Opinion
No. 105,292.
2012-08-3
STATE of Kansas, Appellee, v. Shawn Baker McWILLIAMS, Appellant,
Appeal from Johnson District Court, SARA WELCH, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Emilie Burdette and Steven J. Obermeier, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court, SARA WELCH, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Emilie Burdette and Steven J. Obermeier, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Shawn Baker McWilliams was convicted of battery and two counts of criminal threat following a June 2010 altercation with Wanda Ward and Gary Webb, Ward's mentally disabled brother. McWilliams had been living with Ward and Webb for about 6 months. McWilliams was depressed and upset over the death of a friend and the fact that he did not have enough money to attend his friend's funeral. He began drinking early in the day and continued into the evening hours. Ward testified that McWilliams consumed most of a 30–pack of beer, an additional 6–pack of beer, and most of a pint of whiskey. The altercation occurred in the early morning hours that followed and ended at about 2:30 a.m.
The next morning, Ward called Kathy Wallace, McWilliams' former fiancee, and told her what had happened the night before. Wallace called the police, and McWilliams was arrested.
Following his convictions and sentencing and the court's denial of his motion for a new trial, McWilliams appealed, claiming trial errors in the court's handling of the jury's requests to have the trial testimony of two witnesses read back to it. He also claims the district court erred in instructing the jury.
Jury's Request for a Read-back of Testimony
During its deliberations the jury requested that Ward's trial testimony be read back to it. The jury also requested a read-back of Olathe Police Officer Brian Hill's testimony. McWilliams argues that the district court erred in (1) responding to the jury's requests in writing and outside of the presence of McWilliams and his counsel; (2) sending Judy Hamons, the court's bailiff, into the jury room to ask for clarification of the jury's request; and (3) directing the court reporter to read back the requested testimony in the jury room without McWilliams being present. McWilliams contends that these procedures violated the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution because they denied him his right to be present at every critical stage of his trial. See K.S.A. 22–3405(1); State v. McGinnes, 266 Kan. 121, 127, 967 P.2d 763 (1998). He also claims these procedures violated his statutory rights under K.S.A. 22–3420(3), and denied his right to a public trial guaranteed by the Sixth Amendment and § 10 of the Kansas Constitution Bill of Rights. Finally, he claims the court's read-back procedure denied him his constitutional right to an impartial judge.
During its deliberations, the jury sent the following note to the judge:
“Request List”(A)
PoliceScript/ Police Report “(B) WandaScript/Police Statement “(C)
GaryWritten statement?
“Recording?”
Before responding, the district judge met with the prosecutor, McWilliams, and his counsel in the courtroom and on the record. The court recited the jury's request and then stated:
“It's a little unclear exactly what they're requesting, but what I'm going to proposeit looks to me like they want police reports and police statements, and 1 know that both of you referred to Wanda's statement and also a preliminary hearing transcript. I distinctly remember, at least it was clear to me, there was no written statement or recording from Gary. But I am going to propose the following reply, that being you have received all of the evidence in this case. Please refer back to Instruction Number 2. And Instruction Number 2 is PIK 51.04. ‘In your fact finding you should consider and [weigh] everything admitted into evidence,’ and the rest of 51.04. With respect to the second half of this request which may be a request for a read back, may be a request for a preliminary hearing transcript; I suggest putting please clarify your request with respect to witness Wanda Ward. The Court is unsure what [you're] asking for. Do the parties have any other suggestions or have any objection to the Court responding in that way?”
Both the prosecutor and defense counsel responded, “No, Your Honor.” There was no suggestion of a different procedure.
The court then wrote out its response in the presence of counsel and again asked if either party had an objection. Again, both the prosecutor and defense counsel responded, “No, Your Honor.” The court asked the parties a third time if either party had an objection to its written response to the jury, and both counsel said, “No, Your Honor.” The court's written response to the jury was:
“You have received all of the evidence in this case. Please refer to instruction # 2. “Please clarity your request as it relates to witness Wanda Ward. Please refer to Instruction # 19.”
The jury responded with a second note, which said:
“ Request ” (1) We would request that Wanda's testimony be read back to us.”
