Opinion
No. 106,849.
2013-07-5
STATE of Kansas, Appellee, v. John D. BALBIRNIE, Appellant.
Appeal from Franklin District Court; Thomas H. Sachse, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Franklin District Court; Thomas H. Sachse, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury in Franklin County District Court convicted Defendant John Balbirnie of second-degree intentional murder, and he challenges that verdict on the grounds that two purported errors in the instructions deprived him of a fair trial. Controlling Kansas Supreme Court cases foreclose both of his points. Balbirnie also disputes how his criminal history was used at sentencing, another issue that has already been decided adversely to his position. Because Balbirnie can show no error, we affirm his conviction and sentence.
Given the nature of the issues, the underlying facts have no particular legal significance. We state them briefly only to lend some broad context to the points on appeal.
Balbirnie was charged with first-degree premeditated murder in the stabbing death of Paul Nicholson on July 28, 2010. Balbimie, Nicholson, and a number of other people were at an apartment in Ottawa that evening. Most of the individuals had been drinking. Nicholson got into an argument with Brandon Ellsmore and wound up punching him. The two fought. After a lull, Ellsmore thought Nicholson was coming after him again so he picked up a kitchen knife and stabbed Nicholson in the back. Balbimie had pulled out a pocketknife, and he then stabbed Nicholson several times. Witnesses didn't agree on whether Balbirnie stabbed Nicholson in the chest, back, or neck. Nicholson staggered out of the apartment and fell down a flight of stairs. Balbimie and Phil Wallace followed. Wallace testified that after Nicholson got to his feet, Balbimie grabbed Nicholson and stabbed him once in the chest. Nicholson and Wallace went back to the apartment.
Another person in the apartment called 911. Law enforcement officers found Nicholson dead outside the apartment building. At trial, a forensic pathologist testified that the fatal injury to Nicholson was a stab wound to the chest. The knife causing that wound severed Nicholson's aorta and penetrated his heart.
The State charged Balbimie with first-degree murder. The jury heard the case in April 2011. Ellsmore made a deal with the State to plead to a reduced charge of aggravated battery and to testify at Balbirnie's trial. He told the jury he had stabbed Nicholson in the back but not the chest. Balbimie did not testify at trial. In an earlier out-of-court statement presented to the jury, Balbimie denied stabbing Nicholson. The district court used an outdated jury instruction on burden of proof. And over Balbirnie's objection, the district court gave instructions on the lesser included offenses of second-degree intentional murder and voluntary manslaughter. As we said, the jury convicted Balbirnie of second-degree intentional murder. The district court later sentenced Balbirnie to 272 months in prison. Balbirnie has timely appealed.
For his first issue, Balbirnie contends the burden of proof instruction created a constitutional error by misinforming the jurors about what the State had to prove to convict. The district court instructed the jury with PIK Crim.3d 52.02:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.”
Balbirnie points out that the meaning of the word “any” shifts from the first sentence of the instruction to the second, and he says that confuses jurors to a defendant's detriment. Balbirnie thoroughly and thoughtfully discusses the linguistic frailty of the shifting meanings. The PIK committee apparently had some concern about the instruction and revised it in 2004 by replacing the word “any” in the second sentence with “each.” The recommended PIK instruction has remained the same since that revision. See PIK Crim. 4th 51.010.
Balbirnie casts the instruction's language as a constitutional defect. The Kansas Supreme Court does not agree. After the parties submitted their briefs, the court addressed this precise issue in State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013), and held the any-any instruction on burden of proof to be free of error and “legally appropriate,” but no longer preferred. In short, the instruction the district court used simply was not erroneous, 296 Kan. at 1124, 299 P.3d 292, and Balbirnie can predicate no error on it.
For his second issue, Balbirnie argues that the district court should not have given any lesser included offenses over his objection and should have instructed the jury on only first-degree premeditated murder. The strategy, of course, forces the jurors into an all or nothing decision—they must either convict of first-degree murder or find the defendant not guilty of any crime. And it concomitantly holds the State to its charging decision, something that may be problematic if the prosecutor has pursued an especially serious offense that taxes the evidence.
The Kansas Code of Criminal Procedure addresses instructing juries on lesser included offenses. As provided in K.S.A. 22–3414(3), “where there is some evidence which would reasonably justify a conviction of some lesser included crime ..., the judge shall instruct the jury as to the crime charged and any such lesser included crimes.” The issue turns on the proper construction of that portion of K.S.A. 22–3414(3).
The interpretation of a statute presents a question of law over which appellate courts exercise unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). In construing statutory provisions, appellate courts are to glean the legislative purpose and intent from the language used, and they are to give effect to that purpose and intent. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009); Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). It is not the courts' business or function to add to or take away from the language of a statute. And the courts should not impose some meaning on a statute beyond what the words themselves convey through their common and usual definitions. Gracey, 288 Kan. at 257, 200 P.3d 1275. The Kansas Supreme Court recently summed up those rules of construction in Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 903–04, 249 P.3d 434 (2011), and reemphasized judicial adherence to the “plain and unambiguous meaning” of the statutory language.
