Opinion
Nos. 110,003 110,004.
2015-01-2
STATE of Kansas, Appellee, v. Luca MATEI, Appellant.
Appeal from Pratt District Court; William F. Lyle, Jr., Judge.Luca Matei, appellant pro se.Lee J. Davidson, assistant attorney general, for appellee.
Appeal from Pratt District Court; William F. Lyle, Jr., Judge.
Luca Matei, appellant pro se. Lee J. Davidson, assistant attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRJDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Luca Matei appeals his conviction for attempted attempting to influence a judicial officer on several grounds, arguing that the district court erred by improperly impaneling the jury, limiting the questions it allowed him to ask potential jurors during jury selection, excluding evidence, improperly instructing the jury, and violating the United States Supreme Court's decision in Brady v. Maryland. Matei also contends that the prosecutor's abusive questioning of Matei and improper statements during closing argument require a new trial. We have carefully examined each of Matei's arguments, but we find no reason to set aside the jury's verdict.
Factual and Procedural Background
In 2006, while managing an apartment complex, Matei made repeated entries into the apartment of an 18–year–old woman by using his manager's key. On one occasion, Matei grabbed the woman's bottom, and on another, he made inappropriate comments about the woman's breasts and asked to touch them. The woman immediately reported Matei's behavior to the police, and Matei was charged with and convicted of sexual battery. This court affirmed his conviction on appeal. State v. Matei, No. 98,720, 2008 WL 2796473, at *1 (Kan.App.2008) (unpublished opinion), rev. denied 287 Kan. 768 (2009).
Following his conviction for sexual battery, Matei was charged with two additional crimes: (1) failing to register as a sex offender as required by law after his sexual-battery conviction; and (2) attempted attempting to influence a judicial officer. It is the second of these crimes that is at issue in this appeal.
The circumstances surrounding the alleged crime are as follows. On September 30, 2010, after Matei had been convicted of sexual battery and while he was challenging that conviction in Judge Robert Schmisseur's court, Matei went to a Walmart pharmacy where Donna Schmisseur, the judge's wife, worked. At the pharmacy, Matei asked to speak with Donna Schmisseur. Mrs. Schmissuer testified that Matei had told her he had a case in front of her husband and that her husband didn't have all the information he needed to decide Matei's case. Matei then handed her an envelope. Mrs. Schmisseur testified that she had been under the impression that Matei had wanted her to give the information in the envelope to her husband. Judge Schmisseur confirmed that at the time Matei had approached his wife, he had been deciding how to rule in Matei's case.
Matei's testimony was largely consistent with the Schmisseurs' testimony. Matei admitted to delivering a document to Mrs. Schmisseur at the pharmacy where she worked. He also admitted that Judge Schmisseur was deciding a case in which he was a defendant at the time he brought Mrs. Schmisseur the letter. He contested Mrs. Schmisseur's assumption that he had intended for her to give the document to Judge Schmisseur. He said he had simply wanted Mrs. Schmisseur to read it so she could “know the reality” of his sexual-battery conviction. He emphasized that Judge Schmisseur already had a copy of the document he gave to Mrs. Schmisseur and that the document he gave her didn't contain any additional information. Matei also said that he had written numerous government officials to draw attention to his case and that he had given each of them the same document he gave to Mrs. Schmisseur.
On July 14, 2011, Officer Jeff Ward interviewed Matei about giving Mrs. Schmisseur the documents. Ward testified that he had shown Matei a copy of the document he had given to Mrs. Schmisseur and asked if he had, in fact, given her the document. Ward said that Matei had said he had given it to her because he wanted Judge Schmisseur to overturn his sexual-battery conviction and Judge Schmisseur had not yet decided whether to do so.
The State charged Matei with attempted attempting to influence a judicial officer, an odd-sounding charge. The crime of attempting to influence a judicial officer requires “communicating with any judicial officer ... with intent improperly to influence such officer.” K.S.A. 21–3815. Matei couldn't be charged with that offense because he didn't talk directly to Judge Schmisseur. But a person can be charged with attempting another crime whenever the person takes an “overt act toward the perpetration of [the] crime” and “intends to commit” the crime but fails to commit it or is stopped from carrying it out. K.S.A.2010 Supp. 21–3301(a). Thus, since Matei didn't speak directly with Judge Schmisseur, the State charged Matei with attempted attempting to influence a judicial officer.
Matei pled not guilty, and the case proceeded to trial. For the most part, Matei represented himself at trial, though he had a court-appointed attorney present to assist him. The jury found Matei guilty on September 28, 2012. Matei moved for an acquittal and a new trial, but his motions were denied, and he was sentenced to a controlling 24–month probation term with an underlying 24–month prison sentence for this crime and for failing to register as a sex offender.
