Opinion
No. 106,206.
2013-12-27
STATE of Kansas, Appellee, v. Victor JUAREZ–JIMENEZ, Appellant.
Appeal from Wyandotte District Court; John J. McNally, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Cathy A. Eaton, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; John J. McNally, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Cathy A. Eaton, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Victor Juarez–Jimenez appeals his convictions of kidnapping and aggravated sexual battery. He argues that (1) kidnapping is an alternative means crime and the State failed to present sufficient evidence on each alternative means; (2) the procedure by which the district court answered questions from the jury violated the applicable statutory provision and various constitutional rights; and (3) the district court improperly prevented him from questioning the victim about her immigration status. Finding no reversible error, we affirm the district court's judgment.
The facts were highly disputed at trial. According to J.S., in February 2009 she was living in a house with her ex-husband, Margarita Chavez, and Juarez–Jimenez, with whom Chavez had a child. J.S. was sitting in the living room just before 11 a.m. on February 18, 2009, when Juarez–Jimenez came in the front door. He said, “Now we're alone,” knelt in front of J.S., and touched her legs, telling her that because Chavez had not had sex with him for several days, J.S. was going to pay the consequences and have sex with him. Despite J.S. crying and asking him to stop, Juarez–Jimenez continued grabbing her legs and touched her vaginal area over her jeans. Juarez–Jimenez grabbed J.S. by the arm and pulled her to his bedroom, where he pushed her onto the bed. While in the bedroom, Juarez–Jimenez pinned her on the bed with his leg, then climbed on top of her, tearing her shirt and licking her. At that point, J.S. heard Chavez' car outside and Juarez–Jimenez let her go, saying, “Margarita's here, Margarita's home.” Juarez–Jimenez took J.S. back to the living room and told her not to cry and not to say anything to Chavez. J.S. initially complied with this request. But several months later, J.S. reported the incident to the police.
On August 31, 2009, the State charged Juarez–Jimenez with one count of kidnapping, two counts of aggravated sexual battery, and one count of domestic battery. One of the aggravated sexual battery counts, which did not relate to J.S., was dismissed at the preliminary hearing, and the State dismissed the domestic battery charge, which also did not relate to J.S. Juarez–Jimenez pled not guilty to both remaining counts.
The jury trial commenced on February 8, 2010, but the district court declared a mistrial after a potential juror reported other potential jurors speculating about the subject of a bench conference and discussing immigration status issues during a break from voir dire. The second jury trial began on February 16, 2010. J.S. testified to the events as related above. Detectives Lewis Edwards and Romulo O'Reilly of the Kansas City, Kansas, Police Department also testified as to their interactions with J.S. when she made her police report. Juarez–Jimenez testified on his own behalf. He stated that multiple people were in the house on the day in question, and he denied all of the events about which J.S. testified. During deliberations, the jury sent four questions to the judge. The district judge discussed the questions and potential answers with counsel in chambers, in Juarez–Jimenez' presence, and responded to the jury in writing.
The jury found Juarez–Jimenez guilty of kidnapping and aggravated sexual battery. The district court imposed a controlling sentence of 59 months' imprisonment. Juarez–Jimenez timely appealed the district court's judgment.
Alternative Means of Committing Kidnapping
Juarez–Jimenez first argues that his right to a unanimous jury verdict on the kidnapping charge was violated because the State did not offer substantial evidence of all the alternative means of committing the crime that the State alleged and upon which the district court instructed the jury. The State argues that the phrases Juarez–Jimenez emphasizes do not create alternative means of committing the crime of kidnapping.
Our Supreme Court has stated:
“ “ ‘[W]here a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.” ’ [Citations omitted.]” State v. Brown, 295 Kan. 181, 188, 284 P.3d 977 (2012).
Here, the information charging Juarez–Jimenez alleged that he took “or confine [d] a person, to-wit: [J.S.], by force, threat or deception, with the intent to hold such person to facilitate flight or the commission of a crime, to-wit: Aggravated Sexual Battery.” At trial, the judge instructed the jury as follows:
“To establish this charge, each of the following claims must be proved:
“1. That the defendant took or confined [J.S.], by force, threat or deception;
“2. That it was done with the intent to hold such person to facilitate flight or the commission of a crime, to-wit: Aggravated Sexual Battery; and
“3. That this act occurred on or about the 18th day of February, 2009, in Wyandotte County, Kansas.”
