Opinion
No. 110,418.
2014-11-7
STATE of Kansas, Appellee, v. Craig L. GOOCH, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge.Joanna Labastida, of Kansas Appellate Defender Office, for appellant.Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Craig Gooch was convicted by a jury of rape, aggravated kidnapping, aggravated robbery, aggravated sexual battery, aggravated burglary, aggravated intimidation of a victim or witness, criminal threat, interference with law enforcement, and vehicular burglary. The district court sentenced him to 712 months' imprisonment. Gooch raises three arguments on appeal: (1) that the district court erred in denying his request for a new attorney; (2) that the district court violated his right to a fair trial by denying his request for a trial continuance; and (3) that certain statements made by the prosecutor during closing argument constituted reversible misconduct.
We find no reversible error concerning the last two issues raised by Gooch. However, because the district court conducted no inquiry into Gooch's claim that he was dissatisfied with his lawyer, we must remand to the district court with directions to hold a new hearing on Gooch's request for a new attorney.
Factual and Procedural Background
We will review the facts in detail. On May 11, 2012, then 32–year–old M.C.H. drove her gold minivan to the local Dillons grocery store at 8 a.m. She parked in the store's southwest parking lot, locked her minivan, and went inside the store. After M.C.H. purchased her groceries, she pushed them in a shopping cart out to her minivan. She unlocked the vehicle and put her groceries inside. She walked back inside the store to return her cart. M.C.H. then returned to her minivan and drove out of the parking lot.
Less than one block away from the store, M.C.H. looked in her rearview mirror and saw a man, later identified as Gooch, in the back of her minivan. Seconds later, Gooch jumped in the front passenger seat and grabbed hold of M.C.H.'s ponytail. He told her to drive someplace where no one would see them because he was going to rape her. Gooch repeatedly told M.C.H. that he had a gun and that he would kill her. M.C.H. testified that she was frightened and did not know what to do. She was crying and asked Gooch not to hurt her. Gooch held M.C.H.'s ponytail so tightly that she could not turn her head to see if it was safe to cross an intersection. Though M.C.H. did not see a gun, she believed that Gooch had one.
M.C.H. told Gooch that she did not know where to go. She told him that she did not live far away and that no one would be at her home. M.C.H. testified that she thought she might be able to convince Gooch to just take her vehicle, and she hoped that one of her neighbors would be outside and see that something was wrong. Gooch told M.C.H. that if anybody was at the house, he would kill her and everyone else present. As M.C.H. drove, Gooch kept a firm hold on her ponytail with one hand and began fondling her breasts over her T-shirt with his other hand. He then put his hand inside of her sweatpants and underwear and began rubbing her vagina.
When they arrived at the house, M.C.H. told Gooch to take her vehicle or whatever he wanted, but just not to hurt her. Gooch turned off the ignition and pulled the key out. M.C.H. thought about running if he let go of her, but she was afraid that Gooch would shoot her if she ran. Gooch reached over M.C.H., opened the driver's side door, and climbed out over her. He told M.C.H. to get out of the vehicle, act like nothing was wrong, and stop crying. As they walked up to the house, M.C.H. saw that none of her neighbors were outside.
Gooch and M.C.H. entered the house and Gooch shut the door behind them. Gooch still had a hold on M.C.H.'s ponytail and pushed her over to the couch. M.C.H. was crying and asking Gooch not to “do this.” Gooch pulled off M.C.H.'s shirt and unfastened her bra as she cried and tried to cover herself. He pushed her onto the couch and removed her sweatpants and underwear. Gooch held M.C.H.'s hair with one hand, and alternated between touching M.C.H.'s breasts and rubbing her vagina with the other. M.C.H. tired to keep her legs closed, but Gooch penetrated her vagina with his finger. Gooch became angry with M.C.H. for crying and hit her on the side of her head.
Throughout the ordeal, Gooch continued to tell M.C.H. that he had a gun and would kill her. M.C.H. testified: “He's just telling me how stupid I am, telling me I'm a stupid bitch, that I just went to the store to get groceries, that he was going to rape the shit out of me.” However, Gooch then told M.C.H. that he was not going to rape her, but was “just going to nut on” her face. He pulled his erect penis out of his pants, pulled M.C.H. to the side of the couch, and began to masturbate. M.C.H. closed her eyes and was crying. Gooch ejaculated on M.C.H.'s face.