The court again met with the prosecutor, McWilliams, and his counsel, Kasey Hollinrake. The judge read the jury's request to them and stated:
“I was still unclear whether they meant a transcript of her testimony, the preliminary hearing transcript which was referred to by Ms. Hollinrake, or her testimony. So, Ms. Hamons went back and asked for clarification, and what they want is Wanda's testimony to be read back to them. And Ms. Hollinrake, I then had you talk to your client to find out whether he wanted to be present for that read back, and he does not want to be present for that read back. Is that correct?”
Hollinrake responded, “That's correct, Your Honor.” The judge then continued:
“They want to go home tonight and have the read back in the morning. So, we will have them arrive at 9:00, and then I'll send—we'll call them into the courtroom to begin the day, and I will send them back to the jury room for that read back.”
The court then called the jury back into the courtroom where the court, in the presence of the prosecutor, McWilliams, and his counsel, described the read-back procedure for the following day. After the jury was excused, the court ask counsel if they had anything else regarding this matter they wished to put on the record. Both counsel responded that they did not.
The next morning, the lawyers and McWilliams appeared and the court asked:
“We are outside the presence of the jury. This is Day 2. When last we left them, they were seeking the read back of the witness, Wanda Ward. Miss Hollinrake, is you client's position the same, that he does not want to be present for that read back?”
Hollinrake responded, “That's correct, Judge.”
The court then sent the jury to the jury room where the court reporter read back Ward's testimony. During the read-back of Ward's testimony, the court met again with the prosecutor, defense counsel, and McWilliams outside of the presence of the jury.
“THE COURT: ... Shortly after we last met, we received another question from the jury which says, ‘Police officer's testimony, read back, please,’ signed by the foreman on—whose signature I can't read. Ms. Hollinrake, right now Ms. Highberger is still in the process of reading Wanda Ward's testimony, but once she has completed that, she ... can begin the police officer's testimony.”
“Ms. Hollinrake, does your client wish to be present for that read-back?
“MS. HOLLINRAKE: No, Your Honor.
“THE COURT: Then we will have Ms. Highberger just go on and read that after Ms. Ward's testimony in the jury room, and we'll keep you updated on any further questions. Thank you.”
Preservation of Issue for Appeal
Because McWilliams never objected to the court's procedure for responding to the jury requests, we must first address whether McWilliams has preserved this issue for appeal. We recognize the general rule that issues not raised before the trial court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). This applies equally to constitutional grounds for reversal. State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). But the exceptions to this rule include (1) issues of law arising from admitted facts when resolution of the issue is determinative of the case, and (2) issues necessary to address to prevent a denial of fundamental rights. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
In State v. Groschang, 272 Kan. 652, 672–73, 36 P.3d 231 (2001), our Supreme Court declared that an issue regarding the district court's response to jury requests under K.S.A. 22–3420(3) may not be raised for the first time on appeal when the defendant clearly had the opportunity to voice an objection or provide an alternative response, yet he failed to do so. In Groschang, the jury asked to examine the Physician's Desk Reference (PDR) referred to by one of the witnesses at trial. After conferring with Groschang and the lawyers, the court sent the jury the sections of the PDR referred to in the testimony. On appeal, Groschang claimed the court erroneously left out a relevant section of the PDR. The Supreme Court stated:
“The record clearly shows that Groschang participated in the proceedings and was given the opportunity on the record to voice any objections or to suggest a different response. He did not do so. The time-honored rule that an issue not presented to the trial court may not be raised for the first time on appeal, State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992), also applies to jury requests under K.S.A. 22–3420(3).” Groschang, 272 Kan. at 672.
The rule in Groschang should apply with equal force when a defendant fails to object to the manner in which the court communicates with the jury. But we recognize that the exceptions to the general rule apply here, and the Supreme Court has considered similar claims of error regarding responses to jury questions without the defendant having raised an objection at trial. See State v. Bell 266 Kan. 896, 918–20, 975 P.2d 239 (1999), cert. denied 528 U.S. 905 (1999). Therefore, we will consider the issue.
Requirements Relating to Jury Questions and the Read–Back of Testimony
The procedures for handling jury questions and conducting a read-back of trial testimony in a criminal case are set forth in K.S .A. 22–3420(3), which provides:
“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 the 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.”
Whether the district court violated the procedures set forth in K.S.A. 22–3420(3) based upon the undisputed facts is a matter of statutory interpretation over which our review is unlimited. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
The manner of responding to the jury's request is within the district court's discretion. State v. Myers, 255 Kan. 3, 6, 872 P.2d 236 (1994). In doing so, the district court “is free to clarify the jury's read-back request where the read-back request is unclear or too broad.” 255 Kan. at 8.
