Opinion
111,098.
02-27-2015
STATE of Kansas, Appellee, v. Johnny Ray DAVIS, Appellant.
Joel Rook, of Kansas City, for appellant. Adam Y. Zentner, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Joel Rook, of Kansas City, for appellant.
Adam Y. Zentner, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Johnny Ray Davis appeals from his conviction by a jury of the class A misdemeanor of driving while suspended, third or subsequent offense. Davis raises numerous arguments on appeal, but we find no error and affirm the conviction.
Factual and Procedural Background
Davis was originally charged in municipal court with driving while suspended (DWS), third or subsequent offense, a class A misdemeanor. The case was thereafter dismissed and refiled in the district court. Counsel was appointed for Davis, and a jury trial was scheduled.
On August 14, 2013, 2 days before the jury trial, Davis requested that the district court authorize his defense counsel, Benjamin Casad, to give him a copy of the police reports and narratives in his possession. After inquiry, the district court denied the request.
Davis then requested that he be allowed to proceed pro se. After engaging in a colloquy with Davis, the district court determined that Davis' decision to represent himself was voluntarily and knowingly made and granted the request. The court also directed the State to produce discovery for Davis before the end of the day.
On August 16, 2013, a jury trial was conducted in the district court. The State called Sergeant Chris Nicholson of the Leavenworth Police Department as its sole witness, who testified as to his actions and observations on April 11, 2013, which led to the arrest of Davis. The State also admitted into evidence a video from the camera in Nicholson's patrol car. Davis called Charles Dalton as his only defense witness. Davis did not testify.
The jury found Davis guilty of DWS. The district court announced its intention to proceed directly to sentencing, but Davis said he was not ready and would like to speak to an attorney. Although the court did not specifically grant Davis' request, the sentencing was continued until August 21, 2013, in order for the court to examine Davis' certified driving record. The court did advise Davis that he would have 14 days after sentencing to file a notice of appeal and also advised Davis that “if you want to talk to Mr. Casad, you should get with him right away as to any post-trial motions.”
On August 21, 2013, Davis appeared pro se for the sentencing and informed the court that he had not had a chance to speak with Casad. The court proceeded to sentence Davis to 1 year in the county jail and imposed a $1,500 fine.
On August 30, 2013, Davis filed a pro se notice of appeal and a pro se motion for new trial alleging (1) that his Fifth Amendment due process rights were violated and that he was deprived of the Sixth Amendment right to effective assistance of counsel; (2) he was deprived of a personal copy of discovery unless he proceeded pro se; and (3) he was deprived of standby counsel to assist him during the jury trial.
On September 5, 2013, Davis supplemented his motion for new trial with an additional claim that the evidence presented at trial was insufficient to support the jury verdict. On September 17, Davis filed a pro se motion to dismiss the complaint alleging “illegal jurisdiction of prosecution municipalities.”
On September 18, 2013, the district court conducted a hearing on Davis' pro se motion for new trial. After attempting to argue his motions, Davis requested that the court appoint counsel to assist him with his posttrial motions. Casad was reappointed by the court for this purpose. On October 2, 2013, the court conducted a second hearing on Davis' various motions, this time with Casad present as defense counsel. The court reheard and ultimately denied the motions and also refused a request to resentence Davis, finding that Davis had not requested that counsel be appointed for sentencing but only for posttrial motions.
Davis filed timely notice of appeal. Additional facts will be discussed as necessary to address the issues presented.
Failure to Appoint Standby Counsel
Davis' first argument on appeal is that the district court impermissibly denied his request for standby counsel at his jury trial and sentencing hearing.
On August 14, 2013, when the district court denied Davis' request for personal copies of all discovery in the hands of his appointed defense counsel, Davis moved that he be allowed to proceed pro se. The court asked Davis a number of questions regarding his decision to represent himself and advised him that it was his right to do so. The court also warned Davis of the risks of self-representation and told him he would receive no assistance from the judge or the prosecutor during his trial. The court inquired about Davis' education and ascertained that he was a 52–year–old high school graduate with some vocational training. The court inquired as to Davis' experience with the legal system, and Davis responded that he had been involved in “many more [cases] than [he'd] like to admit.” He estimated that he had about 20 DWS convictions and was fully aware of the potential penalties for another conviction. Davis assured the court that he was clear headed, he would prepare himself for the trial, and that he was willing to take the chance to “lose it on my own.”
The court found that Davis' decision was made voluntarily, but it also told Davis that he could change his mind at any time if he wanted assistance of counsel. The court then allowed Casad to withdraw and excused him from appearing at the jury trial. Davis did not request standby counsel; nevertheless, the court informed Davis that standby counsel would not be appointed because it was not a complicated matter and the issues were relatively simple. Davis did not object to the court's statement.
