Opinion
No. 106,807.
2013-02-1
STATE of Kansas, Appellee/Cross-appellant, v. Samuel REED, Appellant/Cross-appellee.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge. Richard Ney, of Ney & Adams, of Wichita, for appellant/cross-appellee. Boyd K. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee/cross-appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Richard Ney, of Ney & Adams, of Wichita, for appellant/cross-appellee. Boyd K. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee/cross-appellant.
Before GREEN, P.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
ARNOLD–BURGER, J.
Samuel Reed and Michael Price went to Amos Becknell's house with the stated purpose of fighting him. When they arrived, one of them got out of the car and shot Becknell, wounding him in the back and the leg. They were both charged with attempted first-degree murder, and both pointed the finger at the other as the trigger man. Price accepted a plea deal and agreed to plead guilty to two counts of aggravated battery and to testify truthfully in Reed's case. All of the witness' testimony, except Reed's testimony, pointed to Reed as the shooter. A jury convicted Reed of attempted first-degree murder, and he received a durational departure sentence of 272 months in prison. Reed raises several evidentiary errors on appeal, although none of them were the subject of a K.S.A. 60–404 contemporaneous objection and therefore cannot be considered pursuant to our Supreme Court's ruling in State v. King, 288 Kan. 333, 348–49, 204 P.3d 585 (2009). However, he also raises claims of ineffective assistance of counsel, which were fully considered following an evidentiary hearing in the district court. Accordingly, to the extent that Reed's counsel's acquiescence in or failure to object to evidentiary issues at trial relate to an ineffective assistance of counsel claim, we consider them here.
Reed claims his counsel was ineffective for: (1) agreeing to the admission of Becknell's preliminary hearing testimony; (2) agreeing to close the courtroom so the court could consider whether Becknell was unavailable to testify; (3) failing to object when the prosecutor questioned Price about his agreement to testify truthfully; and (4) failing to object to the admission of gang evidence and prior bad act evidence in violation of the order in limine. He also alleges the following constitutional violations: (1) his right to a public trial was violated when the court closed and locked the courtroom in order to consider Becknell's availability to testify; (2) his right to a fair trial was violated when the prosecutor presented an imaginary script during closing argument; and (3) his sentencing guidelines sentence was unconstitutional as cruel and unusual punishment. The State cross-appealed the district court's decision to grant a downward durational departure, arguing there was not a substantial and compelling reason to depart from the presumptive prison sentence. Finding no error, we affirm the district court's decision.
Factual and Procedural History
The undisputed facts in this case are that on the morning of September 6, 2010, Reed borrowed Courtney Lee's blue car. She only gave him her car after he and Price assured her that they were not going to use it to go to Becknell's house and shoot him. She was afraid they were going to use her car for a drive-by shooting. They assured her that they were only going to fight him and that no one would see her car. Price knew Becknell, but Reed did not. Reed had Lee's car for approximately 30 minutes. Reed drove the car while Price was in the passenger seat. There was no one else in the car. Upon arriving at Becknell's house, either Reed or Price exited the car, confronted Becknell, and shot him once in the back and once in the leg. Reed was driving when they left the scene. Reed is 5'6? in height and weighs 160 pounds. Price is 6 feet in height and weighs 210 pounds. Becknell survived the shooting. The question at Reed's trial for attempted first-degree murder came down to which one shot Becknell—Reed or Price—because each pointed to the other. They were both charged with attempted first-degree murder.
Price subsequently entered a plea agreement in which he agreed to plead guilty to two counts of aggravated battery and to testify in Reed's trial. In exchange, the State agreed to recommend presumptive prison at the high number in the sentencing guidelines box, but it also agreed to recommend that his sentences run concurrently. Price was free to argue for an alternative disposition.
The testimony at Reed's trial clearly pointed to Reed as the shooter.
According to Becknell's mother, on the morning of the shooting, as she was walking along the sidewalk near her home, she saw a blue car pull up and the unknown driver exit the car and approach her son Becknell. Becknell's mother looked away and heard several shots. She turned toward her son and realized that it was Becknell who was shot in the back and the leg. The unknown man left in the car that he arrived in. Becknell's mother testified that the unknown man was about 5 feet, 6 or 7 inches tall, and she estimated his weight at around 150 pounds. Although she was unable to recognize the shooter from a photographic lineup, at the trial she identified Reed as the shooter. She stated she realized it was Reed when she saw both Reed and Price at the preliminary hearing.