But a criminal defendant has the constitutional and statutory right to be present at all critical stages of trial. A conference between the trial judge and the jury is a critical stage of the trial and, therefore, requires the defendant's presence. See K.S.A. 22–3405(1); State v. Fulton, 269 Kan. 835, 844, 9 P.3d 18 (2000); State v. Coyote, 268 Kan. 726, 731, 1 P.3d 836 (2000).
Though the United States Supreme Court has not considered the issue, see La Crosse v. Kernan, 244 F.3d 702, 708 (9th Cir.2001), Kansas considers a read-back of trial testimony to be a critical stage of the trial that requires the defendant's presence. State v. Acree, 22 Kan.App.2d 350, 353, 916 P.2d 61,rev. denied 260 Kan. 995 (1996). K.S.A. 22–3420(3) requires the district court to respond in open court and in the defendant's presence to any questions from the jury concerning the law or evidence pertaining to the case, unless the defendant is voluntarily absent. McGinnes, 266 Kan. at 127. However, the denial of this right does not require a reversal if the error was harmless. The court in Acree stated: “Constitutional error must never be taken lightly. Nonetheless, if the error did not adversely affect Acree's right to a fair trial, it would make no sense to set aside the verdicts and require another trial.” 22 Kan.App.2d at 355.
The foregoing constitutional and procedural requirements were not met in McWilliams' case. The questions then become (1) whether McWilliams waived his right to be present during these proceedings and thereby voluntarily absented himself, and (2) if he did not, whether the error was harmless. Even an error of constitutional magnitude may be deemed harmless if we are persuaded beyond a reasonable doubt that the error had no impact on the trial's outcome. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
The Read–Back of Ward's Testimony
In State v. Sandstrom, 225 Kan. 717, 721, 595 P.2d 324,cert. denied444 U.S. 942 (1979), our Supreme Court held that an attorney may waive a client's right to be present at trial if the record discloses that the defendant voluntarily waived the right to be present. But in State v. Gammill, 2 Kan.App.2d 627, 631, 585 P.2d 1074 (1978), this court held that an attorney cannot waive the defendant's right to be present during a read-back of testimony without first having discussed the matter with the defendant. In State v. Antwine, 4 Kan.App.2d 389, 401, 607 P.2d 519 (1980), we stated that a waiver may not be presumed from a silent record.
Here, we have the repeated consent of McWilliams' counsel to the procedure used by the district court in handling the jury's questions and the subsequent read-back. With respect to the Ward read-back, we have a record that satisfies Gammill when, at the end of the day before Ward's testimony was read to the jury, the judge said to McWilliams' counsel, “I then had you talk to your client to find out whether he wanted to be present for that read back, and he does not want to be present for that read back. Is that correct?” and McWilliams' counsel responded, “That's correct, Your Honor.” This is evidence in the record of McWilliams' waiver of the right to be present for the reading following a consultation with his lawyer on the matter. K.S.A. 22–3420(3) was satisfied because McWilliams voluntarily absented himself from the proceedings.
McWilliams was present during the court's earlier discussion about having the read-back occur in the jury room. His waiver of the right to be present was in the context of where the read-back would take place, which he well knew would be in the jury room. When he waived the right to be present during the read-back, he waived the right to be present during the read-back in the jury room.
The Read–Back of Hill's Testimony
We find no comparable evidence of waiver with respect to the reading of Police Officer Hill's testimony. There is no evidence in the record that counsel conferred with McWilliams before agreeing with the court's handling of the read-back of Hill's testimony. With no showing of waiver, we must determine whether the harmless error standard in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987 (1967), applies; that is, whether we can declare beyond a reasonable doubt that the error did not affect the outcome of the trial.
Chapman places the burden of proving harmlessness on the party benefitting from the court's erroneous ruling. The court stated:
“Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden of showing it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove there was no injury or to suffer a reversal of his erroneously obtained judgment.” 386 U.S. at 24.
Our Supreme Court recently reiterated the rule in Chapman regarding who bears the burden of showing the error was harmless when it stated in Ward, 292 Kan. at 568: “Chapman would require the party favored by the error— usually the State—to carry the burden of production.” (Emphasis added.)