After allowing M.C.H. to clean up and get dressed, Gooch told M.C .H. that she needed to drop him off at the store where she had picked him up. As they walked out of the house, Gooch let go of M.C.H.'s hair and put his arms around her as they walked toward the minivan. This time, one of M.C.H.'s neighbors, Santalena Caudillo, saw M.C.H. come out of the house with Gooch. Caudillo later testified that M.C.H. looked very ill, as though she were ready to vomit. Caudillo yelled out, “Hey,” but M.C.H. did not respond. Caudillo watched as Gooch opened the door to the minivan, M.C.H. got into the driver's seat, and Gooch climbed over her into the passenger seat. Caudillo approached the minivan, waiving her arms and calling out M.C.H.'s name. When M.C.H. drove away without acknowledging her, Caudillo ran to her home and called 911.
M.C.H. drove Gooch back to the Dillons store where she had shopped earlier that morning. When M.C.H. pulled into the Dillons parking lot, she asked Gooch if he was going to get out. He told her to keep driving, so she went through the parking lot. Gooch instructed her to take several right turns and finally to stop when they reached an alley. Gooch asked, “[Y]ou're just going to go straight back and call the police, aren't you?” M.C.H. told him that she would not. Gooch told her that if she called the police, he would come back to kill her and her family. Before getting out of the van, Gooch went through M.C.H.'s purse and took $16 from her wallet.
After Gooch got out of the vehicle, M.C.H. tried to watch him to see where he went. She did not know how long she sat there, but said it seemed like forever. The next thing M.C.H. remembered was being back at her house. When she pulled up in her driveway, M.C.H. saw Caudillo. M.C.H. was crying, and rolled down her window and waved Caudillo over to her car. Caudillo told M.C.H. that she had called the police and they were on their way. M.C.H. sat with Caudillo on her front porch until officers arrived. At times, M.C.H. was hysterical and her speech unintelligible as she tried to tell Caudillo what happened. At other times, she remained calm enough to describe the day's events.
Law enforcement officers arrived on the scene quickly after receiving Caudillo's report of a possible kidnapping. M.C.H. underwent a sexual assault examination at a local hospital. The sexual assault nurse examiner (SANE) collected swabs from M.C.H.'s face and neck, which later were submitted to the Kansas Bureau of Investigation (KBI) lab for DNA testing. M.C.H. told the SANE that the side of her head was very tender from being struck. When she pulled her hair back, quite a bit of hair came out in her fingers. The soreness to M.C.H.'s head lasted several days.
Police detectives secured M.C.H.'s home and began collecting potential evidence. They observed a stain on the arm cushion of the couch that appeared to be semen, so they collected the entire arm cushion to submit for forensic analysis. Other detectives went to the Dillons where M.C.H. had shopped that morning and began reviewing the store's surveillance video. The video footage confirmed that Gooch had walked from a house near the store and purchased a package of cigarettes at 7:57 a.m. Gooch left the store at 7:59 a.m. and walked back to the house. He returned to the Dillons parking lot at 8:09 a.m. Gooch first approached another woman, later identified as Lindsay Magallanes, as she was loading her minivan. Magallanes later testified that she did not know Gooch and had not invited him over to chat. At 8:15 a.m., Magallanes told Gooch that she had to go inside the store to pick up a cake, at which point he walked away. After Magallanes went inside the store, Gooch unsuccessfully attempted to open the doors of her vehicle.
The video footage showed that at 8:19 a.m., M.C.H. had walked out to the parking lot and was unloading her groceries in her minivan. At 8:20 a.m., as M.C.H. pushed her shopping cart back inside the store, Gooch walked toward her minivan. At 8:20 a.m., the video showed a shadowy figure approaching M.C.H.'s minivan. The video showed the figure jump into the back seat through the minivan's hatchback. At 8:21 a.m., M.C.H. returned to her minivan, backed out of the parking stall, and exited the parking lot.
Law enforcement officers were dispatched to the house from which the suspect depicted in the video had walked. The homeowner consented to a search, and police found Gooch sleeping in the front room. He was placed under arrest and taken to the police station. During an interview, Gooch gave detectives the false name of “Dallas Maverick” and said that he lived everywhere. He said that he had gone to Dillons to purchase cigarettes and saw a “home girl” who gave him a ride to another location to purchase crack cocaine. He denied having sexual contact with the “home girl” and said he gave her crack cocaine in exchange for driving him to the drug deal. Gooch also denied going to M.C.H.'s house and said his bodily fluids would not be found on her couch.
