Opinion
110,917.
04-17-2015
STATE of Kansas, Appellee, v. Cleveland HENDERSON, Appellant.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Ian D. Tomasic, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Ian D. Tomasic, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Cleveland Henderson was convicted in a jury trial of aggravated robbery and criminal possession of a firearm by a convicted felon. Henderson moved for new trial. Henderson argued in his new trial motion that he was entitled to a new trial because (1) the trial court erroneously excluded rebuttal testimony from his alibi witness and (2) there was unreported improper contact with jurors during the trial. The trial court denied Henderson's motion. The trial court sentenced Henderson to 233 months' imprisonment with 36 months' postrelease supervision. On appeal, Henderson contends that (1) the trial court erred when it denied his request to call an alibi witness on surrebutal, (2) the trial court erred when it denied his motion for new trial, and (3) the trial court violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2346, 147 L.Ed.2d 435 (2000), when it sentenced him based on his previous criminal history. Finding no reversible error, we affirm.
On June 24, 2012, three Kentucky Fried Chicken (KFC) employees were cleaning up when two men entered the restaurant. The two men jumped over the counter; one man grabbed the cashier, put a gun to her back and neck, and demanded that she “[g]o to the office.” The other man grabbed the shift manager and told her to open the drive-thru cash register. The men then told the employees to open the safe. The men took the money and ordered the two employees to the back of the restaurant where they were forced to lay on the floor and to count to 100. A third employee managed to escape; he later returned to the restaurant.
Officer Michael Boczek was one of the officers sent to the KFC on June 24, 2012. When he arrived, the employees stated that the two men had taken off running on foot. Officer Boczek saw one of the men running, notified other officers, and “gave chase in [his] vehicle.” Officer Boczek caught up to the man and ordered him to stop. When the man failed to obey, Officer Rodney Ashley tased the suspect. The man, Rudolph Wallace, was handcuffed and taken into custody.
Sergeant Michael Howell was also sent to the location of the robbery. When he arrived, he learned that one suspect had been apprehended. He then conducted a walkthrough of the area. In plain view, Sergeant Howell found a plastic bag containing money and a Kansas Department of Corrections identification card belonging to Wallace. Sergeant Howell also saw a maroon van parked near the area. The window on the driver's side was up but the passenger side windows were down. The keys were left in the ignition. Sergeant Howell asked another officer to do a computer check on the tags to make sure the vehicle did not belong to one of the employees. The van belonged to Lakedra Freeman, Henderson's girlfriend.
Detective Jamie Miller contacted Freeman to verify her ownership of the van. Detective Miller sought Freeman's consent to search the van; Freeman acquiesced. Inside the van, Detective Miller found two cellular phones, a baseball hat, and some other personal items. At least one, if not both, of the cellular phones belonged to Henderson. Freeman also told Detective Miller that she had let Henderson borrow the van on the morning of the robbery. After hearing this, Detective Miller gathered information and pictures of Henderson and created a lineup which included five other photographs. Detective Miller showed this photo lineup to one of the victims who identified Henderson. Henderson was later arrested.
At trial, Henderson called Rebecca Horton as his alibi witness. Horton testified she was with Henderson “[a]ll day and all night” on June 24. Horton testified that she picked up Henderson and they went to the liquor store at around 9:30 or 10 a.m. Horton and Henderson went to the park and then checked into the Relax Inn between 10 and 12 a.m. She testified they spent the night at the Relax Inn and that Henderson fell asleep around midnight.
During Horton's cross-examination, the jury learned Horton was in love with Henderson. Horton testified that she had been in love with him for about 20 years; she had his nickname tattooed on her chest. While Henderson was incarcerated, Horton wrote Henderson several love letters. In one of the letters, Horton said: “I've been doing everything I'm supposed to do for someone you're in love with.” Horton signed her letters using Henderson's last name, even though they were not married.