Specifically, Juarez–Jimenez asserts that the phrases “force, threat or deception” and “to facilitate flight or the commission of a crime” create two sets of alternative means for which the State did not present substantial evidence of each alternative mean. After the parties filed their briefs, however, our Supreme Court spoke directly to this issue, stating that “[n]either the phrase ‘force, threat, or deception’ nor the phrase ‘to facilitate flight or the commission of any crime’ in the Kansas kidnapping statute sets forth alternative means of committing the crime of kidnapping or aggravated kidnapping.” State v. Haberlein, 296 Kan. 195, Syl. ¶ 2, 290 P.3d 640 (2012). In Haberlein, the court completed a Brown analysis of the kidnapping statute and found that the phrase “ ‘force, threat, or deception’ ... merely describ[es] ways in which the actus reus can be accomplished”; “each is an option within the means of taking or confining.” 296 Kan. at 208. Likewise, our Supreme Court found that the phrase “to facilitate flight or the commission of any crime” describes options within one of the alternative means available to allow the motivation behind the intent to hold. 296 Kan. at 209.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication that 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. –––– (May 4, 2012). There is no indication that the Kansas Supreme Court is departing from its position on this issue. Thus, Juarez–Jimenez' alternative means argument fails.
Response to Jury Questions During Deliberations
Next, Juarez–Jimenez attacks the procedure the district court used to answer questions from the deliberating jury. During deliberations, the jury sent written questions to the judge, asking:
“1. Where did she [J.S.] live in reality. Legally listed address.
“2. Where is the statement from [Chavez] that the detective took? Was that not admissible?
“3. How long was she living at the shelter for battered/abuse[d] women?
“4. Which address did [J.S.] continually reside at between 02.18.2009 and August of 2009?”
At a conference in chambers, the district court read the questions on the record in front of Juarez–Jimenez, his counsel, an interpreter, and the prosecutor. After a brief discussion, the district court and the parties agreed that the court would respond that, in regards to questions 1, 3, and 4, the jury “must rely upon the evidence admitted at trial” and, in regard to question 2, “the statement of a witness who does not testify is hearsay, and therefore inadmissible.” The transcript of the discussion about the jury questions and responses does not indicate that the district court brought the jury back into the courtroom to answer the questions in Juarez–Jimenez' presence; the record shows that the answers were written at the bottom of the page upon which the jury wrote its questions.
Juarez–Jimenez argues that this procedure violated the applicable statute and denied him his constitutional rights to be present at all critical stages of his trial, to an impartial judge, and to a public trial. Juarez–Jimenez asserts that the error of responding to the jury's questions outside his presence is structural error and the cumulative effect of the error denied him a fair trial and requires reversal of his convictions.
The State argues that Juarez–Jimenez should not be allowed to raise these issues for the first time on appeal. However, the Kansas Supreme Court addressed this issue for the first time on appeal in State v. Bell, 266 Kan. 896, 918–20, 975 P.2d 239,cert. denied528 U.S. 905 (1999); see also State v. Brown, 272 Kan. 809, 812–13, 37 P.3d 31 (2001) (addressing identical issue for the first time on appeal); State v. Coyote, 268 Kan. 726, 731–35, 1 P.3d 836 (2000) (same). Thus we will address the issue for the first time on appeal.
Statutory Violation
Juarez–Jimenez first argues that the procedure used by the district court in responding to the jury's questions violated the applicable statute. Because this argument involves statutory interpretation, our review is unlimited. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). The governing statute, K.S.A. 22–3420(3) states:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
Our Supreme Court has interpreted the statute in the following way:
“The correct procedure for a trial court to follow when answering a question from a deliberating jury is set forth in K.S.A. 22–3420(3). [Citation omitted.] K.S.A. 22–3420(3) requires that once the jury has begun deliberations, any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence, unless the defendant is absent voluntarily. [Citation omitted.].” Bell, 266 Kan. at 919.
The district court here did not follow this procedure and thus erred, but such a violation is subject to harmless error analysis. See Bell, 266 Kan. at 920;State v. Womelsdorf, 47 Kan.App.2d 307, 322, 274 P.3d 662 (2012), petition for rev. filed May 10, 2012. “[T]he test is whether the error affected a party's substantial rights; in other words, the question is whether the error affected the outcome of the trial. [Citation omitted.]” 47 Kan.App.2d at 322.
Here, there is no reasonable possibility that giving the answer to the jury's question in writing affected the outcome of the trial. Juarez–Jimenez does not argue that telling the jury that it “must rely upon the evidence admitted at trial” and that “the statement of a witness who does not testify is hearsay and therefore inadmissible” are misstatements of the law, nor do they provide any additional information or place undue emphasis on how the jury should find. Therefore, any error by the district court in failing to follow the statutory procedure was harmless.