Ward analyzed the burden of proving that the error was harmless in the context of the trial court's refusal to grant a mistrial after the State's witness identified two individuals in the courtroom in orange jail jumpsuits as persons who were with Ward at the time he was engaged in sales of crack cocaine. Not surprisingly, the cases involving application of the harmless error standard usually arise in a similar context: an erroneous court ruling that favors the State following some conduct by the State in the course of the trial.
Ward does not consider the burden of proof issue in the context of erroneous court action that appears to favor neither party. When that happens, does the State have the burden to show harmlessness or does the defendant who claims the error have the burden to show prejudice? Or is there a neutral position in which the appellate court does its own analysis to determine if the error was harmless under the Chapman standard?
It is apparent the State did not consider that it bore the burden of showing harmlessness. Had it anticipated that McWilliams would make this claim of error on appeal, the State could have interviewed jurors to determine if anything untoward occurred during the read-back. But McWilliams' counsel repeatedly expressed agreement with the procedure the court proposed, so the State considered this a nonissue at the time. On appeal, the State makes no effort to show that any error handling the jury questions and the read-back of testimony was harmless.
But in McWilliams' case we are not dealing with a situation in which the court erroneously admitted evidence offered by the State or any other such situation in which the State initiated some action which resulted in a favorable, albeit erroneous, court ruling. Here, the protocol for answering the jury's questions and providing it the read-back of testimony it requested was initiated and determined by the court with no prompting by the State. At that point in the proceedings, the State was merely along for the ride. Further, we have nothing to indicate that the method used to answer the jury's questions and to read back the testimony benefited the State in any way. Under these circumstances, the State does not bear the burden of proving the error was harmless.
Having raised the claim of error, we could rely on the long-standing rule that the defendant has the burden of showing prejudice. Crease v. State, 252 Kan. 326, 334, 845 P.2d 27 (1993). But here we will not put the burden on McWilliams. We will examine the record ourselves to determine if we can declare that there is any reasonable possibility that the error contributed to the verdict.
The facts we confront here are quite similar to those in Acree in which the jury asked to have certain testimony read back. The court asked the attorneys in chambers whether either objected to the court sending the court reporter to the jury room for the read-back. Neither attorney expressed an objection when asked, but there is no indication that defense counsel consulted with his client before responding. After concluding that “the trial court erred in allowing the court reporter to enter the jury room and read back a portion of the evidence outside the courtroom and the presence of the defendant,” the court considered whether the error prejudiced the defendant. After reviewing the testimony read back to the jury, the court concluded that “the error was harmless beyond a reasonable doubt.” Acree, 22 Kan.App.2d at 355.
Applying the same harmless error analysis employed in Acree, we see that the testimony of Officer Hill, which was read back to the jury, consisted of only nine pages. McWilliams argues that during the read-back the court reporter may have mistakenly read the transcript of conferences during Hill's testimony between court and counsel which were outside the hearing of the jury. There were no such bench conferences. McWilliams was also concerned the court reporter may have read testimony that had been stricken. There was none. He also expressed concern about the court reporter reading back questions to which the court sustained an objection. The only objections were to questions asked by McWilliams' counsel during cross-examination. The State's first sustained objection came after Hill had already answered the question in which he was asked whether McWilliams denied any threats of violence. Hill responded, “Yeah. He said Wanda was crazy.” The nonresponsive statement about Ward was favorable to McWilliams. If it was included in the read-back, and we have no reason to believe it was not, it was to McWilliams' benefit. If somehow it was not, the jury did not hear for the second time testimony to which the court had sustained an objection.
In his testimony Hill recounted the statements given to him by Ward and her brother about what happened that night. Ward and Webb had already testified about what happened. Much of Hill's testimony was cumulative. Ward testified that McWilliams held her down on the couch and would not let her up when she had to use the bathroom. As a result she had to urinate on herself and on the couch. She testified she had cleaned the couch before Hill arrived. Hill testified that when he arrived at about 1 p.m., many hours later, the couch appeared to be clean and free of stains. On cross-examination Hill testified that Ward did not tell him about some of the particulars she testified to at trial. But this had been covered in Ward's cross-examination when she admitted not telling the police about certain details she testified to at trial. It did not appear to Hill that Ward, Webb, or McWilliams was injured, and Ward testified that she did not have any marks on her body as a result of the incident. She testified, “I never kicked, clawed at him, anything” when McWilliams was holding her down. Ward was asked, “Were there any marks on Gary or Shawn? ... Were there any marks at all on you?” She responded, “No,” to both questions.