After Horton testified, the trial judge asked, “May this witness be excused?” Henderson replied, “Yes, your Honor.” Speaking to Horton, the trial judge said, “Thank you for your testimony. Watch your step as you go down, please.” Horton left the witness stand and returned to the gallery where she listened to Henderson's entire testimony.
On rebuttal, the State called Sam Patel. Patel helped manage the Relax Inn. Patel explained the process for checking in guests. Patel testified the checking in process involved giving the guest a card to fill out and then asking for identification. Patel said he used the ID to keep a record. Regarding Horton, Patel testified he knew her as a guest at the Relax Inn. The State asked, “Do you recall whether or not you saw [Horton on June 23, 2012]?” Patel said, “No.” Patel further explained the only record he had for anybody checking in was for a gentleman named [H.K.]. Patel said he saw Horton with H.K., but Horton did not check into her own room. Patel did not see Horton at all on June 24.
During the cross-examination of Patel, Henderson asked about a disagreement between Patel and Horton, which took place on June 24. Patel again denied seeing Horton on June 24. When asked about H.K.'s reservation, Patel said he was there for 2 days—June 23 and 24—but he did not know if Horton used the room for those 2 days. Patel said he never saw Henderson with Horton; he had never seen Henderson at the Relax Inn.
Henderson attempted to call Horton as a witness on surrebuttal. The State objected on the basis that “allowing her to testify would be in violation of the rules of sequestration. She sat through all of Cleveland Henderson's testimony yesterday.” Henderson said Horton's remarks would be confined only to Patel's testimony. The trial court did not allow Horton to testify. The trial judge explained, “Well [Horton], she did walk back in and she did sit in the back. And she did not walk out of this courtroom. I'm not going to let her testify. She sat in this courtroom after she left here and did not leave the courtroom.”
At the conclusion of trial, the jury found Henderson guilty of aggravated robbery and criminal possession of a firearm by a convicted felon. Henderson moved for new trial. He argued that the trial court erroneously excluded rebuttal testimony from his alibi witness; and there was unreported improper contact with jurors during the trial.
The trial court held a hearing on the motion for new trial. First, Henderson argued that Horton was sequestered when Patel testified. Henderson acknowledged that Patel was included on the witness list; he even interviewed Patel before trial; although at trial, Henderson argued that he did not know the State would call Patel as a rebuttal witness. Henderson claimed, “[Horton] would have been able to provide the necessary testimony to impeach [Patel] completely.”
Second, Henderson argued that there was improper contact between an individual and the jurors. According to Henderson, a juror came forward 10 days after the verdict and provided some specific information regarding the incident. Henderson explained, “[The juror said] that while the jury was on recess during our trial, they were approached by a gentleman that he said he thought was associated with [Henderson].” This individual questioned the jurors about what they thought concerning the testimony of certain witnesses.
The trial court denied the motion for new trial. The trial court sentenced Henderson to 233 months' imprisonment with 36 months' postrelease supervision.
Did the Trial Court Err in Denying Henderson's Request to Call His Alibi Witness on Surrebuttal?
On appeal Henderson argues that his constitutional right to a fair trial was denied because he was not allowed to present his defense. He further contends that no sequestration order existed and that the trial court erred by refusing to allow Horton to testify on surrebuttal. Henderson incorrectly states the standard of review is de novo. We first set forth the correct standard of review.
The use and extent of rebuttal rests in the sound discretion of the trial court, and the ruling of the trial court will not be grounds for reversal unless it seems that discretion has been abused to defendant's prejudice. State v. Sitlington, 291 Kan. 458, 464, 241 P.3d 1003 (2010). 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. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
The principal argument of Henderson on appeal is that he was not allowed to impeach the State's rebuttal witness with Horton, his alibi witness. In support of Henderson's alibi, Horton testified that Henderson had been with her at the Relax Inn on the day and night of June 24. In the State's rebuttal, manager Patel testified that he had not seen Horton or Henderson at the hotel on June 24. Moreover, Patel denied having a disagreement with Horton on June 24.