Right to be Present at All Critical Stages of the Trial
Juarez–Jimenez also argues that the district court's answering the jury questions by sending a written note violated his right to be present at all critical stages of his trial. Our Supreme Court has recognized that “[a] criminal defendant has the constitutional and statutory right to be present at all critical stages of his or her trial. A conference between a trial judge and the jury is a critical stage and requires the presence of the defendant.” Coyote, 268 Kan. 726, Syl. ¶ 1. Whether a defendant was deprived of his or her right to be present at every critical stage of his or her trial is a question of law, and our review is de novo. State v. Burns, 295 Kan. 951, 955, 287 P.3d 261 (2012).
As the State points out, however, our Supreme Court has directly spoken to the question of whether “sending an answer back to the jury rather than reading the answer in the presence of the defendant violates his constitutional right to be present at all critical stages of the trial.” 295 Kan. at 956. In Burns, during jury deliberations, the jury sent a question to the court. The record reflected that the judge, the State's attorney, defense counsel, and the defendant were present to discuss the jury question; the district judge stated that he had received another question earlier and had sent a message back to the jury asking for clarification. The jury had clarified its question and, over an objection by defense counsel as to the content of the judge's reply, the district judge sent a written response to the jury.
On appeal, to support his argument that sending an answer to the jury rather than reading the answer to the jury in the defendant's presence violated his constitutional right to be present at all critical stages of his trial, Burns cited Coyote, 268 Kan. at 732. In that case, the trial court answered a question from the jury with a written response of “no” without discussing the question and answer in the presence of the defendant. In finding error, the Supreme Court noted that a trial court, when confronted with a question submitted to it during deliberations is required to advise counsel, provide the parties with the question, and give them an opportunity for input in the presence of the defendant. 268 Kan. at 732. Thereafter, the court is required to respond in writing to the jury in the presence of the defendant. 268 Kan. at 732.
The Supreme Court in Burns found that the district court had followed the procedure outlined in Coyote. Burns, 295 Kan. at 956. The court noted that Burns and his counsel were present and informed of the jury's question and defense counsel was allowed input on the appropriate response. 295 Kan. at 956. Even considering the possibility that the district judge answered an earlier question by responding—without the defendant's presence or input—with a written request to the jury for clarification of what it was asking, the court found that such error was harmless. 295 Kan. at 956–57. Likewise here, Juarez–Jimenez was present for the conference between the district court and counsel to determine the appropriate response to the jury's question. Under Burns, his constitutional right to be present at every critical stage of his trial was not violated.
Juarez–Jimenez also briefly argues that his right to be present at every critical stage of his trial was violated because he was not present when the jury received the response to its question. Juarez–Jimenez does not provide any legal authority that directly supports his argument that the point at which his presence is required is when the jury receives the written answer. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue; an issue that the appellant does not brief is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011); State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
Moreover, it is reasonable to find that a jury question is “answered” when the answer is decided upon. Here, Juarez–Jimenez and his attorney were present for a conference at which the district judge read the questions into the record, took input on the proposed answers, determined the answers, and sent them to the jury. When this procedure is considered with our Supreme Court's holding in Burns, it is clear that the district court here did not violate Juarez–Jimenez' right to be present at all critical stages of his trial.
The Right to an Impartial Judge
Next, Juarez–Jimenez argues that this procedure violated his constitutional right to an impartial judge. The Fourteenth Amendment to the United States Constitution provides the right to an impartial judge. See Ward v. Village of Monroeville, 409 U.S. 57, 59–60, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). As Juarez–Jimenez correctly states, the lack of an impartial judge is considered a structural error and is therefore not subject to harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Chapman v. California, 386 U.S. 18, 23 n.8, 87 S.Ct. 824, 17 L.Ed.2d 705 [1967] ).
This court has recently rejected an argument identical to Juarez–Jimenez'. In Womelsdorf, Debra Womelsdorf argued that her fundamental right to an impartial judge was violated by sending the written answer to the jury. As Juarez–Jimenez does here, Womelsdorf argued that “the communication between the judge and jury was not complete until the jury received the written answer to its question. If no judge was present when the jury received the written answer, then no impartial judge was present....” 47 Kan.App.2d at 323. To support her argument, Womelsdorf cited a New Jersey case in which the district judge, over the defendant's objection, ordered a readback of the victim's testimony to the jury, in the jury room, with counsel present, but without the defendant or the judge present. See State v. Brown, 362 N.J.Super. 180, 827 A.2d 346 (2003). Prior to the readback, the district judge entered the jury room with the jury but outside the presence of counsel or the defendant and instructed the jurors that they could take notes on the readback but should not discuss the readback in front of counsel.