Having examined the transcript of Hill's trial testimony, we do not find any awkward phrasing, odd sentence structure, or unusual syntax that possibly could have tripped up the court reporter in reading back the testimony. Of course, we can conjure up all types of bizarre scenarios of court reporter malfeasance. Maybe the reporter, an officer of the court, purposefully changed a “Yes” to a “No.” Maybe the reporter provided her own editorial comment as she read the testimony. But we are mindful of the reasonable doubt standard of Chapman. Applying that standard, we are satisfied beyond a reasonable doubt that the read-back procedure employed by the court did not have an effect on the outcome of the trial.
Use of the Bailiff in Jury Communications
McWilliams also argues it was error for the court to send Hammons, the court's bailiff, into the jury room to deliver the court's written answer to the jury's note and later to ask the jurors for a clarification of their request.
Our Supreme Court considered similar facts in State v. McKinney, 272 Kan. 331, 33 P.3d 234 (2001). In McKinney, the defendant claimed the court erred when it sent the bailiff into the jury room to ask the jury to clarify its original request. The Supreme Court stated:
“K.S.A.2000 Supp. 22–3405, as well as the Sixth Amendment Confrontation Clause and the Fourteenth Amendment Due Process Clause of the United States Constitution, require the defendant's presence at every critical stage of a trial, including whenever the trial court communicates with the jury. State v. Bell, 266 Kan. 896, 919–20, 975 P.2d 239,cert. denied528 U.S. 905 (1999). Similarly, K.S.A. 22–3420(3) requires that once a jury has begun deliberations, any questions concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence, unless the defendant is voluntarily absent. 266 Kan. at 919. Under such circumstances, the defendant was required to be present, and the trial court's failure to do so violated the defendant's constitutional right to be present. 266 Kan. at 919–20.
“This issue is subject to the harmless error analysis. Thus, the error will be declared harmless if this court concludes that the error had little, if any, likelihood of having changed the result of the trial. 266 Kan. at 920.” 272 Kan. at 341–42.
See Ward, 292 Kan. at 566 (harmless error—error did not affect substantial justice, error did not affect outcome of trial; court now disapproves the “ ‘little, if any, likelihood” ‘ phrase previously used).
K.S.A. 22–3420(3) permits the interaction of the court's bailiff and the jury when jury questions arise. It specifically permits the jury “to request the officer to conduct them to the court, where the information on the point of the law shall be given.” But here, the use of the bailiff exceeded these bounds.
Applying the harmless error standards of Chapman, Ward, and Acree discussed earlier in connection with the read-back of testimony, we can conceive of no reasonable scenario—and neither party suggests one—in which the court's bailiff, the person designated by the court to act as the court's liaison with the jury, could have affected the outcome of the trial by carrying a handwritten note from the jury to the judge; and later by asking the jury, at the court's direction, to clarify whether the jury wanted the transcript of Ward's preliminary examination testimony, which was referred to in the trial, or Ward's trial testimony. The court should not have used Hammons as its emissary contrary to the requirements of K.S.A. 22–3420(3), but we find no reversible error in having done so.
The Right to an Impartial Judge
McWilliams argues that he was entitled to an impartial judge and when the judge was not present for the read-back of testimony, this was equivalent of having no judge at all. McWilliams relies on State v. Brown, 362 N.J.Super. 180, 827 A.2d 346 (2003), for support. In Brown the court found reversible error when a read-back of testimony was conducted in the jury room without the judge or the defendant being present. 362 N.J.Super. at 188–90. But in Brown the defendant objected to the read-back being conducted in this fashion. McWilliams did not object to the read-back procedure here. He waived his right to be present during the read-back of Ward's testimony, knowing that it would be in the jury room and without the judge being there. His counsel knew the same procedure would be followed in the read-back of Hill's testimony, but she interposed no objection.
We find no authority in Kansas or in the decisions of the United States Supreme Court that support the notion that the defendant was denied an impartial judge under circumstances such as we find before us. The cases we have examined involve judges who were clearly viewed as partial. In Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), for example, the issue was whether the defendant was tried before an impartial judge when the judge was the town mayor who received compensation from fees collected from convicted defendants.