A KBI forensic biologist conducted DNA testing on the evidence submitted by law enforcement. The biologist located seminal fluid containing DNA on the arm cushion of M.C.H.'s couch and the swabbing taken from her neck that was consistent with a known sample of Gooch's DNA. The biologist testified that the statistical probability of the DNA coming from a person other than Gooch was 1 in 113 quintillion.
Procedural history
On May 14, 2012, the State charged Gooch with rape, a severity level 1 person felony; aggravated kidnapping, a severity level 1 person felony; aggravated robbery, a severity level 3 person felony; aggravated sexual battery, a severity level 5 person felony; aggravated burglary, a severity level 5 person felony; aggravated intimidation of a victim or witness, a severity level 6 person felony; criminal threat, a severity level 9 person felony; and interference with law enforcement, a severity level 9 nonperson felony. The district court appointed counsel to represent Gooch.
On July 26, 2012, the district court conducted Gooch's preliminary hearing. At the beginning of the hearing, defense counsel, Alice Osburn, asked the district court for a continuance. Osburn informed the district court that she had not had an opportunity to go through the various items of discovery with Gooch that were necessary for proper cross-examination. The district court denied Osburn's request, but agreed to give her 15 minutes to meet with Gooch before the hearing commenced. Gooch immediately stated that he would like the district court to appoint new counsel. The district court denied Gooch's request and instructed him to talk to Osburn. The district court took a 15–minute recess while Gooch met with Osburn in a nearby conference room. The preliminary hearing commenced after the recess and Gooch was bound over for trial.
On September 25, 2012, the district court continued Gooch's trial date at defense counsel's request. At a December 13, 2012, hearing, defense counsel requested another continuance of Gooch's trial date, explaining that she wanted time to go through the discovery evidence. She also indicated that Gooch had an additional witness that she might want to call at trial. Gooch wanted at least a month to “visit with” this witness to ascertain whether he or she would be willing to testify. The State strongly opposed a continuance. Nevertheless, the district court granted the continuance and scheduled the jury trial to commence on January 22, 2013.
On January 22, 2013, the parties appeared before the district court for Gooch's jury trial. Before voir dire began, defense counsel raised several preliminary matters, including a request for another continuance to allow Gooch to locate a witness in his defense, later identified as “Curtis Prebble.” The State opposed a continuance, pointing out that the case had been set for trial three times previously and the defense had sought a continuance each time. This time, the district court denied defense counsel's request for a continuance, finding there was no indication when and if Prebble would be found.
At Gooch's jury trial, the State called M.C.H., various law enforcement officers who investigated the case, the nurse who conducted M.C.H.'s sexual assault examination, and the KBI forensic biologist who tested the physical evidence submitted by police. Gooch testified on his own behalf and his description of the events differed significantly from M.C.H.'s. Gooch testified that after a night of celebrating, he ended up sleeping on the couch at a friend's house. When he woke up, he walked to a nearby Dillons store to buy cigarettes. He returned to his friend's house and slept a little longer until he awoke to the sound of his friend's phone ringing. Gooch answered the phone and spoke to a woman interested in buying drugs. He made arrangements to meet the woman in the parking lot of the Dillons store. The woman told Gooch that she would be driving a gold-colored van, and he told the woman he would be wearing a black and red shirt.
Gooch returned to the Dillons store and saw M.C.H. leave the store with a shopping cart of groceries. M.C.H. loaded the groceries into a gold-colored minivan and walked back to the store to return her cart. Gooch testified that as M.C.H. walked by, she told him to get in her vehicle. Gooch walked to M.C.H.'s minivan and climbed into the back seat through the side door. M.C.H. returned to the vehicle and exited the parking lot. As they drove, M.C.H. told Gooch that she had spent more money at the grocery store than she had planned, and thus did not have enough to pay for the drugs. She told him that she had more money at her house. Gooch asked M.C.H. if she would first drive him to the house of his friend, Prebble, to pick up his belongings. M.C.H. agreed. After Gooch had collected his things at Prebble's house, M.C.H. drove him to her house.