On appeal, the Superior Court of New Jersey, Appellate Division, found that the readback was a critical stage of the trial at which the defendant had the right to be present and that the readback must be conducted in open court, on the record, and under the supervision of the presiding judge. Brown, 362 N.J.Super. at 182, 188–89. Part of the basis for the determination that the readback was a critical stage was that it furnished the jury with information it needed to decide the case. See Brown, 362 N.J.Super. at 188–89;Womelsdorf, 47 Kan.App.2d at 324. The Womelsdorf court distinguished Brown by pointing out that the answer to the jury question in Womelsdorf did not provide additional information and did not implicate the lengthy process undertaken for a readback. 47 Kan.App.2d at 324. Therefore, under the facts of Womelsdorf, this court determined that the procedure of responding to the jury question in writing did not violate the constitutional right to an impartial judge. 47 Kan.App.2d at 324.
Likewise here, the district court's responding to the jury question in writing did not violate Juarez–Jimenez' constitutional right to an impartial judge. For the reasons stated above, Juarez–Jimenez' argument that the point at which he had the right to the presence of an impartial judge was when the jury received the communication is unpersuasive. Additionally, as in Womelsdorf the answer given to the jury did not provide significant additional information to the jury; rather, it explained why the jury could not have the additional information for which it asked. Therefore, under the facts of this case, the procedure did not violate the right to an impartial judge.
The Right to a Public Trial
Finally, Juarez–Jimenez argues that the procedure violated his right to a public trial as guaranteed by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. The determination of whether the right to a public trial was violated is a question of law over which an appellate court has unlimited review. State v. Dixon, 279 Kan. 563, 596, 112 P.3d 883 (2005), disapproved on other grounds by State v. Wright, 290 Kan. 194, 204–06, 224 P.3d 1159 (2010). As Juarez–Jimenez correctly notes, violation of the right to a public trial constitutes structural error and is not subject to harmless error analysis. See Boldridge v. State, 289 Kan. 618, 627–28, 215 P.3d 585 (2009).
This court rejected a similar argument in Womelsdorf, but the instant case is different in that here the conversation between counsel and the district judge, with defendant present, occurred in chambers, not in the courtroom. See Womelsdorf, 47 Kan.App.2d at 324–25. This distinction means that we must consider what implications, if any, result regarding Juarez–Jimenez' right to a public trial where the discussion and resolution of how to answer the jury's questions were undertaken in chambers rather than in open court.
In State v. Rhyne, No. 106, 313, 2012 WL 5205570, at *8 (Kan.App.2012) (unpublished opinion), petition for rev. filed November 19, 2012, this court noted that the appellant provided “no direct authority to support her contention that an in-chambers discussion of a jury question between the district court and counsel violates the defendant's right to a public trial.” Additionally, the court went on to say:
“To the contrary, courts in other jurisdictions have held that nonevidentiary hearings that do not involve factfinding that are conducted in chambers do not violate the defendant's right to a public trial. See, e.g., United States v. Norris, 780 F.2d 1207, 1209–11 (5th Cir.1986) (finding that a routine evidentiary hearing that dealt only with application of legal principles and not factfinding or determination of guilt did not implicate the right to a public trial); State v. Pullen, 266 A.2d 222, 227–28 (Me.1970), overruled on other grounds by State v. Brewer, 505 A.2d 774, 777–78 (Me.1985) (finding that although the better practice would be to conduct the proceedings in open court in the absence of the jury, defendant's right to public trial held not violated where motion for judgment of acquittal was heard in chambers, with defendant absent when issue involved was solely a question of law).” 2012 WL 5205570, at *8.
We adopt this court's reasoning in Rhyne. Thus, we conclude that the district court's procedure in responding to the jury questions did not violate Juarez–Jimenez' right to a public trial.
Cumulative Error
Finally, Juarez–Jimenez argues that we should reverse his convictions because the cumulative effect of the errors that resulted in the denial of his rights worked to deny him a fair trial. As stated above, however, the only possible error here was the district court's failure to follow the statutory mandate of K.S.A. 22–3420(3) and answer the jury's question in open court. See Bell, 266 Kan. at 919. Our Supreme Court has stated that a single error cannot constitute cumulative error. See State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010). Because all but one of Juarez–Jimenez' claims of error failed, his claim of cumulative error fails as well.
Limiting Cross-examination of Victim's Testimony
In his final issue, Juarez–Jimenez argues that the district court refused to allow him to cross-examine J.S. about her immigration status in order to present his theory about her alleged motive to fabricate allegations against him. The State argues that the issue is not properly preserved for appellate review.