Matei has appealed to this court. We will discuss each of his claims in the next section of our opinion. We note that Matei is self-represented on appeal too, and some of his arguments are hard to understand. We have done our best to discern the basis of his complaints and to respond to them here.
Analysis
I. The District Court Didn't Err in Impaneling the Jury that Convicted Matei.
Matei contends that the district court erred by not striking five jurors—the jury foreman, who knew the Schmisseurs, and four other jurors who Matei contends attended the Schmisseurs' church. As an initial matter, the State correctly argues that Matei did not preserve for this court's review any issue about the jury foreman's suitability. In order to complain on appeal that he was prejudiced by the district court's failure to remove a juror, Matei needed to have sought to strike the juror for cause or to have exercised a peremptory challenge to remove that person from the jury. See K.S.A. 22–3410(1)(3); K.S.A. 22–3412(a)(2)(C); see also State v. Burton, 235 Kan. 472, 483–84, 681 P.2d 646 (1984) (explaining steps a defendant must take to preserve jury-composition error for appellate review). A peremptory challenge gives each party the right to remove a certain number of jurors from the panel that the party believes might be biased even though the jurors are not subject to challenge for cause. See State v. Hill, 290 Kan. 339, 359–60, 228 P.3d 1027 (2010) (explaining peremptory challenge). Matei did not move to strike the person who became the jury foreman for cause; nor did he use one of his peremptory challenges to prevent him from serving. Accordingly, we cannot review Matei's claim that he was denied a fair trial due to the district court's failure to discharge this juror. See Burton, 235 Kan. at 484.
We turn then to jurors Matei did object to. He objected to jurors 2, 7, 13, and 17 because they “may go to church with [the Schmisseurs].” The district court denied Matei's request to strike these jurors for cause. After the district court denied Matei's request, Matei had six peremptory challenges that he could use to ensure that biased jurors did not hear his case. But Matei only used two of his peremptory strikes on the jurors he believed attended the Schmisseurs' church. Accordingly, jurors 7 and 13 did not serve on the jury, but jurors 2 and 17 did. Matei used his other four peremptory strikes to remove jurors that he had not tried to remove for cause.
Since Matei removed jurors 7 and 13 with his peremptory strikes, their ability to serve on the jury and their qualifications for serving were no longer at issue. See State v. Dixon, 248 Kan. 776, 789, 811 P.2d 1153 (1991). We must determine whether the jury that actually heard Matei's case was impartial. See State v. Heath, 264 Kan. 557, 587–88, 957 P.2d 449 (1998); State v. Crawford, 255 Kan. 47, 51–52, 872 P.2d 293 (1994). And jurors 7 and 13 did not serve on that jury.
Of course, Matei did have to use his peremptory challenges to remove these jurors. But the mere fact that a defendant is forced to use a peremptory strike to remove a juror does not mean that the district court has violated the defendant's constitutional right to a fair trial. Heath, 264 Kan. at 587–88. This is because peremptory challenges—like challenges to strike for cause—are means to achieve the end of an impartial jury, and so long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that end does not mean the defendant's rights were violated or that the defendant was prejudiced. 264 Kan. at 587–88; accord State v. Doyle, 272 Kan. 1157, 1168, 38 P.3d 650 (2002).
To establish prejudice resulting from a district court's decision not to strike a juror for cause when the defendant then removes the juror with a peremptory challenge, the defendant needs to show that because he was forced to use peremptory strikes on the jurors that the district court should have removed for cause, other objectionable jurors served on the jury. Heath, 264 Kan. at 587–88; State v. Thompson, 232 Kan. 364, 367, 654 P.2d 453 (1982). Matei has not made that showing.
Matei nonetheless argues that jurors 2 and 17 prejudiced him because they served on the jury when they should have been removed by the court for cause. But Matei did not use a peremptory strike to remove them, even though he had six peremptory strikes and needed to use only two of them to remove other jurors he objected to. The Kansas Supreme Court has examined this factual scenario before and has held that when the record fails to demonstrate the defendant's reason for not using peremptory challenges to strike jurors he objected to and when the defendant does not argue that using the peremptory strikes would have forced him to accept other objectionable jurors, there is no reversible error in the district court's ruling. Dixon, 248 Kan. at 790–91; see State v. Verge, 272 Kan. 501, 508–11, 34 P.3d 449 (2001); State v. Mayberry, 248 Kan. 369, 382, 807 P.2d 86 (1991); State v. Brown, 34 Kan.App.2d 746, 760–61, 124 P.3d 1035 (2005), aff'd 283 Kan. 658, 157 P.3d 624 (2007).