We conclude that under the facts presented, McWilliams was not denied the right to have an impartial judge preside at his trial.
The Right to a Public Trial
McWilliams argues that reading the record of Ward's and Hill's testimony in the jury room deprived him of a public trial. McWilliams cites Arizona v. Fulminante, 499 U.S. 279, 308, 111 s.Ct. 1246, 113 L.Ed.2d 302 (1991), for support. Fulminante has nothing to do with public trials. Citing a footnote taken from Chapman, 386 U.S. at 23 n.8, in a dissent in Fulminante, 499 U.S. at 308, Chief Justice Rehnquist referred to the right to an impartial judge as an example of a fundamental right, citing Tumey, which we discussed earlier and which has nothing to do with the issue of public trials.
McWilliams also relies on Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), in which the trial court excluded the public from a 7–day evidentiary hearing on a motion to suppress. The Supreme Court stated:
“This Court has not recently considered the extent of the accused's right under the Sixth Amendment to insist upon a public trial, and has never considered the extent to which that right extends beyond the actual proof at trial. We are not, however, without relevant precedents. In several recent cases, the Court found that the press and public have a qualified First Amendment right to attend a criminal trial. Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596[, 102 S.Ct. 2613, 73 L. Ed .2d 248] (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555[,100 S.Ct. 2814, 65 L.Ed.2d 973] (1980). We also have extended that right not only to the trial as such but also to the voir dire proceeding in which the jury is selected. Press–Enterprise Co. v. Superior Court of California, 464 U.S. 501[, 104 S.Ct. 819, 78 L.Ed.2d 629] (1984). Moreover, in an earlier case in this line, Gannett Co. v. DePasquale, 443 U.S. 368[, 99 S.Ct. 2898, 61 L.Ed.2d 608] (1979), we considered whether this right extends to a pretrial suppression hearing. While the Court's opinion did not reach the question, [443 U.S.] at 392, a majority of the Justices concluded that the public had a qualified constitutional right to attend such hearings. [Citations omitted.]” Walter, 467 U.S. at 44–45.
The Court examined the salutary effect of public trials, noting:
• A public trial permits the public to see that the defendant “ “ “is fairly dealt with and not unjustly condemned.” “ “ 467 U.S. at 46.
• The presence of interested spectators keeps the prosecutor aware of the State's responsibilities and the importance of the prosecutor's functions. 467 U.S. at 46.
• ‘ “[J]udges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings.’ “ 467 U.S. at 46, n.4.
• “The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.' “ 467 U.S. at 46 n.4.
• A public trial “encourages witnesses to come forward and discourages perjury.” 467 U.S. at 46.
The general rule is clear: Eliciting testimony from witnesses and presenting documentary evidence in the course of the trial should take place in court proceedings that are open to the public. But it is equally clear that all these goals are achieved, and none is undermined, when, following the process in open court of selecting a jury, making opening statements, taking testimony and presenting evidence, making closing arguments, and instructing the jury on the applicable law, a read-back of testimony that was already given in open court takes place outside the presence of the public.
Here, the discussions of the jury's requests were conducted on the record in the courtroom and in the presence of McWilliams and his counsel. We find nothing to suggest that these conferences were closed to the public. The read-back in the jury room was of testimony which had been given under oath in open court the day before. The testimony read to the jury had been preserved by the court reporter and could be made available to any interested member of the public. It had been transcribed and is part of the court file which is open and available to the public, and it has been included in the record of this appeal.
McWilliams also relies on State v. Barnes, 45 Kan.App.2d 608, 612, 251 P.3d 96 (2011), for support. Barnes was tried and convicted of aggravated robbery. Near the end of the presentation of evidence, jurors complained that Barnes' sister was holding up her cell phone in a manner that suggested she was taking photographs of the jurors. The judge decided to close the courtroom to all members of the public and requested that Barnes' family not remain on the second floor of the courthouse where the trial was being conducted. After the courtroom had been closed to the public, the State presented a rebuttal witness, the court instructed the jury, and the parties made their closing arguments. On appeal the court found that the trial court's decision to deny all public access to the trial, rather than choosing the lesser remedy of selectively barring individuals such as Barnes' sister, violated Barnes' fundamental right to a public trial and could never be considered harmless. 45 Kan.App.2d at 612–15.