On the day of the shooting, Iscela Luna was sitting in the back seat of a car parked in front of the house next to Becknell's house. Luna observed a blue car pull up in front of the house next door. She saw the driver exit the car with a gun in his hand, take about five steps toward the house, and start shooting at Becknell. Luna testified that the shooter was about 5 feet, 6 inches tall and skinny. Luna saw the shooter run back to the car and drive away.
Becknell testified at his preliminary hearing that at around noon he was sitting on the front porch when a man approached him from the driver's side of a blue car that had pulled up to his house. The man walked up to him and asked him if he knew “where the weed was.” Becknell indicated that he did not know where the weed was. The man then asked whether his name was “Amos.” Becknell denied that Amos was his name and said his name was P.J. The man again asked whether Becknell was sure his name was not Amos, to which Becknell said he was sure. The man then shot Becknell. At the preliminary hearing, Becknell identified Reed as the shooter. He testified that he did not know Reed before the shooting, but he and Price knew each other and it was not Price who shot him.
Leaundra Jefferson testified that when Price and Reed returned with Lee's car, Reed informed Jefferson that he went up to the man, asked where the weed was, then asked what the man's name was, and then shot the man three times. Latricia Barnett also overheard Price and Reed, when they returned, say that Reed had shot someone. Barnett also testified that later that day Price informed her that Reed shot someone for beating up on Price's cousin.
According to Price, Reed got out of the driver's seat of the car at Becknell's house. Price did not see where he went or what happened, but he heard a loud clap, like fireworks. Reed returned to the car and drove off. On the way back to return Lee's car, Reed told Price that “you ain't got nothin to worry about, you cool.”
Finally, Reed testified that while he was driving, Price crawled into the back seat. When they arrived at the house, Price exited the driver's side rear passenger door of the car. He testified that it was Price who walked up and shot Becknell. When Reed looked up after the shots were fired, he saw that Price had a gun. When Reed and Price were driving away, Price told Reed that Becknell had a gun and Price had to shoot Becknell before Becknell shot him.
Reed filed a motion in limine, asking the district court to exclude all evidence pertaining to Reed's previous gang-related activities and to any prior bad acts in general. Reed's motion in limine was granted by the district court.
After a trial, the jury found Reed guilty of attempted first-degree murder. Four days later Reed filed a motion for new trial and judgment of acquittal, alleging that the evidence was insufficient to support the conviction. He also filed a motion for a downward durational departure, citing his young age and immaturity as factors to be considered by the district court. In addition, Reed pointed out that due to an earlier parole eligibility date for murder, the punishment for a completed murder was less harsh than that of an uncompleted murder, again justifying a departure sentence.
Over a month later, with a new attorney, Reed filed an additional motion for new trial and a motion for a judgment of acquittal. In his motions, Reed argued the credibility of the witnesses was a major issue; the jury should hear evidence regarding a protection order filed against Barnett—one of the State's witnesses; Becknell was not an unavailable witness and should have been forced to testify; the State used false unsworn statements to contradict sworn testimony at trial; and the evidence was insufficient to support Reed's convictions.
Over 3 months after the trial, with yet a different attorney, Reed filed a supplemental motion for new trial which included several new allegations of trial error, including claims of ineffective assistance of counsel. Although the district court found this motion to be untimely, it treated it as a motion for postconviction relief similar to a motion filed under K.S.A. 60–1507 and held an evidentiary hearing on the motion. On September 16, 2011, the district court denied Reed's supplemental motion for new trial.
On September 22, 2011, Reed filed a motion to bar the imposition of the guidelines sentence as cruel and unusual punishment. Reed argued the guidelines sentence for his crime was cruel and unusual because his criminal history score was A, which placed his sentence within 592 to 653 months of imprisonment and if he had completed the murder he would have received a life term but would have been eligible for parole after 25 years.
On the same day, Reed filed another downward durational departure motion. In the motion, Reed asserted that the crimes which raised his criminal history score to A significantly overrepresented Reed's previous criminal history and were all committed in one case when he was a juvenile. In addition, Reed argued that the difference between his possible sentence and his codefendant's sentence was an additional compelling reason to depart from the guidelines. Finally, Reed contended that the disparity between the sentences for attempted first-degree murder and first-degree murder was another compelling reason to depart from the guidelines sentence.
On September 26, 2011, at the sentencing hearing, the district court denied Reed's first two motions for a new trial. The district court denied Reed's motion to bar the guidelines sentence as cruel and unusual and denied his motion for a judgment of acquittal, but it granted his downward durational departure motion. The district court sentenced Reed to 272 months of imprisonment.