As surrebuttal, the defense sought to recall Horton to testify. The State objected on the basis that Horton had “sat through” Henderson's testimony and that it would violate “the rules of sequestration” for Horton to testify. Trial counsel stated that he had not known that the State would call Patel and that Horton would “confine her remarks only to what Patel said.” The court granted the State's objection and would not let Horton testify.
The State, in its trial objection, made no reference to a sequestration order issued by the trial court. The State, however, in its response to Henderson's motion for a new trial, cited the preliminary hearing sequestration statute, K.S.A. 22–2903, as authority for the sequestration of witnesses at trial.
As a result, it seems from the record that the State either misled the trial court in believing that a sequestration order had been entered in the trial when the State stated that Horton would violate “the rules of sequestration” or that the trial court incorrectly believed that there was a rule for the automatic sequestration of witnesses at trial. Under either belief, the trial court erred. First, the record does not show that a sequestration order was ever entered by the trial court. Second, Henderson correctly points out that a violation of a sequestration order does not necessarily require the automatic disqualification of a witness. See State v. Johns, 237 Kan. 402, 406–07, 699 P.2d 538 (1985) ; Davenport v. Ogg, 15 Kan. 363, 365–66 (1875). In Johns, our Supreme Court held:
“Ordinarily where a witness violates a court order separating witnesses without the knowledge of the party or his counsel, the witness should be permitted to testify and it is only where the evidence shows that the party who desires to call the witness knew and participated in the violation of the separation order that the court should exclude the witness' testimony. [Citation omitted.]” 237 Kan. at 406–07.
In Davenport, our Supreme Court determined that the only reason the witness' testimony was excluded was because she violated a sequestration order. Our Supreme Court held a witness' testimony should not be excluded based solely on this fact; further observations by the trial court were required. 15 Kan. at 365–66.
Based on our earlier discussion, we conclude that the trial court abused its discretion by erroneously basing its ruling on a nonexistent sequestration order or by erroneously believing that a rule existed for the automatic sequestration of a witness at trial.
Nevertheless, “the erroneous admission [or exclusion] of evidence is subject to review for harmless error.” See K.S.A.2014 Supp. 60–261 ; State v. Greene, 299 Kan. 1087, 1095, 329 P.3d 450 (2014). Factors an appellate court can consider in reviewing the erroneous exclusion of evidence for harmless error include: “the importance of the witness' testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the case.” State v. Ultreras, 296 Kan. 828, Syl. ¶ 11, 295 P.3d 1020 (2013).
At the hearing on a motion for new trial, Henderson contended that Patel was “lying through his teeth.” Henderson argued:
“[Horton] would have rebutted specifically [Patel's] statement that, in fact that driver's license was not used on a second day. That was false. And even on the driver's license itself on the back side, if the Court remembers, there were two days marked there, not one, as he testified. So I think it was critical that we would have been able to rebut that with our witness. And she was sequestered, Judge, during [Patel's] testimony.”
The trial court held Horton's testimony would not have changed the results of the verdict. See State v. Garcia, 282 Kan. 252, 270, 144 P.3d 684 (2006) ( “Reversal is required only where an erroneous admission of evidence is of such a nature as to affect the outcome of the trial and deny substantial justice. [Citation omitted.]”). The trial court further found that Horton testified about the ID used when checking in; Horton said she stayed there and spent the night. Henderson also testified that he was at the Relax Inn with Horton. The trial court found there was evidence presented about staying there for 2 days. Additionally, the trial court pointed out that defense counsel failed to make a proffer of Horton's testimony on the day of trial.
A verdict or finding will not be set aside on appeal on the basis of an erroneous exclusion of evidence unless the substance of the evidence that the proponent wanted to offer appears of record. K.S.A. 60–405. If there is no proffer of excluded evidence, this cannot establish on appeal that evidence was improperly excluded. Kearney v. Kansas Public Service Co., 233 Kan. 492, 499, 665 P.2d 757 (1983). “Failure to make a proffer of excluded evidence precludes appellate review because there is no basis to consider whether the trial court abused its discretion. [Citations omitted.]” State v. Evans, 275 Kan. 95, 100, 62 P.3d 220 (2003).