Unlike in Barnes, the public was never barred from the presentation of testimony, the court's instructions to the jury, or the parties' closing arguments in McWilliams' trial. All those events occurred in open court. McWilliams' trial was no Star Chamber proceeding. While we do not condone the practice of removing the reading of prior trial testimony from the public arena of the courtroom, we conclude beyond a reasonable doubt that the procedure employed here was harmless.
We conclude that none of McWilliams' criticisms of the district court's handling of the jury requests and the read-backs of testimony justifies a finding of reversible error.
Jury InstructionsVoluntary Intoxication
McWilliams takes a 180–degree turn in now claiming on appeal that he was intoxicated at the time of the altercation and the court should have instructed the jury on the defense of voluntary intoxication. At trial, McWilliams claimed there was no evidence that he had been intoxicated.
Of course, McWilliams did not request that the district court instruct the jury on voluntary intoxication. Therefore, we apply the clearly erroneous standard in reviewing this claim. See K.S.A. 22–3414(3); State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” 288 Kan. at 451–52.
If there is evidence to support it, a defendant is entitled to an instruction on the defendant's theory of defense. The evidence supporting the defendant's theory must be sufficient to justify a reasonable juror making a finding consistent with it. See State v.. Hendrix, 289 Kan. 859, 861, 218 P.3d 40 (2009).
K.S.A. 21–3208(2), which was in effect at the time of McWilliams' altercation, provided:
“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
Voluntary intoxication provides a defense “only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law.” K.S.A. 21–3208(1); see State v. Brown, 291 Kan. 646, Syl. ¶ 4, 244 P.3d 267 (2011); PIK Crim.3d 54.12–A–1.
Criminal threat is a specific intent crime. It requires that the threat to commit violence was made (1) with the intent to terrorize another or (2) in reckless disregard of the risk of terrorizing another. K.S.A.2009 Supp. 21–3419. Voluntary intoxication can negate the specific intent element of criminal threat. See Brown, 291 Kan. 646, Syl. ¶ 4.
There was plenty of evidence at trial that McWilliams was engaged in some serious drinking on the night of the altercation. But did McWilliams try his case on the theory that he was too drunk to form the requisite intent?
In her brief opening statement McWilliams' counsel did not suggest that the evidence would show that McWilliams was intoxicated that night. Ward was the State's first witness. In her extensive cross-examination of Ward, McWilliams' counsel reviewed Ward's direct testimony about McWilliams' drinking that night, but she never asked Ward if she thought McWilliams was drunk. She did not ask Ward if she thought McWilliams appeared so intoxicated that he could not appreciate what he was saying when he threatened her and her brother.
Webb, Ward's brother, then testified. McWilliams' counsel asked no questions about McWilliams drinking when she cross-examined Webb. The State's final witness was Officer Hill. On cross-examination, McWilliams' counsel asked if he observed “any evidence of a late night of hard drinking?” Hill responded that he did not. He said he did not see any containers around and the apartment looked clean and well-kept. Counsel asked if McWilliams appeared intoxicated when Hill first saw him. Hill said he did not.
At the close of the State's case, McWilliams' counsel moved for judgment of acquittal on the criminal threat charge, but made no mention of the evidence of drinking and did not argue that the State failed to prove the necessary specific intent. The court overruled McWilliams' motion, and the defense called Wallace, McWilliams' former fiancee, as his only witness. On direct examination Wallace was asked if McWilliams and Ward often fought. Wallace responded, “I don't think they had a wonderfully smooth relationship. Wanda is a drinker, and Shawn is a drinker, and I think it collides sometimes.” Wallace testified that Ward called her following the altercation.
“She said, ‘I need you to get over here right away. I need your help.’ I said, ‘Okay. Is Shawn drunk.” Is there a problem?’ And she said, ‘I just need you over here right away.’ ... I did call the police, and I did go over there. When I got there I should have known better, because Shawn was totally sober.”
McWilliams' counsel then asked Wallace, “[Y]ou saw no evidence of him being drunk at all?” Wallace responded, “No, ma‘am. I did not.” McWilliam's counsel asked, “Did you see any beer bottles, liquor bottles, anything around the apartment?” Wallace said she did not. Wallace was then asked, “Did it look like there was a late night of drinking?” Wallace said, “No.”