Reed filed a timely notice of appeal. The State also filed a timely notice of cross-appeal, appealing the district court's decision to grant the downward durational departure sentence.
Analysis
This court has jurisdiction to consider Reed's ineffective assistance of counsel claims.
The right to appeal is entirely statutory and, subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. See State v. Ellmaker, 289 Kan. 1132, 1148, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010). Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. 289 Kan. at 1147. If the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
The State argues that the district court lacked jurisdiction to hear and rule upon Reed's ineffective assistance of counsel claims in his supplemental motion for new trial because the motion was untimely filed under K.S.A.2010 Supp. 22–3501(1). Reed was required to file a motion for new trial within 14 days of his conviction. This time frame may be extended if a request is made within that 14 days. See K.S.A.2010 Supp. 22–3501(1). Reed made no requests that his time be extended. Instead, Reed filed separate motions for new trial on March 21, 2011, April 25, 2011, and July 1, 2011, each while represented by different attorneys. Obviously, as Reed's conviction occurred on March 17, 2011, his first motion for new trial was filed within the time limitation. However, the remaining motions for new trial were untimely.
The last motion for new trial is the motion that the State is most concerned with. It raised for the first time allegations of ineffective assistance of trial counsel. Although the district court found it to be untimely, because it raised allegations of ineffective assistance of counsel the court treated it as a postconviction motion such as those filed under K.S.A. 60–1507 and conducted a full evidentiary hearing.
The State contends that the district court was jurisdictionally barred from hearing issues of ineffective assistance of counsel in an untimely motion for new trial. To hear these untimely claims circumvents the time limitations under K.S.A.2010 Supp. 22–3501. The State relies on State v. Myrick & Nelms, 228 Kan. 406, 422–23, 616 P.2d 1006 (1980), and State v. Lee, 45 Kan.App.2d 1001, 1021–22, 257 P.3d 799 (2011), rev. denied 293 Kan. –––– (January 20, 2012), which both seem to hold that this court lacks jurisdiction to hear allegations of ineffective assistance of counsel raised in untimely motions. Any untimely constitutional issues must be raised in a separate proceeding pursuant to K.S.A. 60–1507. Myrick & Nelms, 228 Kan. at 422–23.
However, Reed relies on State v. Kirby, 272 Kan. 1170, 1192–94, 39 P.3d 1 (2002), and State v. Kingsley, 252 Kan. 761, 765–67, 851 P.2d 370 (1993), to assert that the district court's decision to treat the supplemental motion for new trial as a postconviction motion similar to those filed under K.S.A. 60–1507 and its decision to conduct a full review of the evidence related to his claims allows this court to review the effectiveness of his trial counsel.
We agree with Reed and do not find the cases relied upon by the State inapposite to this finding. Although, like this case, Myrick involved an untimely motion for new trial alleging ineffective assistance of counsel, unlike this case, the original motion for a new trial had already been overruled and the new one was not filed until nearly a year later—after the case was already on appeal. Accordingly, there had been no hearing on, or any consideration of, Myrick's claims by the district court. The Supreme Court refused to consider the motion and noted that the constitutional claims (which would include ineffective assistance of counsel) could still be raised in a separate proceeding pursuant to K.S.A. 60–1507. 228 Kan. at 423. Likewise, in Lee, there was an untimely pro se motion for new trial. But when given an opportunity to argue the motion before the district court, Lee declined and the court neither accepted evidence nor ruled on the motion. So again, there had been no presentation of evidence on the claims for the appellate court to review, and we declined to do so. See 45 Kan.App.2d at 1020–22.
On the other hand, in Kingsley, the district court held a hearing on Kingsley's untimely pro se motion for new trial due to ineffective assistance of counsel, and Kingsley “made a fairly lengthy presentation to the court and even rebutted the State's argument.” 252 Kan. at 765. The district court ruled on the substance of his motion, denying it with no mention of its timeliness. On appeal, Kingsley did not argue that his trial counsel was ineffective, but that the district court erred in not appointing an attorney to represent him on the untimely motion. Our Supreme Court agreed with the State that Kingsley's claims were more properly viewed as a postconviction motion and that before counsel need be appointed the district court must scrutinize the motion for signs of a realistic basis in fact. 252 Kan. at 765–66. The court agreed with the district court that based upon its review of the record the motion did not contain any realistic basis; therefore, the district court did not err in failing to appoint counsel. It also noted that the motion was untimely. 252 Kan. at 767.