We should note that Matei has not demonstrated that any of these jurors actually should have been excused for cause. First, our record contains no evidence that the jurors Matei objected to attended the same church as the Schmisseurs. Though all four jurors admitted to attending Sacred Heart Catholic Church, there is no evidence that the Schmisseurs also attended church there. Even if they did, however, none of the jurors that Matei objected to said that they knew the Schmisseurs when the court asked them. Second, even if these jurors did attend the same church as the Schmisseurs, courts have generally refused to strike jurors for cause merely because they claimed membership in the same church as a witness or victim of a crime or a family member of a victim or witness. See Porter v. Gramley, 112 F.3d 1308, 1318 (7th Cir.1997) (holding that juror who served on a jury despite knowing victim's mother through church didn't deny defendant an impartial jury); Futch v. State, 326 Ga.App. 394, 394–98, 756 S.E.2d 629 (2014) (holding that district court did not err by refusing to dismiss for cause a juror who attended the same church as victim of child molestation when juror said he could be impartial); People v.. Strawbridge, 404 Ill.App.3d 460, 466–67, 935 N.E.2d 1104 (2010) (finding juror's mere acquaintance with victim through church group was insufficient basis for juror's removal in predatory-criminal-sexual-assault case); Shepard v. State, 273 Ind. 295, 303–04, 404 N.E.2d 1 (1980) (finding jury impartial despite one juror who knew victim from church because relationship was so casual and remote in time that it was unlikely to affect juror's ability to serve); State v. Dunn, 161 La. 532, 109 So. 56 (1926), writ of error dismissed and cert. denied 273 U.S. 656 (1927) (holding district court didn't err by refusing defendant's request to strike jurors for cause because they were members of same church and bible class as deceased victim since evidence didn't disclose that these affiliations biased the jurors); Childress v. State, 2000 OK CR 10, ¶ 44, 1 P.3d 1006 (2000) (noting that district court didn't err by denying defendant's request to strike for cause a juror who had attended same church as deceased victim); People v. Medina, 12 P.3d 405, 410 (Colo.App.), cert. denied No. 03SC176, 2003 WL 21488726 (Colo.2003) (same).
Matei has not shown any error by the district court in handling jury selection.
II. The District Court Didn't Err by Limiting Matei's Questioning of Potential Jurors.
Matei also contends that the district court impermissibly limited his examination of potential jurors by prohibiting him from discussing punishments in the American justice system. The State objected that this line of questioning wasn't relevant to the jurors' ability to serve. The district court agreed, noting that since the jury decides the verdict and the court decides the sentence, “it is improper to talk to the jury about punishment in this case.”
A district court has broad discretion to limit voir dire, the portion of trial where the parties and the judge may question potential jurors to ensure they are not biased. See State v. Pioletti, 246 Kan. 49, 54–55, 785 P.2d 963 (1990). The district court may limit the questioning if it is harassing in nature, is causing unnecessary delay, or serves no useful purpose ( i.e., is irrelevant). K.S.A. 22–3408(3). The district court's rulings in managing voir dire may be reversed only when it has abused its discretion and the error caused prejudice to the defendant. State v. Jackson, 234 Kan. 84, 86, 670 P.2d 1327 (1983).
Here, the district court properly sustained the State's objection regarding the relevance of prison sentences because such information “serve[d] no useful purpose”—the jury is tasked with deciding the verdict but not the sentence. Under Kansas law, it is well established that a jury should generally not be concerned with the nature or extent of a sentence. See State v. Alexander, 240 Kan. 273, 286–87, 729 P.2d 1126 (1986). Rather, the sentencing judge alone typically determines a defendant's sentence, and jurors are not informed of mandatory sentences. See State v. Frecks, 294 Kan. 738, 742, 280 P.3d 217 (2012); accord Shannon v. United States, 512 U.S. 573, 586–87, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994). Because the jury in Matei's case was not responsible for deciding his sentence, Matei's questions about how the jurors felt about different sentences were properly restricted by the district court. See K.S.A. 22–3408(3).
III. The Prosecutor Did Not Commit Misconduct.
Matei's third argument is that the prosecutor committed misconduct that deprived him of a fair trial by abusively cross-examining him and by misstating the evidence in closing arguments. The State contends that Matei failed to preserve the abusive-questioning argument for appellate review and that the prosecutor did not misstate the evidence.
1. The Prosecutor Did Not Abusively Question Matei.
Matei contends that the prosecutor abusively questioned him—thereby committing reversible misconduct—when he asked whether the document Matei had given to Judge Schmisseur's wife was meant to be persuasive:
“[Prosecutor:] [W]ould you consider [the document you gave to Mrs. Schmisseur] a persuasive document?
“[Matei:] What that word means?
“[Prosecutor:] Trying to persuade the judge to act in a particular way you wanted; that you were trying to show the judge through [the document] that he should overturn, reverse his decision and set aside your conviction.
“[Matei's Attorney]: Objection, Your Honor. May we approach for a second?
“THE COURT: Certainly.