Davis represented himself at the trial, and after the jury's verdict was read, the court announced its intention to proceed to sentencing. Davis said he was not ready for sentencing, telling the court that since “I didn't have no standby attorney appointed in this ... matter,” he wanted to speak with Mr. Casad “concerning some options and some other things.” The court advised that Davis would still have a right to file posttrial motions, to which Davis responded, “That's fine, sir, then proceed.”
When Davis returned for sentencing, he seemed to argue that he had not had a chance to review his certified driving record and again referred to the lack of standby counsel. Davis now indicated that he had accrued more than 50 DWS/Habitual Violator convictions and should have received his driving record as discovery. The record had, in fact, been admitted into evidence even though it was not presented to the jury. Upon sentencing Davis, the court reappointed Casad to represent Davis on other posttrial motions.
The appointment of standby counsel for a pro se litigant rests within the sound discretion of the trial court. State v. Matzke, 236 Kan. 833, 837, 696 P.2d 396 (1985). A judicial action constitutes an abuse of discretion if the 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 State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
The State correctly points out that a pro se defendant does not have a right to standby counsel, citing the Supreme Court's statement in State v. Holmes, 278 Kan. 603, 620, 102 P.3d 406 (2004), that “[w]hile a party has a right to represent himself or herself or to be represented by counsel, he or she does not have the right to a hybrid representation.”
The district judge noted that Davis was unusually proficient in the law for a lay person and observed that “I've seen lawyers who did not do nearly as good as you in a courtroom in the trial of a case of this type.” Since Davis had not requested standby counsel for the trial, the record supports a determination that the district court did not abuse its discretion in declining to sua sponte make such appointment.
Davis, however, goes on to argue that the district court impermissibly denied his request for standby counsel at his sentencing hearing. First of all, Davis did not unequivocally request appointment of standby counsel at his sentencing. Although he mentioned a desire to consult with Casad regarding his options, he agreed to proceed after the court explained his rights to file posttrial motions and appeals. In any event, even if his ambiguous statement could be construed as a request for standby counsel, we note again that Davis has no right to standby counsel. He was an experienced criminal defendant facing sentencing for a single misdemeanor charge of which he had been convicted many times before. He was well aware of the penalties he faced and had previously so advised the court. Proceeding to sentencing did not compromise his right to file posttrial motions or appeals.
Davis does not argue on appeal that his statement regarding wanting to speak to an attorney should have been construed as a request for appointment of counsel to represent him. He argues only that he should have been appointed standby counsel. We find that the district court did not abuse its discretion in declining to make such an appointment.
The Certified Driving Record
Davis next contends that the district court erred in admitting into evidence a certified copy of his driving record. However, he candidly acknowledges that the issue is moot, since the driving record was never referred to at trial or shown to the jury. The State agrees that the issue is moot.
Thus, since there exists no real controversy involving the legal rights of any party to the case, this issue is dismissed as moot.
Sufficiency of the Complaint
For the first time on appeal, Davis challenges the sufficiency of the complaint against him based on his interpretation of the word “highway” as used in K.S.A.2014 Supp. 8–262. While it is questionable whether Davis has even preserved this issue for appeal, his challenge has no merit.
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. See State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
Davis was charged with DWS (third or subsequent conviction) in violation of K.S.A.2014 Supp. 8–262(a)(1), (c). Davis contends that K.S.A.2014 Supp. 8–262(a)(1) only applies to state highways and not to city streets. Nicholson testified that Davis was driving while suspended within the city of Leavenworth on Kiowa Street. Davis concludes that because he was driving on a city street at the time of the alleged violation, he did not violate K.S.A.2014 Supp. 8–262(a)(1).
Kansas statutes directly contradict Davis' claim that K.S.A.2014 Supp. 8–262(a)(1) does not encompass city streets. As applicable pursuant to K.S.A.2014 Supp. 8–234a(b), K.S.A. 8–1424 defines the word highway as “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” The city street on which Davis was driving clearly falls within the statutory definition of a “highway” for purposes of K.S.A.2014 Supp. 8–262. Therefore, Davis' challenge to the sufficiency of the charging document must fail.
Subject Matter Jurisdiction
Davis next argues that the district court lacked subject matter jurisdiction over his misdemeanor. He suggests that the dismissal of the charge originally filed in municipal court and the subsequent refiling in the district court violated his due process rights by depriving him of the “opportunity to first try the case in municipal court, then appeal it to district court.”
When the district court heard Davis' pro se motion to dismiss, Casad was present as appointed defense counsel. When pressed by the district court, Casad acknowledged that it was not mandatory that the DWS case be filed first in municipal court. On appeal, Davis fails to cite any authority supporting his contention, nor does he make any attempt to distinguish this court's decision in State v. Frazier, 12 Kan.App.2d 164, 165–67, 736 P.2d 956 (1987). In Frazier, this court concluded that K.S.A. 20–310 (which outlines the jurisdiction of Kansas district courts) and K.S.A. 12–4104 (which outlines the jurisdiction of Kansas municipal courts) grant concurrent jurisdiction over offenses that constitute violations of both a city ordinance and a state statute. Frazier, 12 Kan.App.2d 164, Syl. ¶ 1. DWS is such an offense.
