on numerous occasions the prosecutor argued his own personal opinion.
A claim of prosecutorial misconduct based on comments made during voir dire, opening statements, or closing arguments which are not evidence will be reviewed on appeal even when a contemporaneous objection was not made at the trial level. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). A contemporaneous objection must be made to all evidentiary claims—including questions posed by a prosecutor and responses to those questions—to preserve the issue for appellate review. 288 Kan. at 349; see K.S.A. 60–404.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. McCaslin, 291 Kan. at 715.
In the second step of the two-step analysis, the appellate court considers three factors: “ ‘(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, [22], 17 L.Ed.2d 705, 87 S.Ct. 824 (1967) (conclusion beyond a reasonable doubt that the error [would have] changed the results of the trial), have been met.’ [Citation omitted.]” McCaslin, 291 Kan. at 715–16; see State v. Ward, 292 Kan. 541, Syl. ¶¶ 5–6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Zimmerman's first allegation, that the prosecutor committed misconduct when he told the jury that reckless or careless conduct was sufficient to convict beyond a reasonable doubt, is not supported by the record on appeal. He did not provide a citation and after combing through the trial transcript, such a statement reference cannot be found. This allegation fails for lack of a factual foundation.
Next, Zimmerman alleges the prosecutor committed misconduct by arguing his own personal opinion on “numerous occasions.” Again, without specific citation to the record, the only instances we can locate to substantiate this argument is when the prosecutor said, “I don't know that he did mean to hurt anyone. I don't think he cared. But in any event that is what he stated to you on the stand. Again, there is not an element that he meant to hurt anyone.” This was obviously in response to Zimmerman's testimony at the end of his direct examination when he stated that his “intentions weren't to harm anybody.” The better practice would be to avoid using the personal pronouns such as “I don't think” and “I don't know,” but it does not amount to an attack on Zimmerman's credibility or commenting on facts not in evidence. See State v. Huerta–Alvarez, 291 Kan. 247, 262–64, 243 P.3d 326 (2010) (prosecutor commenting on facts not in evidence and credibility of witness); State v. Anthony, 282 Kan. 201, 210, 145 P.3d 1 (2006) (prosecutor commenting on defendant's credibility). This allegation does not fall outside the wide latitude prosecutors are allowed in discussing the evidence or testimony.
Zimmerman also takes issue with the prosecutor, stating that he was “surprised that he [Zimmerman] testified.” The full quote during closing is as follows:
“The defendant, surprisingly, did testify in this case. You got to hear his version of the story. I don't know, I cannot make sense of the rationale that he explained as far as why he was justified in running from the police, but he did admit to running from the police and did say that is what he said.”
This comment referred to Zimmerman's illogical testimony that Officer Sharp should have arrested him earlier when he saw him at a convenience store before he had committed any violations. Zimmerman admitted he could not identify any crime he had committed at that time to give the officer a valid reason to arrest him.
This statement by the prosecution is merely in response to an unusual statement by the defendant. It does not comment on Zimmerman's credibility and was a fair comment to be made.
Zimmerman says it was misconduct for the prosecutor to state that he could have been charged with more crimes. The only comment one can find to justify this argument is where the prosecutor stated in closing, “His actions were reckless and he could have hurt people badly. He is fortunate that he doesn't have other charges for actually hurting someone.”
This is not an argument that Zimmerman could have been charged with more crimes in this case, but merely a hypothetical statement that Zimmerman is fortunate that his actions did not result in anyone being physically harmed. Zimmerman fails to point out how he was prejudiced by this argument. It does not pass the first test of prosecutorial misconduct.
Finally, Zimmerman contends the prosecution improperly made an “appeal to community interests” but fails to specify which statement contained this prohibited argument. We are forced to assume that it may refer to the prosecutor's final argument where he was arguing the officers were put in a reasonable fear of harm as required by Instructions 6 and 7 relating to the charge of aggravated assault of a law enforcement officer. The prosecutor said:
“Most importantly, of course, is the agg. assault charges. Again the question is were they put in reasonable fear of harm. I guess that I don't see how the argument can be persuasive at all.