Likewise in Kirby, the Supreme Court, relying on Kingsley, held that when faced with a motion alleging ineffective assistance of counsel, the district court must make a preliminary examination to determine if there are substantial questions of law or fact raised. If there are none, the court may summarily deny the motion or it may grant an evidentiary hearing. Kirby, 272 Kan. 1193. Kirby's untimely motion was summarily denied, and our Supreme Court reviewed the district court's stated reasons for denial under an abuse of discretion standard. Upon reviewing the record, it found that the district court did not abuse its discretion because reasonable minds could agree with the district court that the motion had no reasonable basis. 272 Kan. at 1194–96.
The Supreme Court's findings in Kingsley and Kirby are also consistent with its ruling in State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000):
“As a general rule, we would not consider a defendant's assertion of ineffective assistance of counsel before the trial court has had an opportunity to assess the performance of counsel. [Citation omitted.] However, such assessment by the trial court is not necessary where the record on appeal is sufficiently complete for this court to decide the issue in a direct appeal. Here, the acts of counsel that Carter relies on are not disputed and are clearly reflected in the record. It would serve no purpose to remand to resolve the issue. The record on appeal is sufficient for this court to consider Carter's constitutional claims, including ineffective assistance of counsel.”
See also State v. Levy, 292 Kan. 379, 388–89, 253 P.3d 341 (2011) (where the record is not sufficient to review an ineffective assistance of counsel claim and appellate counsel has failed to conduct an adequate independent investigation of the claims, the matter will not be determined for the first time in a direct appeal); State v. Paredes, 34 Kan.App.2d 346, 348–49, 118 P.3d 708,rev. denied 280 Kan. 989 (2005) (record was sufficient to review claims of ineffective assistance of counsel even though raised for the first time on appeal).
Here, the district court held a hearing on Reed's allegations of ineffective assistance of counsel and gave both parties the opportunity to call witnesses and present evidence. Even if Reed's motion for new trial was untimely and we treat the ineffective assistance of counsel claim as being raised for the first time on appeal, it would serve no purpose to remand the case to resolve this issue. Accordingly, we find it appropriate to examine the evidence presented and review Reed's ineffective assistance of counsel claims even though they were not timely raised below.
Our standard of review for ineffective assistance of counsel claims is well settled.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). Consequently, the appellate court “reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo.” Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
To establish ineffective assistance of counsel, it is not enough to merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently. Rather, before counsel's assistance can be found to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, Second, the defendant must establish that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of the totality of the evidence before the judge or jury. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Harris, 288 Kan. at 416.
If counsel has made a strategic decision after making a thorough investigation of the law and the facts relevant to the realistically available options, then counsel's decision is virtually unchallengeable. Strategic decisions made after a less than comprehensive investigation are reasonable exactly to the extent a reasonable professional judgment supports the limitations on the investigation. Rowland v. State, 289 Kan. 1076, 1083–84, 219 P.3d 1212 (2009). With these standards in mind, we examine Reed's claims.
Counsel was not deficient for failing to object to the admission of BeckneU's preliminary hearing testimony.
A preliminary hearing was held in this case prior to trial. It became apparent that, based upon his protests, Becknell did not want to testify due to his fear of retribution. In fact, he attempted to refuse cross-examination. However, after a threat of contempt of court by the district court, Becknell agreed to continue with his cross-examination.
Becknell was again reluctant to testify at trial, apparently still due to his fear of retribution from undisclosed persons. In fact, he indicated that he was not going to testify. The district judge stated, “If I tell you that you're going to be subject to contempt, is that going to make a difference?” Becknell did not understand why he would be held in contempt, and the district judge stated:
“If I order you to testify and you refuse, you may subject yourself to contempt. That could be jail or some other sanction. I'm not going to suggest what it might be. But what I want to have you tell me is, even with that understanding, do you still refuse to testify?”
Becknell again indicated that he did not understand why he would be held in contempt if his safety was at risk, and the district judge stated, “You would be in contempt for failure to follow an order given by the Court.” The district judge further stated, “I would be ordering you to testify to what you know about this particular case. You then have a choice to either testify or refuse to testify.”
Becknell stated that he did not want to testify, and the district court stated, “Very well. Thank you.”
The district court gave both parties an opportunity to speak, but both parties accepted Becknell's refusal to testify, and the district court determined that Becknell was unavailable as a witness. The district court then asked Reed's trial counsel whether he had any objection to the use of Becknell's preliminary hearing testimony. Reed's trial counsel indicated that he was not prepared to make an argument against it, but he left the opportunity to argue against it open until the testimony was available. However, when the preliminary hearing testimony was admitted, Reed's trial counsel did not object.