Nevertheless, Henderson contends that the trial court's ruling violated his right to present his defense, which was a denial of his right to a fair trial. Henderson further contends that this court may declare a constitutional error harmless only when the party benefitting from the error persuades the court “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., it proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.3d 705, reh. denied 386 U.S. 987 [1967] ).
Horton's rebuttal testimony would not have swayed the jury to believe her and Henderson's alibi defense. Not only did the trial judge make a determination that Horton's testimony would have had no effect on the outcome of the trial, but also there was overwhelming evidence to support the jury verdict in this case. First, the two eyewitnesses, who were victims of the aggravated robbery, positively identified Henderson as one of the suspects. Second, the van that the second suspect was running toward when he was arrested was registered to Freeman. Freeman told police that she had loaned the van to Henderson earlier that morning. Third, the second suspect who was arrested running from the scene was a friend of Henderson and had been friends with Henderson for a very long time. Finally, Horton was an interested witness. She professed her love for Henderson. She testified that she had been in love with Henderson for about 20 years and had his nickname tattooed in her chest.
Thus, the exclusion of Horton's testimony was a harmless error.
Did the Trial Court Err in Denying Henderson's Motion for New Trial?
Henderson argues that the trial court erred when it denied his motion for new trial due to unreported improper contact with jury members during the trial. He contends that the improper contact violated his Sixth Amendment right to trial by an impartial jury.
The only “evidence” Henderson provided regarding improper jury contact was his own statement at the hearing on a motion for new trial. Henderson said a juror came forward approximately 10 days after the jury verdict. The juror informed Henderson that “while the jury was on recess during our trial, they were approached by a gentleman that he said he thought was associated with [Henderson].” The individual apparently questioned the jury regarding their thoughts on the testimony. Henderson argued, “[The jurors] were being quizzed about what they thought about the testimony of certain witnesses in a very improper way.” Henderson also acknowledged that the trial court had clearly instructed the jury to report any incident of this sort and that this juror failed to do so as ordered. There was also a vague statement regarding the jurors being escorted by armed guards after the trial. It is not clear what was improper about guards escorting the jurors other than Henderson believed “something happened.”
During the hearing on the motion, the trial court discussed giving the jury “a huge admonition at the beginning of trial.” In this admonition, the trial court clearly explained to the jurors that they were not to communicate with anyone about the case. The trial court continued to remind the jurors throughout the trial that they were not to discuss this case amongst themselves or with others. There was one situation regarding a juror communicating with a witness during the trial. The juror did not know the person he was speaking with during the break was a witness; he only commented on the comfort of the seats. The juror was questioned, and the trial court determined no misconduct had occurred.
In ruling on the motion, the trial court addressed two points regarding Henderson's juror misconduct claim. The first issue was regarding the vagueness of the contact and whether the juror should have told the trial court about the contact. The second issue was whether the contact had any influence on the juror.
Regarding the first issue, the trial judge said:
“[I]f I take it for true that this occurred—and again, I don't have an affidavit or something from [the juror]. But if I take it he was approached, I don't know anything more than he was approached by someone. Don't know, you know, other than what was said if he was asked about, you know, what they thought of a witness's testimony. It could have been, you know, germane. I mean, it may not have been any more than that, and nothing more was said to him.”
An appellate court reviews the trial court's decision on a motion for new trial for an abuse of discretion. State v. Schumacher, 298 Kan. 1059, 1069, 322 P.3d 1016 (2014). “A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial.” State v. Mathis, 281 Kan. 99, 105, 130 P.3d 14 (2006).
Henderson had the burden of proof to establish prejudice. See State v. Fenton, 228 Kan. 658, 664, 620 P.2d 813 (1980) (determining the party claiming prejudice has the burden of proof). Henderson presented only his statement to the trial court; he did not submit any additional information of evidentiary value.