McWilliams' counsel renewed her motion for a judgment of acquittal at the close of all the evidence but made no mention of intoxication. Her motion was denied. In her closing argument McWilliams' counsel argued to the jury:
“Where is the evidence of this hard partying she testified Mr. McWilliams doing from 10 in the morning to around four? I believe she said that's roughly 15 hours of drinking. That'sshe testified 36 beers, a bottle of Jim Beam. Where is it? Who cleaned out the hard partying before the cops came over, before Kathy came over? And why was the defendant not intoxicated? Why is there no evidence he'd been drinking for 15 hours?”
We find State v. Sappington, 285 Kan. 158, 169 P.3d 1096 (2007), helpful. There, the defendant was convicted of three counts of first-degree murder and other heinous crimes. Sappington relied on the defense of mental disease or defect under K.S.A. 22–3220. At trial he did not request a voluntary intoxication instruction, but on appeal he contended that the court erred in not giving such an instruction anyway.
Our Supreme Court noted that while there was evidence of voluntary intoxication from PCP use, that was not Sappington's defense theory. Because the trial court had the duty to instruct the jury on Sappington's theory of the case, the court instructed the jury on the defense of mental disease or defect but not on voluntary intoxication. The Supreme Court stated:
“[W]e further acknowledge that ‘it is fundamental to a fair trial that the accused be afforded the opportunity to present his or her theory of defense, [citation omitted], and believe that imposing a defense upon a defendant which is arguably inconsistent with the one upon which he completely relies—by providing the jury a defense instruction that neither party request—sis akin to denying the defendant the meaningful opportunity to present his chosen theory of defense. A sua sponte instruction on voluntary intoxication runs the considerable risk of improperly interfering with Sappington's chosen defense and resultant trial strategy, which were presumably selected after consideration, and rejection, of other alternatives.” 285 Kan. at 165.
Voluntary intoxication was not McWilliams' defense theory, so the district court did not err in failing to instruct the jury on it.
Unanimity Instruction
Finally, McWilliams contends that the State introduced evidence of multiple and distinct acts that could have constituted the criminal threat charges and the battery charge, resulting in the need for a unanimity instruction. He contends the unanimity instruction the court gave to the jury was insufficient.
A defendant is entitled to a unanimous jury verdict. K.S.A. 22–3421; State v. Stevens, 285 Kan. 307, 313, 172 P.3d 570 (2007). A multiple acts case is one in which several distinct and separate acts are alleged, any one of which could constitute the crime charged. In a case involving multiple acts, unless the State elects what act it is relying on to base a conviction, a unanimity instruction is required to make sure the jurors understand that they must unanimously agree on the act constituting the crime. See State v. Colston, 290 Kan. 952, 968–69, 235 P.3d 1234 (2010); State v. Sanborn, 281 Kan. 568, 569, 132 P.3d 1277 (2006).
McWilliams did not object to the district court's unanimity instruction so we apply the clearly erroneous standard of review. See K.S.A. 22–3414(3); Martinez, 288 Kan. at 451.
The court's instruction stated: “You must all agree that the same underlying criminal act has been proven beyond a reasonable doubt to support your findings as to each Count charged.” This differs from the PIK instruction, PIK Crim.3d 68.09–B, which states: “The State claims distinct multiple acts which each could separately constitute the crime of___ In order for the defendant to be found guilty of___ you must unanimously agree upon the same underlying act.” The district court's instruction omitted the PIK words: “The State claims distinct multiple acts which each could separately constitute the crime of___.”
In closing argument the State effectively elected one distinct act to support each crime charged. See Colston, 290 Kan. at 968–69. For Count I, the State informed the jury that it was relying on McWilliams' threat to Webb that he must stay in his bedroom or he would be harmed. For Count II, the State indicated it was relying on McWilliams' statement to Ward: If you go to sleep, you won't wake up.” ‘ (Count III was the domestic battery charge, for which McWilliams was acquitted.) Finally, in Count IV, the State told the jury that it was relying on McWilliams' act of pulling Webb onto the couch and choking him.
Instruction 11 varies slightly from the recommended PIK instructions but in an inconsequential way. It contains a correct statement of the law and is not erroneous, let alone constituting the clear error that McWilliams must show. We are satisfied it neither confused nor misled the jury. But the controlling fact is that the instruction is superfluous in light of the State's election in its closing argument, which obviated the need for a unanimity instruction. We find no merit in this claim of error.
Affirmed.