(The following proceedings were held at the bench between Court and Counsel, out of the hearing of the jury:)
“[Matei's Attorney]: Is Counsel amending the complaint?
“[Prosecutor]: No.
“[Matei's Attorney]: Well, if we're talking persuading a judge through a document that you filed with the Court, the complaint is the document.
“[Prosecutor]: It's the exact same document that was given to Donna Schmisseur. See? See the idea?
“THE COURT: I see that he tied it together.
“[Prosecutor:] Okay. Mr. Matei, [your attorney] kind of reminded me that I asked a pretty poor question there, a little hard for you to follow, and I apologize for that.
“The document you filed with the Court ... that was designed to help the Court come to what you thought was the right decision; correct?
“[Matei:] Is not what I thought or what I think. It is the facts. The fact is that Judge Schmisseur screw[ed] up.”
Matei contends that the prosecutor's admission that he posed a poorly worded a question to Matei is an admission that the prosecutor committed misconduct.
The State argues that Matei failed to preserve the abusive-questioning argument for appellate review because he did not object to the question at trial on the grounds that it was abusive or argumentative. The State's point is well taken.
Although we can review some complaints of prosecutorial misconduct on appeal even in the absence of an objection—such as complaints that a prosecutor made improper statements in opening or closing arguments—the Kansas Supreme Court has applied a more restrictive rule to misconduct that arises during the evidentiary process. See State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). Because cross-examination occurs during the evidentiary process, the defendant must object at trial contemporaneously to the questions he or she contends were improper. 288 Kan. at 349 (noting that K.S.A. 60–404 requires that evidentiary claims—including claims regarding the propriety of a prosecutor's questions—must be preserved by a contemporaneous objection for those claims to be reviewed on appeal); accord State v. Huerta–Alvarez, 291 Kan. 247, Syl. ¶ 9, 243 P.3d 326 (2010). The objection must be specific and alert the district court to the specific grounds on which the defendant is objecting. King, 288 Kan. at 349.
Matei's attorney objected at trial to the question Matei now contends was abusive, but he did not object to it on the grounds that it was abusive. Rather, his questions to the court about whether the prosecutor was going to amend the State's complaint suggest that his objection was based on the question's relevance ( i.e., the State would have to charge Matei with an additional offense to have the persuasiveness of the document matter). Because neither Matei nor his attorney objected to the question on the grounds that it was abusive, Matei has not preserved an objection on that basis for appellate review. See State v. Hardin, 49 Kan.App.2d 81, 87, 304 P.3d 354, rev. denied 298 Kan. –––– (October 30, 2013).
Even if we could consider Matei's claim, however, he has not shown misconduct. Matei is right that a prosecutor can commit misconduct by asking argumentative, abusive, or inflammatory questions or questions that cause undue embarrassment. See State v.. Morris, 40 Kan.App.2d 769, 790–91, 196 P.3d 422 (2008). Further, a prosecutor may not pose questions to harass, annoy, intimidate, or humiliate witnesses. 3 Barbara, Kansas Law and Practice, Lawyer's Guide to Kansas Evidence § 9.3 (5th ed.2013); 98 C.J.S., Witnesses § 563. On the other hand, a confrontational style of posing a question does not automatically translate into a finding of misconduct unless the prosecutor's method is calculated to produce a wrongful conviction because cross-examination, by its very nature, is argumentative. See State v. Abu–Fakher, 274 Kan. 584, 615, 56 P.3d 166 (2002) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed.2d 1314 [1935] ); State v. Peterson, No. 89,752, 2004 WL 2796395, at *1–3 (Kan.App.2004) (unpublished opinion), rev. denied 219 Kan. 1009 (2005).
The prosecutor's question here—whether Matei intended the document he filed with the court and then gave to the judge's wife to be persuasive—was not abusive, argumentative, or inflammatory. It was not asked to embarrass, annoy, or humiliate Matei, nor was it confrontational. Though Matei may have been upset by the question and wary of the prosecutor's motive once his attorney objected, nothing in the record suggests the prosecutor attempted to humiliate or abuse Matei. In fact, the prosecutor even apologized to Matei once it was brought to his attention that the question he had posed was difficult to follow. The prosecutor did not commit misconduct when cross-examining Matei.
2. The Prosecutor Did Not Commit Misconduct by Misstating the Evidence.
Matei also contends that the prosecutor committed misconduct by misstating the evidence during his closing arguments. Matei did not object at trial to the prosecutor's statements during closing arguments, but a contemporaneous objection is not required to preserve for appeal the issue of a prosecutor's potential misconduct during closing arguments. King, 288 Kan. 333, Syl. ¶ 8.