When they arrived, Gooch asked if he could come inside the house for a glass of water. Inside the house, M.C.H. found $6 or $7 and stated that was all the money she had to pay for the drugs. Gooch told her that she could make up the balance by performing oral sex on him, and she consented to do so. M.C.H. asked Gooch not to ejaculate in her mouth, so he ejaculated on her face instead. After the act was complete, M.C.H. went to the bathroom to wash up. When she returned, Gooch was preparing half a gram of crack cocaine for her. M.C.H, looked at the crack with surprise, and told Gooch that she wanted methamphetamine. Gooch did not have any methamphetamine, but told M.C.H. that he could get her some later that day. M.C.H. was angry, but Gooch assured her that if she called him later, he would make it right. M.C.H. drove him back to the area by Dillons and dropped him off at his friend's house where he had spent the night.
After hearing all the evidence, the jury found Gooch guilty of all counts. The district court sentenced him to a controlling prison term of 712 months. Gooch timely appealed his conviction.
Request for New Attorney
Gooch first argues that the district court erred in denying his request for a new attorney without properly inquiring into whether a conflict of interest existed. The State asserts that the district court did not err in denying Gooch's “vague” request made solely on the basis that his attorney failed to secure a continuance of the preliminary hearing.
Gooch's request for a new attorney
Gooch's preliminary hearing was scheduled for July 26, 2012. That morning, Gooch's attorney, Osburn, requested that the district court continue the hearing. Osburn stated that she had been appointed to represent Gooch around the second week of June, but her busy travel and trial calendars had prevented her from reviewing various items of discovery with Gooch. She indicated that this discovery evidence was necessary for proper cross-examination of the witnesses called to testify at the preliminary hearing. The State opposed a continuance, arguing that the defense had been provided with the discovery at issue in early June.
The district court denied the request to continue the preliminary hearing but granted a recess so that Osburn could talk with Gooch before the hearing commenced. The following exchange then took place:
“MS. OSBURN: Judge, Mr. Gooch has been whispering in my ear that he hasn't had an opportunity to tell me his side of the story before today's event. I, if the court would give me leave to sit with him and allow him to do that, if the court is going to deny my request for a continuance.
“THE COURT: I'm going to deny your request. I'll give you 15 minutes to talk with Mr. Gooch.
“THE DEFENDANT: Your Honor, if, if
“THE COURT: No, Mr. Gooch, talk to your attorney.
“THE DEFENDANT: Well, I'd like to appoint new counsel then.
“THE COURT: Mr. Gooch.
“THE DEFENDANT: Yeah.
“THE COURT: Talk to her.
“THE DEFENDANT: I need a new lawyer. That's what I'm telling you, I need a new lawyer because I haven't
“THE COURT: Okay. Your request for a lawyer is denied.
“Officer, take him in the conference room with his attorney. We're in recess for 15 minutes.
“THE DEFENDANT: How can you deny me a new lawyer, Your Honor?”
Gooch's preliminary hearing commenced after the recess. Gooch did not make any further objections regarding his attorney during the district court proceedings.
Has this issue been properly preserved?
As a preliminary matter, the State contends that Gooch is objecting to the district court's treatment of his request for a new attorney for the first time on appeal. The State points out that after the exchange that occurred just before the preliminary hearing, Gooch did not make any further complaints about his attorney. The State concludes that Gooch abandoned the issue and has failed to preserve it for appellate review.
The State fails to cite any authority to support its claim that this issue is not properly preserved. However, we note that in State v. Brown, 300 Kan. ––––, 331 P.3d 797 (2014), our Supreme Court found that the “district court's duty to inquire into a potential attorney/client conflict accrues when the court first learns of the potential conflict and that duty does not decay or dissipate through any inaction on the part of the defendant.” 300 Kan. ––––, Syl. ¶ 5, 331 P.3d at 801. The court stated that “after a defendant has triggered the district court's duty to inquire into a potential attorney/client conflict, the defendant does not thereafter waive his or her right to conflict-free counsel by failing to renew the motion for new counsel periodically throughout the proceedings.” 331 P.3d at 808. Based on the language in Brown, we conclude this issue is properly preserved for appellate review even though Gooch made no complaints about his attorney following the preliminary hearing
The district court erred in failing to inquire into a potential attorney/client conflict
A criminal defendant has a constitutional right to the effective assistance of counsel, but that right does not give a criminal defendant for whom counsel has been appointed the right to choose which attorney will represent him or her. 331 P.3d at 807. “If a defendant seeks substitute counsel, the defendant must show justifiable dissatisfaction with his or her appointed counsel, which can be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant.” 300 Kan. ––––, Syl. ¶ 3, 331 P.3d at 801.