During voir dire for Juarez–Jimenez' jury trial on February 8, 2010, defense counsel asked the potential jurors if any of them had strong feelings against people who are in the United States as undocumented immigrants. One potential juror admitted such feelings and, after a conversation at the bench with the potential juror, the district court excused the potential juror from service. The following colloquy then occurred:
“MS. EATON [the prosecutor]: Your Honor, if we may, I think the law's pretty clear that it's improper to ask somebody whether they're documented or not, whether they're here legally or illegally. So at this point I'd like to let the Court know if any of that is elicited by the defense, I think that's improper.
“MS. STEWART [defense counsel]: Well
“THE COURT: Yeah.
“MS. STEWART: Well, if I can respond to that, part of the defense in this case is that individuals—individuals
“MS. EATON: Shhh.
“MS. STEWART: Individuals who are here, females in particular, who are here sexually—are involved in a sex crime can apply and do often apply for a U visa
“MS. EATON: She has not.
“MS. STEWART:—or visas that lead toward citizenship.
“MS. EATON: Well, she hasn't.
“THE COURT: So that won't be a defense in this case. She has not done so.
“MS. STEWART: She may or may not say. I think I should be able to ask her
“THE COURT: That's something that you probably are not going to be able to ask her, but certainly we'll deal with that later. But it would be improper for anyone to testify that your client is an illegal alien, and so I'm not going to let you go into that,”
After a short recess, the judge told counsel that they could ask the remaining panelists whether they could be fair and impartial regarding the defendant's immigration status, but that he would not allow anything else regarding immigration status. The judge further said that he would address any issues regarding a possible defense implicating J.S.'s immigration status after jury selection. Shortly thereafter, a potential juror notified the district court that other potential jurors had been speculating as to the subject matter of the bench conference and how immigration status would affect the trial. As a result, the district court declared a mistrial.
At the second jury trial, J.S. testified, but Juarez–Jimenez declined to cross-examine her. Nothing in the record shows that Juarez–Jimenez ever again raised the issue of questioning J.S. about her immigration status or a request for a U visa based on her status as the victim of a crime. In fact, Juarez–Jimenez admits he did not raise the subject of J.S.'s immigration status at the second trial. At the hearing on the motion for new trial, however, Juarez–Jimenez argued that the district court had erred in preventing him from questioning J.S. about her immigration status.
Our Supreme Court has stated that “[i]f constitutional rights are not implicated, the propriety and scope of cross-examination lies within the district court's discretion and is reviewed on appeal for an abuse of discretion. [Citation omitted.]” State v.. Tully, 293 Kan. 176, 186, 262 P.3d 314 (2011). But, as the State notes, there is nothing in the record to support Juarez–Jimenez' argument that the district court prohibited him from cross-examining J.S. about her immigration status. The final word from the district court at voir dire in the first trial was that it would address any issues regarding possible defenses implicating J.S.'s immigration status later. Neither Juarez–Jimenez nor the State raised the issue again. At the second trial, Juarez–Jimenez did not attempt to cross-examine J.S.
Accordingly, Juarez–Jimenez' claim of error fails for two reasons. First, the district court did not rule that Juarez–Jimenez could not question J.S. on her immigration status. The court stated, “That's something that you probably are not going to be able to ask her, but certainly we'll deal with that later.” Therefore, there is no ruling for this court to review for an abuse of discretion.
Second, even if the district court's statements during voir dire of the first trial could be interpreted as a ruling that Juarez–Jimenez would not be allowed to question J.S. on her immigration status, the first trial ended in a mistrial, to which Juarez–Jimenez did not object. Our Supreme Court has stated that “ “ ‘[w]hen a new trial is granted on the motion of the defendant in a criminal prosecution, the granting of the same places the party accused in the same position as if no trial had been had.” ’ [Citations omitted.]” State v. Miller, 293 Kan. 535, 554, 264 P.3d 461 (2011). In Miller, the Supreme Court found that where the first trial ended in a mistrial, consent to disqualification of a witness at a second trial waived any objection to such disqualification, even where there was a standing objection granted at the first trial. 293 Kan. at 554.
Because Juarez–Jimenez is complaining of a ruling that arguably did not occur and, even if it did, was only applicable to the first trial that ended in a mistrial, his failure to attempt to cross-examine J.S. regarding her immigration status in the second trial prevents him from now complaining about the issue on appeal. Accordingly, we agree with the State that this issue is not properly preserved for appeal.
Affirmed.