We review allegations of prosecutorial misconduct during opening and closing arguments using a two-step analysis. 288 Kan. 333, Syl. ¶ 8; accord State v. Akins, 298 Kan. 592, Syl. ¶ 1, 315 P.3d 868 (2014). First, we decide whether the comments the defendant complains of were outside the wide latitude a prosecutor is allowed in discussing the evidence. Second, if we find misconduct, we must determine whether the prosecutor's errors denied the defendant a fair trial. 298 Kan. 592, Syl. ¶ 1.
Matei objects to two statements he contends the prosecutor made: (1) that Matei intentionally drafted a document for Mrs. Schmisseur; and (2) that Matei told Mrs. Schmisseur to give the document to her husband so that he would have the correct information. Matei contends that the prosecutor made both of these erroneous statements when he was summarizing Mrs. Schmisseur's testimony:
“Defendant introduced himself, told her that her husband was a good guy, but he made the wrong decision and that ... Mrs. Schmisseur couldn't remember his exact words, but she said that the gist of the conversation was that he had ... some information that he needed to give to her so that she could give to her husband, so that he would have all the information necessary to make a right decision.
“That's the, in a nutshell, the evidence that you guys heard yesterday.”
Matei believes that the prosecutor misstated these things because he says he did not bring Mrs. Schmisseur the document so that she would give it to her husband, but so that she would read it herself. He argues that his position is supported by the fact that the judge already had two copies of the document he gave Mrs. Schmisseur.
An attorney may not make comments in closing argument about facts that are not in evidence or misstate facts to inflame the passions or prejudices of the jury. State v. Stimec, 297 Kan. 126, 128–29, 298 P.3d 354 (2013); see Akins, 298 Kan. at 601; Rule 3.4(e) of Kansas Rules of Professional Conduct (2013 Kan. Ct. R. Annot. 601) (“A lawyer shall not ... in trial, allude to any matter that ... will not be supported by admissible evidence....”). Accordingly, if a prosecutor states facts that are not in evidence during closing arguments, he or she has met the first step of the prosecutorial-misconduct test. Akins, 298 Kan. at 601; State v. Simmons, 292 Kan. 406, 414, 254 P.3d 97 (2011).
But the prosecutor accurately summarized Mrs. Schmisseur's testimony. Mrs. Schmisseur said during direct examination almost exactly what the prosecutor said she had: that Matei approached her and told her that he had a case in front of her husband, that her husband didn't have all the information he needed, and that he wanted her to read the document he brought and pass it along to her husband:
“He just had an envelope.
“[H]e just mentioned that he had either a case in front of—he had a case, but [Judge Schmisseur] didn't have all the information he needed; that he—there was some information that I got the impression he wanted me to read and pass that on to [Judge Schmisseur] or give it to [Judge Schmisseur], but that he didn't have all the information he needed and whatever was in this envelope would help.”
Further, when Matei asked Mrs. Schmisseur what they talked about, her story—that Matei was giving her information so she would share it with her husband—remained consistent:
“Pretty much [we] talked about that Bob or Judge Schmisseur was a pretty good guy, but he didn't have all the facts about something and that [Matei] had some information that he needed.
“I took it that you wanted me to read that document and pass ... along [what] I deducted from that to [Judge Schmisseur].”
While Matei and Mrs. Schmisseur may have had different recollections of—and understandings about—their conversation, the prosecutor did not go beyond reasonable inferences from her testimony. See State v. Hall, 292 Kan. 841, 848, 257 P.3d 272 (2011) (finding that where prosecutor accurately summarized the witnesses' testimony, the prosecutor did not commit misconduct). We find no misconduct by the prosecutor in closing argument.
IV. The Trial Judge Did Not Commit Misconduct.
Matei's fourth complaint of error is that the district judge—Judge William F. Lyle, Jr.—committed misconduct while presiding over Matei's trial. Matei notes several rulings that were adverse to him. Specifically, Matei argues Judge Lyle committed misconduct by denying Matei's motion for acquittal and by excluding some of Matei's evidence. Matei believes that Judge Lyle also engaged in misconduct by not instructing the jury that certain witnesses were lying.
We can review judicial misconduct on appeal even when a defendant does not object to it at trial if the defendant alleges that his or her right to a fair trial was violated. State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002). We review the record independently to determine whether judicial misconduct occurred. State v. Plunkett, 257 Kan. 135, Syl. ¶ 1, 891 P.2d 370 (1995). The party alleging judicial misconduct bears the burden of showing that his or her substantial rights were prejudiced. State v. Gadelkarim, 256 Kan. 671, 681, 887 P.2d 88 (1994), overruled on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006).