A criminal defendant seeking new counsel must provide an articulated statement of attorney dissatisfaction. Such a statement by the defendant triggers the district court's duty to inquire into the potential conflict of interest. 331 P.3d at 807. “A district court's duty to inquire into a potential attorney/client conflict emanates from its responsibility to assure that a defendant's constitutional right to effective assistance of counsel is honored.” 300 Kan. ––––, Syl. ¶ 5, 331 P.3d at 801.
The district court's refusal to appoint new trial counsel is reviewed using an abuse of discretion standard. 300 Kan. ––––, Syl. ¶ 6, 331 P.3d at 801. 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. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
Gooch contends that the district court denied his request for a new attorney without inquiring as to the problems or potential conflict between him and his attorney. Because he was not afforded an opportunity to explain his request, Gooch asserts that his constitutional right to conflict-free counsel was violated.
Our Supreme Court's decision in State v. Bryant, 285 Kan. 970, 179 P.3d 1122 (2008), supports Gooch's argument. In Bryant, the defendant claimed that the district court had erred in denying his requests for new counsel. 285 Kan. at 985. Our Supreme Court found that in order to determine whether to appoint new counsel, a district court must conduct some type of investigation. 285 Kan. at 991 (citing State v. Sappington, 285 Kan. 158, 169, 169 P.3d 1096 [2007] ). Our Supreme Court held: “Where the trial court becomes aware of possible conflict of interest between a defendant charged with a felony and his or her attorney, the court has a duty to inquire further.” 285 Kan. 970, Syl. ¶ 16.
In Bryant, our Supreme Court found that the district court had satisfied the requirement of inquiring into the potential conflict of interest. At a motions hearing and again at the subsequent sentencing hearing, the district court judge investigated Bryant's claims of poor communication with his attorney by asking open-ended questions to learn all of the defendant's concerns. The district court fully heard the defendant's complaints and fully heard his attorney's responses to those complaints. 285 Kan. at 991.
In stark contrast, the district court here made no such inquiry of Gooch as to the nature or source of his dissatisfaction with his attorney. The district court did not ask Gooch any questions after he asked for a new attorney. In fact, the district court interrupted Gooch as he was about to explain the reasons for his request.
The district court's actions here are comparable to those of the district court in State v. Sharkey, 299 Kan. 87, 322 P.3d 325 (2014). In that case, the defendant filed two pro se motions for new trial based on allegations of ineffective assistance of counsel. 299 Kan. at 90. At a joint motions and sentencing hearing, the trial judge addressed only one of Sharkey's numerous complaints about his attorney and denied the pro se motions. 299 Kan. at 90–91. On appeal, Sharkey claimed that the trial judge erred in denying his pro se motions for new trial without first appointing new conflict-free counsel to assist him in arguing the motions. 299 Kan. at 88–89. Our Supreme Court found that the potential of a conflict of interest in Sharkey's case was apparent. The court concluded:
“Faced with this conflict, the trial judge was required to make an appropriate inquiry into the conflict, and the failure to do so was an abuse of discretion.... [W]hen Sharkey filed the posttrial motions, the judge had a duty to explore the new allegations and determine whether there had been a breakdown in the attorney-client relationship or any other change in circumstances that warranted the appointment of a new attorney.” 299 Kan. at 98.
Similarly, in State v. Stovall, 298 Kan. 362, 312 P.3d 1271 (2013), defense counsel filed two pretrial motions seeking to withdraw because of conflicts of interest with Stovall. The district court denied the motions, forcing the attorney to represent Stovall at trial. The attorney/client relationship deteriorated to the point that all communication ceased, prompting the attorney to file a third motion to withdraw after Stovall's conviction but before sentencing. 298 Kan. at 363–64. The district court denied that motion as well. 298 Kan. at 368. On appeal, Stovall claimed that the district court's denial of defense counsel's motions to withdraw violated his Sixth Amendment right to the effective assistance of counsel. 298 Kan. at 370. Our Supreme Court agreed, holding that the district court's failure to conduct an in-depth inquiry into defense counsel's declared conflicts of interest was an abuse of discretion. 298 Kan. at 372.
Returning to our facts, the State argues that the district court did not inquire about a possible conflict of interest between Gooch and his attorney because Gooch never stated that such a conflict existed. The State asserts that the district court did not abuse its discretion in denying Gooch's vague request for appointment of a new attorney solely on the basis that his attorney had failed to secure a continuance of the preliminary hearing.