“Again we hold our law enforcement officers to a higher standard. We expect them to put themselves in danger, to secure our roadways, to secure our property, to help us if there are violent crimes occurring, and sometimes they are going to be put in danger. They may have some fear about the situation, but they are not able-they have to just swallow it at the time and move forward with what they are doing. That is their duty to do that. So, you know, we're not holding out these charges as far as they are in reasonable apprehension of fear. It has got to be more fear than a normal person would feel in that situation. Just imagine any of yourselves, you are in a patrol vehicle in the place of these officers, whether or not you would have felt like you were afraid of being struck. It was obviously 45 or 50 miles an hour that Mr. Zimmerman went by Deputy Servis somewhere between 11 to 14 inches.
“Well I would think, use your common sense, whether any of you would feel like that was a situation where you would be concerned that you'd be harmed.”
This is not an improper community interests argument. Zimmerman makes no persuasive argument as to how he was prejudiced by this comment. The prosecutor was not arguing the jury should convict Zimmerman because it was obligated to protect police officers. In fact, the prosecutor seemed to suggest that law enforcement officers had to anticipate and be willing to be placed in more danger than ordinary citizens before a conviction of improper action against them was justified. This was not an improper argument no matter how it is construed or viewed.
Finally, on appeal, Zimmerman argues the district court erred by not including the lesser included instructions on the aggravated assault charges. He contends these instructions should have been given even though the evidence in their support was weak or inconclusive.
As we set forth in the factual and procedural statement, Zimmerman did not present any such proposed instruction to the court before the jury was instructed and did not object to any of the instructions which were given.
This argument is governed in part by the provisions of K.S.A. 22–3413(3), which states:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime 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.” (Emphasis added.)
We have further held that “[a]n appellate court reviewing a district court's giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); see K.S.A. 22–3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” Martinez, 288 Kan. at 451–52.
In this case, there was never a lesser included offense instruction which was proposed by Zimmerman. As we earlier stated in the factual and proceedings portion of this opinion, Zimmerman's counsel argued to the jury that because Zimmerman was driving slower than the officers opined and not as close to them as they stated, the vehicle was not really a “deadly weapon” as is statutorily required and as set forth in the instructions.
Well after the jury was deliberating, the prosecutor suggested to the court that because of Zimmerman's argument, a lesser included instruction should now be given. The court was not convinced. The court asked Zimmerman's counsel if he had an opinion and Zimmerman's counsel replied, “No, not really, I will let the court decide.” At this point, it appears Zimmerman and his counsel were comfortable with the instructions the court had given.
However, a further conversation between the court and counsel occurred in which the judge said:
“Here we are talking about a full-sized automobile coining directly at three officers or very nearly directly at. And I think that it is clear that, when there is an accident involving two automobiles that hit head on, there is just an extreme likelihood there is going to be extreme damage and likely very substantial injuries.
“And I think because of the knowledge that we all have of vehicles, it is taking a little bit of work to come up with a scenario where you could look at this automobile coming at someone and yet it being simple assault as opposed to aggravated assault.
Zimmerman's counsel responded that on two occasions the vehicle was directly coming head on toward the law enforcement officer and on one occasion Zimmerman's vehicle, while making evasive action, had almost come to a complete stop which would justify the jury in finding it was not necessarily a deadly weapon.
The conversation continued briefly without a conclusion or a ruling when the parties were informed by the bailiff that the jury had reached a verdict.
We hold that Zimmerman's argument on appeal fails for various reasons. First, it was not raised before the jury retired as is required by K.S.A. 22–3413(3). Zimmerman never raised any objection as to the instruction and never contended affirmatively even during the discussion after the jury retired that any lesser included crime instruction should be given. This could well be a strategic play by the defense for a not guilty verdict based on the jury making a factual determination that the vehicle was not a dangerous weapon.
Finally, we agree with the trial judge that based on all the testimony there was no real possibility of there being evidence which would reasonably justify an instruction of assault. See State v. Kirkpatrick, 286 Kan. 329, 334, 184 P.3d 247 (2008). The failure to give an instruction which was never requested by the defendant was not clearly erroneous and there is no reasonable possibility the jury would have reached a different result based on the quick verdict and facts that did not justify any instructions other than the ones given.
Affirmed.