Making rulings favorable to the prosecution generally does not constitute judicial misconduct, especially when the court's rulings are defensible, because the trial judge has broad discretion in controlling trial proceedings. See State v. Diaz & Altemay, 232 Kan. 307, 312–14, 654 P.2d 425 (1982) (denying defendant's complaint that district judge committed misconduct by making rulings favorable to the State when defendant did not prove prejudice and some of the contested rulings were appropriate). Though it is possible for a judge to abuse his or her power by using abuse-of-discretion review to shield evidentiary rulings designed to prejudice the rights of a litigant, making rulings adverse to a party is generally not evidence of this type of malfeasance. Stephenson v. Wal–Mart Supercenter, No. 95,248, 2007 WL 1461332, at *2 (Kan.App.2007) (unpublished opinion).
Matei points to no evidence that Judge Lyle acted with the intent to harm him. Nor, after reviewing the record, do we see any pattern of inappropriate rulings. Though Judge Lyle did make some rulings that favored the State, these rulings were justified, and the bases for the ones challenged on appeal are explored in other sections of this opinion. Relief for judicial misconduct is only available if the misconduct prejudiced a party's substantial rights. Miller, 274 Kan. at 118; Stephenson, 2007 WL 1461332, at *2. But Matei has failed to show any error by Judge Lyle that prejudiced Matei's substantive rights. We find no support here for a claim of judicial misconduct.
V. The District Court Did Not Err by Excluding Certain Evidence.
As we understand it, Matei also claims that the district court's exclusion of evidence substantially deprived him of the chance to present his defense. Matei framed this argument as one about prosecutorial misconduct, saying that the prosecutor should not have objected to his evidence, but the essence of Matei's argument is that the jury was prevented from considering certain evidence. Because Matei is self-represented, we liberally construe his brief as objecting to exclusion of this evidence. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). We discuss below each item of evidence that Matei claims was wrongly excluded.
1. The District Court Properly Excluded Matei's Criminal Record.
Matei argues that the district court erred by excluding a record showing his past arrests and convictions. Matei attempted to introduce this criminal-history report during his cross-examination of Officer Ward. The State objected that Matei's criminal history wasn't relevant to whether he attempted to influence a judicial officer, and the court agreed. Matei argues that it was relevant because it showed he had not been convicted of other crimes he had been charged with. He argues that this demonstrates he was falsely accused of sexual battery and potentially falsely accused in this case.
To determine whether the district court erred, we must first determine whether the report was relevant. State v. Marks, 297 Kan. 131, 141, 298 P.3d 1102 (2013); State v. Srack, 49 Kan.App.2d 761, 772, 314 P.3d 890 (2013). Generally, all relevant evidence is admissible unless prohibited by statute. K.S.A. 60–407(f). Evidence is relevant if it has any reasonable tendency to prove a material fact. K.S.A. 60–401(b). Relevant evidence must therefore be both material and probative. Material evidence helps establish a fact at issue that is significant under the law of the case. Marks, 297 Kan. at 142. Probative evidence furnishes or contributes to proof. State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010).
Matei's criminal-history report was not material because it didn't tend to establish a fact at issue under the substantive law in this case. That Matei had been charged with but not convicted of other crimes does not make it more or less likely that he attempted the crime of attempting to influence a judicial officer. His criminal history was particularly irrelevant in this case where so few facts were contested: Matei admitted to approaching Judge Schmisseur's wife and to giving her a document that he felt told the truth about his underlying conviction. The only disputed issue was whether Matei had given Mrs. Schmisseur the document in an attempt to influence Judge Schmisseur. Matei's criminal-history report would not have clarified what motive Matei had when he brought the document to Mrs. Schmisseur. Because Matei's criminal-history report was not relevant, the district court didn't err by excluding it.
2. The District Court Properly Excluded an Oral Reading of the Document Matei Gave to Mrs. Schmisseur.
Matei also complains that the district court erred by excluding the document he brought to Mrs. Schmisseur, which was a copy of the document that he filed in his case in front of Judge Schmisseur. But this document was admitted into evidence—by the State, in fact—and therefore the district court did not exclude it.
Matei nonetheless appears to complain that the district court erred by denying his request to have one of the witnesses read it aloud to the jury after it had already been admitted into evidence. The district court denied Matei's request as cumulative, noting that the document did not need to be read because it was already in evidence. Matei complains that when he followed up with the jury's foreman after trial, the foreman told Matei that the jury had not read the document before deciding the case.
We review a district court's decision to exclude evidence on the basis that it is cumulative only for an abuse of its discretion. State v. Rodriguez, 295 Kan. 1146, Syl. ¶ 7, 289 P.3d 85 (2012). Judicial discretion is abused when the district court bases its decision on an error of fact or law or when its decision is so off the mark that no reasonable person would agree with it. 295 Kan. 1146, Syl. ¶ 8.