The State's attack on Gooch's request ignores the circumstances under which it was made. Gooch's request was only “vague” because the district court did not afford him the opportunity to explain why he wanted new counsel. Perhaps the State is correct that Gooch was simply dissatisfied that his attorney was unable to continue his preliminary hearing, but it is equally possible that Gooch may have alleged that a conflict of interest existed with his attorney or that the attorney/client relationship was deteriorating. Gooch could have asserted any number of reasons that he wanted a new attorney, but the district court interrupted Gooch as he attempted to provide the basis for his request. We conclude the district court erred in failing to inquire into a potential attorney/client conflict.
Remedy
The district court denied Gooch's request for a new attorney without any investigation. This failure to inquire after becoming aware of a potential conflict between Gooch and his attorney constituted an abuse of discretion. Brown, 331 P.3d at 808; State v. Vann, 280 Kan. 782, Syl. ¶ 1, 127 P.3d 307 (2006). Our Supreme Court stated in Vann that, in the absence of a suitable record on appeal concerning an attorney's alleged conflict of interest, the remedy is to remand to the district court for a determination of whether the defendant can establish that the conflict of interest adversely affected his counsel's performance. Vann, 280 Kan. at 792 (quoting State v. Gleason, 277 Kan. 624, 653–54, 88 P.3d 218 [2004] ); see also Brown, 331 P.3d at 808–09.
Thus, the proper remedy in this situation is remand to the district court with directions to hold a new hearing on Gooch's request for new counsel. Gooch must be appointed conflict-free counsel to represent him at the new hearing. The burden will be on Gooch to show justifiable dissatisfaction with his prior counsel, Osburn, “which can be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant.” Brown, 300 Kan. ––––, Syl. ¶ 3, 331 P.3d at 801. If Gooch is able to establish a justifiable dissatisfaction with his prior counsel, then the district court must vacate Gooch's convictions and grant a new trial.
Request for Trial Continuance
Next, Gooch argues that the district court violated his right to a fair trial when it denied his request for a trial continuance. He contends that he showed good cause for the district court to grant the continuance because he needed additional time to locate a key witness to his defense. Gooch asserts that had the district court granted a continuance, he likely would have been able to secure the witness and his testimony would have created a reasonable doubt as to Gooch's guilt. The State counters that the district court did not abuse its discretion in denying Gooch's request for a third trial continuance.
Gooch's request for continuance
On January 22, 2013, the parties appeared before the district court to begin Gooch's jury trial. Before voir dire, defense counsel raised several preliminary matters. First, she requested that the district court grant another continuance to allow Gooch to locate Curtis Prebble, “a material witness” in his defense. Counsel offered the following statement, purportedly written by Prebble:
“On the morning of May 11 around 8:30 8:45 a.m. Craig stopped by my house at 7th and Plum in the ally [ sic ] to obtain items that he left there the night before. He was with a female in a gold van she did not come inside but waited for him while he grabed [ sic ] his things.”
Defense counsel told the district court that Prebble recently had been released from the custody of the Department of Corrections (DOC). Five days before trial, she sought and obtained a court order instructing the DOC's parole office to disclose Prebble's last known whereabouts. The DOC advised that Prebble had failed to report for inpatient treatment and a warrant had been issued for his arrest. Defense counsel hired a private investigator to look for Prebble, but the search thus far had been unsuccessful.
The State opposed the grant of another trial continuance, pointing out that the case had been set for trial three times. Furthermore, the State noted that the last time the defense sought a trial continuance, it also had told the district court that Gooch was looking for a witness. The district court denied Gooch's request for a third trial continuance. Regarding defense counsel's efforts to locate Prebble, the district court observed: “We have no indication when and if Mr. Prebble will be found since there's a warrant out for his arrest and obviously he's on the run from the law.”
The district court did not err in denying Gooch's requested trial continuance
K.S.A. 22–3401 provides that a district court may grant a trial continuance “for good cause shown.” The district court's refusal to grant a continuance will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Beaman, 295 Kan. 853, 862, 286 P.3d 876 (2012). When a request for a continuance has been made in order to secure attendance of a witness at trial, the factors relevant to a decision regarding that request include: the possible prejudice to the defendant, the diligence or lack thereof in attempting to secure the attendance of the witness, the materiality and importance of the probable testimony, and the probability of the witness' appearance at a later date if the continuance is granted. State v. Carter, 284 Kan. 312, 319, 160 P.3d 457 (2007).