The relevant statutory language in K.S.A. 22–3414(3) seems to require a district court to instruct on lesser included offenses supported in the evidence. The language does not create a right in the defendant to require instructions covering lesser included offenses—a right a defendant presumably could knowingly and voluntarily relinquish for strategic reasons. See New York v. Hill, 528 U.S. 110, 114–15, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (acknowledging criminal defendant may waive even fundamental rights). Rather, the statute imposes a duty on the district court to instruct a jury on lesser included offenses. The duty does not run singularly to the defendant. It follows that the defendant may not unilaterally release the district court from that duty by requesting that no lesser included offense instructions be given.
The Kansas Supreme Court addressed and rejected the construction of K.S.A. 22–3414(3) Balbirnie advances here. State v. Cordray, 277 Kan. 43, 53–54, 82 P.3d 503 (2004). The court held that the district court has no discretion under K.S.A. 22–3414(3) to forego jury instructions on lesser included offenses at a defendant's behest. The district court is duty bound to instruct on lesser included offenses supported in the evidence. 277 Kan. at 53, 82 P.3d 503. In that case, Cordray was charged with first-degree murder and wanted the jury instructed on no lesser included offenses—setting up the same all-or-nothing defense strategy Balbirnie sought to deploy here. The district court declined to oblige Cordray because of what it perceived as its statutory obligation to give those instructions. On review, the court found that call to be correct: “Neither the case law nor statutes relied on by Cordray support a determination that a criminal defendant has a right to an all-or-nothing defense.” 277 Kan. at 55, 82 P.3d 503. The Cordray decision undercuts Balbirnie's argument here.
Balbirnie more or less acknowledges the dent Cordray puts in his appeal and candidly suggests the decision deserves overruling. With equal candor, we reply that we can't do that.
Balbirnie suggests a pair of arguments that the Cordray court did not expressly address, though we doubt that gives us license to do anything more than acknowledge they might be worthy of consideration in a petition for review. Here, however, the arguments fall short of warranting such an acknowledgment.
First, Balbirnie argues that the “shall” in K.S.A. 22–3414(3) referring to lesser included offense instructions ought to be construed as meaning “may,” thus affording discretion to the district court. The Cordray decision tacitly rejected that reading of the language, since it held the language reposes no discretion when it comes to instructing on lesser included offenses supported by the trial evidence. See 277 Kan. at 53–54, 82 P.3d 503. Moreover, the natural meaning of “shall” as a statutory directive conveys a clear sense of mandatory character. See Scalia and Garner, Reading Law: The Interpretation of Legal Texts, p. 112 (2012). Though courts from time to time have construed a statutory “shall” to be something less—merely affording permission—that cannot be done lightly. In K.S.A. 22–3414(3), reading the “shall” as a permissive “may” appears an unlikely construction. The word “shall” is used elsewhere in the same subsection for what must be mandatory obligations. For example, the judge “shall pass” on objections to the instructions. The court reporter “shall” record those objections. And the statute directs that the judge “shall instruct the jury” at the end of the case. None of those functions reasonably could be permissive or discretionary. We doubt the legislature meant to sneak one “shall” into that subsection to be construed as a “may.”
Balbirnie also argues that the procedure outlined in K.S.A. 22–3414(3) for lodging objections to the district court's giving or failure to give an instruction supports the notion that the district court need not instruct on lesser included offenses if a defendant so requests. In that situation, the defendant would not object to the absence of instructions on lesser included offenses, substantially constraining appellate review if the defendant were to reverse course and try to complain about that decision following a conviction. The statutory language is more properly read to accommodate objections where the defendant believes the evidence supports a lesser included offense and the district court has refused to give the instruction or the reverse where the defendant objects to instructing on a lesser included offense because the evidence fails to support it. The statute is not intended to facilitate a defendant's strategic decisions to forego lesser included offense instructions actually supported in the evidence. Balbirnie's argument is unpersuasive.
For his next point on appeal, Balbirnie argues that the cumulative error caused by the burden of proof instruction and the giving of lesser included offense instructions over his objection requires reversal of the conviction even if neither of them individually would call for that result. The problem is that neither of Balbirnie's complaints about the instructions amounts to error at all. And cumulative error cannot be created in an error-free environment. See State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
Finally, Balbirnie complains the district court improperly considered his criminal history in imposing sentence. He argues that the district court's use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by the jury. He relies on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support that proposition. Balbirnie acknowledges the Kansas Supreme Court has rejected that argument and has found the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution with respect to the use of a defendant's past convictions in determining a presumptive statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We, therefore, decline his invitation to rule otherwise, especially in light of the Supreme Court's continued recognition of Ivory. State v. Peppers, 294 Kan. 377, 379, 276 P.3d 148 (2012).
Affirmed.