A district court has broad discretion to exclude relevant evidence if it proves the same point as other evidence or if the evidence is only relevant for a tangential or insignificant point. See State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006); Doty v. Wells, 9 Kan.App.2d 378, 379–80, 682 P.2d 672, rev. denied 235 Kan. 1041 (1984). Accordingly, although parties are often allowed to read to the jury from admitted exhibits during a trial, a party has no automatic right to do so. See 23A C.J.S., Criminal Law § 1641; accord Marziale v. Gama, 121 R.I. 929, 930, 395 A.2d 1067 (1978). We find no error here in the district court's decision not to allow a witness to read this document aloud. The witness had no special knowledge of the document, and it had already been admitted.
Matei also claims that even though the document was admitted, the jurors didn't read it during their deliberations. The jury was instructed to consider and weigh everything admitted into evidence, and this document was admitted. But the jurors are responsible for deciding what weight or credit to give testimony or other evidence. The jury may give some evidence considerable weight and other evidence none at all. See State v. Hargrove, 48 Kan.App.2d 522, 561–62, 293 P.3d 787 (2013). This is especially true here, where a jury could convict Matei of attempted attempting to influence a judicial officer if he intended to do so, regardless of what the document he wrote to exert that influence actually said. See K.S.A.2010 Supp. 21–3301(a); K.S.A. 21–3815.
3. The District Court Properly Excluded the Audio Recording of Matei's Interview with Police.
Matei also complains that the district court excluded an audio recording of an interview of him conducted by Officer Ward. At trial, Matei asked the court if he could play the recording. The prosecutor objected to this because Matei had neither moved for its admission nor laid an evidentiary foundation for admitting it. The court gave Matei time to visit with the attorney who was originally appointed to represent him about how to lay a foundation to have the recording admitted. Matei met with the attorney for about 12 minutes; after that, the attorney told the judge that Matei no longer wanted to introduce the recording. It is this recording that Matei now complains the court erred by excluding.
The State argues that since Matei withdrew his request to admit the tape by not seeking to have it admitted again after the court's brief recess, the district court never ruled on its admissibility and this court cannot review whether it should have been admitted. That appears to be the case. But even if we assume for argument's sake that the court excluded the recording because Matei hadn't laid a proper foundation and that Matei never withdrew his request to admit the recording, the district court didn't err.
The foundational requirements for admitting a recording are well established and require the party seeking to admit it to demonstrate that the recording device was capable of recording; the operator competently operated it; the recording was authentic and correct; the recording hadn't been changed, added to, or deleted from; the recording was preserved in an appropriate manner; and the statements on it were made voluntarily. The party must also identify the speakers on the recording. State v. Snow, 282 Kan. 323, 328–29, 144 P.3d 729 (2006), disapproved on other grounds by State v. Gruder, 293 Kan. 763, 267 P.3d 751 (2012). Because Matei did not lay a foundation for the recording—even after he was given time to consult with his attorney about the issue—the district court didn't err by excluding it (assuming, based on Matei's argument on appeal, that it did so).
VI. The District Court Properly Instructed the Jury.
Matei next complains that the district court erred by not giving two different jury instructions: (1) an instruction on the range of penalties he could incur if convicted of attempted attempting to improperly influence a judicial officer; and (2) an instruction defining “improperly influence” as it is used in the statute he was charged under.
Neither Matei nor his attorney proposed these instructions at trial or objected to their omission. Accordingly, we review the district court's decision not to give an instruction only for clear error. See K.S.A. 22–3414(3); State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002). The district court's decision constitutes clear error when this court finds that the instruction would have been legally and factually appropriate in light of the entire record and, if so, the court also is firmly convinced that the jury would have reached a different verdict if the omitted instruction had been given. State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012).
Matei's instruction on the range of penalties was not appropriate in this case. The jury was not responsible for determining Matei's sentence, and it did not need an instruction on the possible sentences for the crime to decide if Matei attempted to influence a judicial officer. See State v. Yardley, 267 Kan. 37, 42, 978 P.2d 886 (1999) (noting defendant's argument that his sentence should concern the jury must fail because juries should not consider a case's ultimate disposition). Because it was not appropriate to inform the jury of the penalties, the district court's failure to do so wasn't error, clear or otherwise.
As for an instruction on the meaning of “improperly influence,” Matei has not explained why the court needed to define that term for the jury on the facts of this case. Though instructions must explain the crime charged in precise language that sets forth its critical elements, it is not necessary to define every word or phrase used in a crime's instructions. State v. Brown, 6 Kan.App.2d 556, 560–61, 630 P.2d 731 (1981). Only when the instructions—read as a whole—would mislead the jury or cause it to speculate must additional terms or phrases be defined. 6 Kan.App.2d at 561.