Based upon defense counsel's statements to the district court, it appears that the defense exercised reasonable diligence in attempting to secure Prebble's attendance at trial. Furthermore, based on the brief statement purportedly written by Prebble, his testimony may have assisted Gooch's defense by partially corroborating Gooch's testimony as to the events that transpired on the morning of May 11, 2012.
However, Gooch's case had been set for trial on at least three occasions and the district court had granted Gooch's last request for a continuance over the State's strenuous objection. The trial continuance in December 2012 was granted specifically to allow Gooch to locate a “material witness.” But the most important reason that the district court denied Gooch's request for a third trial continuance was the low probability of Prebble's appearance at a later date if the continuance had been granted. Prebble had absconded from parole and, despite the issuance of a warrant for his arrest, remained at large on January 22, 2013. As the district court noted, Prebble was “on the run from the law” and the district court could not be expected to continue the trial indefinitely until such time that the arrest warrant could be executed. After a careful analysis of the facts and circumstances that existed in Gooch's case, we conclude that the district court did not abuse its discretion in denying Gooch's request for a trial continuance.
Prosecutorial Misconduct
Finally, Gooch argues that the State committed prosecutorial misconduct during closing argument that warrants reversal of his convictions. The State denies that the prosecutor engaged in any misconduct. Alternatively, even if the prosecutor's remarks were improper, the State contends that any resulting error was harmless.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the appellate court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. 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. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
Gooch first argues that the prosecutor made comments during closing argument calculated to play to the jurors' emotions and commented on facts not in evidence. Our Supreme Court “has repeatedly emphasized that it is improper for a prosecutor to comment on facts not in evidence, to divert the jury's attention from its role as factfinder, or to make comments that serve no purpose other than to inflame the passions and prejudices of the jury.” State v. Stimec, 297 Kan. 126, 128, 298 P.3d 354 (2013).
Gooch points to the prosecutor's repeated statements that M.C.H. experienced a “nightmare”—using that word six times throughout the course of his closing argument and rebuttal:
“And after all, she went to Dillons to do a little shopping that day. She encountered a living nightmare; the defendant in the back of her car saying he was going to rape her.” (Emphasis added.)
“He got in her van. She forgot to lock her door on the way in then a nightmare happened.” (Emphasis added.)
“[M.C.H.] suffered a nightmare that day. A nightmare. She told you about it. The defendant did it. Find him guilty.” (Emphasis added.)
“You saw the defendant go get in her van, hide in the back, and pop up. The nightmare of what [M.C.H.] had to suffer.” (Emphasis added.)
“Ladies and gentlemen, [M.C.H.] suffered a nightmare. Find him guilty.” (Emphasis added.)
Gooch contends that the prosecutor was attempting to inflame the passions of the jury by suggesting that M.C.H.'s experience was horrendous and nightmarish. Furthermore, he argues that the prosecutor improperly commented on facts not in evidence because M.C .H. herself never said that she experienced a nightmare.
The State cites State v. Maestas, 298 Kan. 765, 316 P.3d 724 (2014), in which it contends that this same objection was made and denied. In that case, the defendant confessed to stabbing his mother with a knife. He later told law enforcement that his mother had been asleep in her bedroom with the lights out when he began stabbing her. 298 Kan. at 768. According to the defendant, his mother started screaming during the attack, saying his name and telling him to stop, but he “just lost control and kept stabbing her.” 298 Kan. at 768. During closing rebuttal argument, the prosecutor stated:
“ ‘And ladies and gentlemen, I ask you to look at this. This is not an easy case. The family has lost their mother, have to go through this with their brother. But you have to look at Lorenza Maestas, you have to look at these pictures as a result of Mr. Maestas' actions. And I wonder, as Mr. Maestas stood above his mother, stabbing her on the bed and on the floor, after she'd screamed for him to stop, was this a nightmare that's coming true, this is a worst nightmare of hers, or was this something that Mr. Maestas had been dreaming of? ’ “ 298 Kan. at 776.