The dismissal of the original municipal court complaint and refiling it in district court did not violate Davis' due process rights.
Discovery Requests
Davis next contends that the district court erred in denying his request for personal copies of discovery which his attorney had obtained from the State's files pursuant to a reciprocal discovery agreement. Casad advised the court that he had gone over all the materials, consisting of a 1 1/2 page narrative and a standard offense report consisting of a couple of pages, with Davis in preparation for trial.
Since Davis' claim involves interpretation of a statute, K.S.A.2014 Supp. 22–3212, our review is unlimited. State v. Marks, 297 Kan. 131, 145, 298 P.3d 1102 (2013).
Davis acknowledges the Supreme Court's holding that “[a] defendant's right to assistance in his or her defense does not translate to a constitutional right to personal copies of discovery, particularly when that discovery was already provided to his or her attorney.” 297 Kan. at 149. He relies on the holding in Marks that the plain language of K.S.A.2014 Supp. 22–3212 required that the defendant receive personal copies. See 297 Kan. at 147–48. What Davis fails to note is that the Supreme Court found that the error of the district court in denying Marks the requested copies was a harmless error because Marks was unable to articulate how his participation was actually impeded when he had the opportunity to go over the information with his attorney. See 297 Kan. at 148–50. Similarly, Davis reviewed the materials with Casad and he was unable to articulate any compelling reason why his review of the documents, consisting of a mere 3 or 4 pages, was insufficient. Any error by the district court in denying his request was harmless.
In his brief, Davis suggests in a single conclusory sentence that had he received personal copies of the discovery, he would not have been “forced” to proceed pro se. A point raised incidentally in a brief and not argued therein is deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013). In any event, the record clearly establishes that, after a full and adequate colloquy with the district court, Davis chose to represent himself and cannot be heard to claim that he was “coerced” into self-representation as the only means to access discovery materials.
Sufficiency of the Evidence
Davis' final argument is that the district court erred in denying his supplemental motion for a new trial based on a claim of insufficient evidence.
The district court held a hearing on the motion at which Davis appeared pro se. In deference to Davis, the court conducted a second hearing on Davis' various posttrial motions with Casad present as defense counsel. The court found that sufficient evidence had been presented for the case to be submitted to the jury.
When the sufficiency of evidence is challenged in a criminal case, this court reviews all the evidence in the light most favorable to the prosecution and must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). 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. 299 Kan. at 525. It is only in rare cases where the testimony is so incredible that no reasonable factfinder 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).
Nicholson testified at trial that he recognized the Camaro as belonging to Davis, but he could not initially identify the driver, who was of medium build and was wearing a hood. Nicholson then proceeded to park his unmarked patrol car up the street from Davis' residence, and shortly thereafter the Camaro arrived and parked. Nicholson observed a person of thinner build, later identified as Dalton, exit the passenger side of the Camaro and walk across the street. The driver remained in the car. Nicholson continued to observe the vehicle although his vision was obscured from time to time by passing vehicles. Eventually, Nicholson observed that the Camaro was empty and observed Davis, wearing a green trench coat and a gray hood, standing next to the driver's door. A video recording made from a camera in Nicholson's patrol car documented the following events: Dalton came out of the nearby residence and walked toward Davis, who met Dalton in the middle of the street. As the men moved back toward the Camaro, Davis placed something into Dalton's extended hand and proceeded to the passenger side. Dalton then used what appeared to be the keys passed from Davis to open the driver's side door. This video was played to the jury.
Nicholson saw the faces of both men while they were moving in the street. He testified that he has known Davis for most of his 9 years on the Leavenworth Police Department and recognized him by sight.
Dalton testified that he had access to Davis' Camaro and had been driving it all day. He also testified that he wore “hoodies.”
Davis contends that because Nicholson could not initially identify him as the driver of the Camaro and because Dalton testified that he had been driving the vehicle all day, no reasonable factfinder could have found Davis guilty of DWS. It is the jury's prerogative to determine the credibility of witnesses, the weight to be given to the evidence, and the reasonable inferences to be drawn from the evidence. State v. Burton, 35 Kan.App.2d 876, 882, 136 P.3d 945, rev. denied 282 Kan. 792 (2006). Davis is simply asking that we encroach upon that prerogative, which is not the function of this court.
When all the evidence is considered in the light most favorable to the State, the jury could reasonably have concluded that the medium-build man in the gray hoodie whom Nicholson initially observed driving the Camaro was, in fact, Davis. The district court did not err in denying Davis motion for new trial.
Affirmed in part and dismissed in part.