Our Supreme Court has said that if a person of ordinary intelligence can understand a word or phrase, it does not require additional definition. State v. Roberts–Reid, 238 Kan. 788, 789, 714 P.2d 971 (1986); see State v. Phelps, 28 Kan.App.2d 690, 695, 20 P.3d 731, rev. denied 271 Kan. 1041 (2001). Accordingly, when a word or phrase in an instruction is meant to have its common meaning, the court does not err by not further defining it. See 28 Kan.App.2d at 695; see also State v. Schwarm, 271 Kan. 155, 165, 21 P.3d 990 (2001) (noting that where defendant wanted jury to give “medical purpose” its ordinary meaning, the district court didn't err by not defining it); State v. Moody, No. 94,190, 2006 WL 1816324, at *2 (Kan.App.) (unpublished opinion) (noting that because “the common usage of ‘willful’ and [the defendant's] requested instruction are nearly identical, the jury could not have been mislead by the instructions as a whole”), rev. denied 282 Kan. 794 (2006).
The common meaning of “improperly influence” is to impermissibly change someone's behavior or thinking. See American Heritage Dictionary 884 (5th ed.2011) (defining “improper” as “[n]ot consistent with established ... rule”); American Heritage Dictionary 901 (5th ed.2011) (defining “influence” as “to change the behavior or thinking of someone; sway”). Matei does not argue that “improperly influence” in the context of the instructions should be interpreted differently from the way the phrase is commonly used. Since a person of ordinary intelligence could understand the phrase as it was used, the district court did not need to define it.
The district court used a pattern jury instruction that does not define “improperly influence.” See PIK Crim.3d 60.16. Our Supreme Court has strongly recommended using pattern instructions, noting that district courts should not hesitate to modify or add to the pattern instructions whenever the facts of a particular case require it. State v. Dominguez, 299 Kan. 567, 576, 328 P.3d 1094 (2014); State v. Dixon, 289 Kan. 46, Syl. ¶ 10, 209 P.3d 675 (2009). But Matei has not shown how the facts in his case warranted a change from the pattern instruction. Matei has not shown clear error in the failure to provide a definition of the term “improperly influence” in this case.
Matei does make one other objection to the district court's jury instructions. He contends that the district court erred by instructing the jury that its verdict had to be unanimous, when in fact the jury could have failed to agree on a verdict, which would have resulted in a mistrial (and a second trial for Matei if the State chose to proceed with one).
The district court's instruction that the jurors must reach unanimous agreement was correct: Kansas law requires juror unanimity. See State v. Wright, 290 Kan. 194, Syl. ¶ 1, 224 P.3d 1159 (2010), disapproved of on other grounds by State v. Brooks, 298 Kan. 672, 317 P.3d 54 (2014); K.S.A. 22–3421. A verdict has no legal effect unless all of the jurors agree to it in open court. State v.. Johnson, 40 Kan.App.2d 1059, 1076, 198 P.3d 769 (2008).
Though Matei is correct that a hung jury—which exists when jurors do not agree on a verdict—results in a mistrial, this does not undermine the fact that a jury's verdict must be unanimous to stand. See K.S.A. 22–3423(1)(d). A district court does not have to instruct a jury that the failure to agree on a unanimous verdict will result in the charges remaining undecided, even when the jury asks what will happen if it cannot agree on a verdict. See Johnson, 40 Kan.App.2d at 1071–72. Matei did not object to the district court's unanimity instruction, and we find no error in the instruction given.
VII. Neither the Judge Nor the Prosecution Withheld Evidence Material to Matei's Case.
In Matei's reply brief, he makes another argument: he contends that both the judge and the prosecutor violated the law of Brady v.. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), under which the State has affirmative-disclosure obligations in criminal cases. See State v. Warrior, 294 Kan. 484, Syl. ¶ 7, 277 P.3d 1111 (2012); Boorigie v. State, No. 101,030, 2010 WL 2816794, at *15–16 (Kan.App.2010) (unpublished opinion). We could decline to consider this issue at all because the appellant is not allowed to raise new issues in a reply brief. See Supreme Court Rule 6.05 (2014 Kan. Ct. R. Annot. 48); State v. McCullough, 293 Kan. 970, 984, 270 P.3d 1142 (2012).
But even if we were to consider this argument, it has no merit. Matei contends that the judge committed numerous acts that Matei contends violate Brady, often the same errors Matei has separately complained about in this appeal. But Brady relates to the obligations of prosecutors, not judges, and Matei has not shown any way in which any action by the trial judge here could even potentially fit within the Brady analysis.
Matei also claims that the prosecutor violated Brady at numerous points throughout the trial, specifically by telling Judge Schmisseur, Mrs. Schmisseur, and the other State witnesses to falsely testify and by excluding Matei's evidence. Matei points to no evidence that the State coerced false testimony from the witnesses or that the facts the witnesses presented were false. While Matei may disagree with the State's version of the facts, we generally must accept the facts on appeal in the light most favorable to the State since the factfinder, the jury, found in the State's favor. See State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007). Matei has not shown any Brady violation by the State.
We affirm the district court's judgment.