On appeal, the defendant argued that the italicized comment implied, without evidentiary basis, that his mother feared him or had nightmares about him stabbing her while she slept. Our Supreme Court found that the statement was within the prosecutor's wide latitude to craft arguments based on the evidence. 298 Kan. at 777. The court cited several cases recognizing that prosecutors are afforded some freedom to employ colorful language when arguing their cases. 298 Kan. at 777. The court concluded: “The victim was asleep in bed when the attack commenced, and the prosecutor was attempting a play on words given that circumstance.” 298 Kan. at 778.
Gooch's case is no different. The prosecutor's references to a “nightmare” were made as he accurately discussed the evidence presented at trial. The prosecutor was not trying to inflame the passions of the jurors or stating facts not in evidence; he was merely employing colorful language as he argued his case to the jury. The prosecutor did not commit misconduct by stating that M.C.H. had experienced a nightmare.
Gooch next argues that the prosecutor misstated the law when he defined “bodily harm” during his closing argument. When a misstatement of controlling law is made deliberately, it is outside the considerable latitude given to prosecutors during their closing arguments. State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006).
Gooch takes issue with the following statement made by the prosecutor in discussing the district court's jury instruction on aggravated kidnapping:
“[Gooch] did it with the intent to hold M.C.H.... to facilitate the commission of a crime and it says to-wit: either rape or aggravated sexual battery. Now, as the court instructs you later on in the definition of this instruction, rape constitutes bodily harm. I'm sure you would expect no less, but so does aggravated sexual battery.
“And that bodily injury was inflicted upon M.C.H. Now, of course the last element, and we define bodily harm. What's important about that is look at the definition of bodily harm because you don't actually have to cause a visible injury. It's, bodily harm includes any act of physical violence even though no permanent injury results.
“You've got aggravated sexual battery, the touching of her breasts, the touching of her vagina in the car, the touching of her breasts at the home. The touching of her vagina the inserting of the fingers, the rape, ejaculating on her face, all constitute bodily harm; any one of which is sufficient for the jury to find on the facts of this case bodily harm.” (Emphasis added.)
Gooch acknowledges that rape constitutes bodily harm as a matter of law. Also, he does not challenge the prosecutor's assertions that a sexual battery constitutes bodily harm. Gooch only argues that the prosecutor misstated the law when he asserted that Gooch's act of ejaculating on M.C.H.'s face constituted bodily harm.
The State disagrees with Gooch's contention that it misstated the law and points to several Kansas Supreme Court cases establishing that sexual acts committed by the defendant against the victim constitute bodily injury necessary to establish aggravated kidnapping. Indeed, in State v. Peltier, 249 Kan. 415, 418–20, 819 P.2d 628 (1991), the defendant rubbed the victim's vaginal area with his fingers and licked it with his tongue. He laid on top of the victim and his “private” touched hers. The defendant also kissed the victim by inserting his tongue into her mouth. Our Supreme Court determined that these charged acts of indecent liberties constituted bodily harm and were sufficient to support the defendant's conviction of aggravated kidnapping. 249 Kan. at 427.
Although Peltier is not directly on point, it supports a conclusion that Gooch's act of ejaculating on M.C.H.'s face constituted bodily harm or injury sufficient to support the charge of aggravated kidnapping. The act was intentional and performed in a hostile manner. The act also involved a physical touching, in that Gooch's bodily fluid touched M.C.H.'s face. We conclude that the prosecutor did not misstate the law.
Finally, even if the prosecutor misstated the law when he defined bodily harm, this court must next determine whether that misconduct constitutes plain error; that is, whether the statements prejudiced the jury against Gooch and denied him a fair trial. See State v. Burnett, 293 Kan. 840, 850m 270 P.3d 1115 (2012). In this second step of the court's two-step analysis, it must consider 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.” State v. Raskie, 293 Kan. 906, 914, 269 P .3d 1268 (2012).
Without engaging in extensive analysis, we easily conclude that any misstatement of the law by the prosecutor did not deny Gooch a fair trial. The prosecutor's misconduct, if any, was not gross and flagrant and there was no ill will on the prosecutor's part. The evidence at trial against Gooch was overwhelming. Even if Gooch's act of ejaculating on M.C.H.'s face did not constitute bodily harm or injury as a matter of law, there was sufficient evidence of bodily injury to support the aggravated kidnapping conviction, including the evidence that Gooch struck M.C.H. on the side of her head when he was sexually assaulting her on the couch causing soreness to M.C.H.'s head that lasted several days. Gooch was not denied a fair trial based on prosecutorial misconduct.
Affirmed in part and remanded with directions.