The unique facts in Henderson's case do not align directly with any other Kansas criminal cases. In a civil context, however, this court addressed a similar issue in Cornejo v. Probst, 6 Kan.App.2d 529, 532–33, 630 P.2d 1202 (1981), rev. denied 230 Kan. 817 (1981). In Cornejo, this court found there was very little for the trial court to consider and the jury misconduct was not self-evident from the record before the trial court. This court held: “Rather, the [motion for new trial] was dependent upon evidence extraneous to any of the regular trial proceedings. Thus, the mere assertion by defense counsel that the juror misconduct should invalidate the verdict provided an insufficient basis for a rational decision on the part of the trial court.” 6 Kan.App.2d at 533. This court held there was nothing substantive before the trial court and therefore the trial court did not abuse its discretion. 6 Kan.App.2d at 537.
In State v. Ruebke, 240 Kan. 493, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), Ruebke argued that the trial court erred by refusing to allow jurors to be called to testify about allegations of misconduct. In a criminal context, our Supreme Court cited Cornjeo and held: “Where counsel makes no showing to support allegations of juror misconduct, the trial court does not abuse its discretion in refusing to call jurors.” 240 Kan. at 513. Our Supreme Court further held where no valid evidence existed in which to base a motion for new trial, the trial court did not abuse its discretion by refusing to allow Ruebke to interview the jury panel. 240 Kan. at 513–14.
Furthermore, Henderson failed to show not only an actual act of jury misconduct, but he also failed to show how the act affected the verdict. In State v. Whitesell, 270 Kan. 259, 286, 13 P.3d 887 (2000), our Supreme Court held:
“ ‘To warrant reversal of a judgment because of improper contact or communication between juror and an outsider, there must be some showing or indication of injury, actual or potential, to the complaining party, or the act or conduct complained of must be such as to afford reasonable grounds to question the fairness of the trial or the integrity of the verdict, or as would tend to destroy or impair public confidence in trial by jury.’ [Citations omitted.]”
The second issue dealt with the jury's mental process. The State argued that the mental process of the jury “has been specifically defined by the courts and by the statutes that we're not to attack. That's not a role to attack how they came about their decision, how they debated, how they came to the decision they did, how they interpreted the evidence.” The trial court agreed with the State and determined it was not going to address the effect on the jury. The trial court ultimately determined that without any other information, there was nothing for the trial court to rule on; the trial court denied the motion for new trial.
Because Henderson failed to meet his burden of proof by showing there was an act of the jury which constituted misconduct, we do not need to address the mental process issue. Nevertheless, the State is correct and our caselaw protects the mental process a jury uses to make its decision. See K.S.A. 60–441 ; Saucedo v. Winger, 252 Kan. 718, 728–29, 850 P.2d 908 (1993).
Henderson's allegation of jury misconduct is supported only by his statement to the trial judge at the hearing on a motion for new trial. Henderson failed to provide anything of evidentiary value to support his claim. Henderson did not meet his burden to show there was even an act of jury misconduct, let alone that this act prejudiced his right to a fair trial. Therefore, the trial court did not abuse its discretion by denying Henderson's motion for new trial.
Did the Trial Court Violate Henderson's Sixth and Fourteenth Amendment Rights Under ApprendIi v. New Jersey When It Sentenced Him Based Upon His Prior Criminal History?
Henderson contends that the trial court violated his Sixth and Fourteenth Amendment rights as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, Henderson argues that any fact that increases the maximum penalty must be included in the charging document and proved beyond a reasonable doubt before a jury. Henderson claims that the State's failure to follow these steps and the trial court's use of this information before enhancing his sentence is in violation of Apprendi. Henderson, however, concedes that our Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), but he includes this issue to preserve it for federal review.
Our Supreme Court held that the use of criminal history scores to determine a defendant's sentence is not unconstitutional under Apprendi. See Ivory, 273 Kan. at 46–48. Our Supreme Court recently reaffirmed Ivory in State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013). This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Since there is no indication our Supreme Court is departing from the Ivory decision, we must follow this controlling precedent.
Affirmed.