Reed contends that the district court erred when it determined that Becknell was an unavailable witness at the jury trial. His argument focuses on the fact that the district court did not order Becknell to testify under a threat of contempt. Becknell merely said that he refused to testify, and the district court allowed him to leave the courtroom.
Because his attorney failed to make a contemporaneous objection, Reed concedes that this issue was not properly preserved for appeal, but he asserts that his counsel was ineffective for two reasons. First, he failed to demand that the district court order Becknell to testify under threat of contempt before determining that Becknell was unavailable. Second, he argues that trial counsel was ineffective for waiving Reed's right to confrontation and by agreeing to the admission of the preliminary hearing testimony without consulting him. We will examine his claims in that order.
There is no dispute that Becknell's preliminary hearing testimony was hearsay. Because it is hearsay, it is generally inadmissible. But there are several exceptions to the hearsay rule. One exception is when the witness is unavailable to testify at trial. K .S.A.2010 Supp. 60–460(c). “A trial court is given considerable discretion in admitting statements under the hearsay exception for unavailable witnesses. State v. Stafford, 255 Kan. 807, 810, 878 P.2d 820 (1994). When unavailability is an issue, whether the witness is available is a question of law. State v. Sanders, 258 Kan. 409, 418, 904 P.2d 951 (1995).” State v. Campbell, 29 Kan.App.2d 50, 65, 23 P.3d 176 (2001). The determination by the district court that a witness is unavailable to testify will not be disturbed on appeal unless an abuse of discretion is shown. State v. Cook, 259 Kan. 370, 375, 913 P.2d 97 (1996). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
In State v. Jefferson, 287 Kan. 28, 34–39, 194 P.3d 557 (2008), our Supreme Court found that a witness who refuses to testify may be deemed unavailable for the purposes of the hearsay exception. See also State v. Terry, 202 Kan. 599, 603, 451 P.2d 211 (1969) (Witnesses who refuse to testify are “just as ‘unavailable’ as though [their] physical presence could not have been procured—for, as a practical matter—[their] testimony was unavailable—thus bringing the matter clearly within the exception to the constitutional confrontation rule.”).
Reed insists that Jefferson requires the district court to order a refusing witness to testify under threat of contempt as a prerequisite to a finding of unavailability. Because the district court, in Reed's case, did not specifically order Becknell to testify under threat of contempt, then the determination that Becknell was an unavailable witness was inappropriate and his attorney was ineffective for not objecting.
However, Reed reads Jefferson too broadly. The only portion of the Jefferson opinion in which the court discussed the requirement that the district court specifically order the witness to testify under threat of contempt was during the court's reference to the federal rules of evidence. See Fed.R.Evid. 804(a)(2). But this discussion came after the court had already determined that the district court had not erred in determining the witness unavailable because of his refusal to testify. It appears that the court was merely suggesting that its decision would be supported by the federal rules of evidence. Jefferson, 287 Kan. at 38. There does not appear to be any particular requirement under Jefferson that a district court must specifically order a witness to testify under threat of contempt before the witness can be deemed unavailable. The court's decision involves a case-by-case determination.
In this case, before determining Becknell was unavailable, the district court discussed Becknell's duty to testify and advised him that the court could find him in contempt if he refused. In spite of this warning, Becknell continued to refuse to testify. Merely because the district court did not specifically order Becknell to testify and find him in contempt for refusing to do so does not make Becknell's testimony any less unavailable. The district court was in the best position to observe Becknell's demeanor and judge whether his refusal was sincere and intractable. Substantial competent evidence supports the district court's conclusion. It was not arbitrary, fanciful, or unreasonable, nor does it appear to be based on any error of law or fact. Accordingly, the district court did not abuse its discretion in finding Becknell unavailable to testify.
But Reed argues that by failing to challenge the court's determination, trial counsel was ineffective. Given that the district court's decision was supported by both the facts and the law, we cannot say that a failure to object falls outside the broad range of reasonable professional assistance.
Moreover, trial counsel testified that the decision not to challenge Becknell's unavailability was a strategic one. Although experienced attorneys might disagree on the best trial tactics, deliberate decisions made for strategic reasons, after full investigation, may not establish ineffective counsel. State v. Kendig, 233 Kan. 890, 896, 666 P.2d 684 (1983) (citing Cook v. State, 403 N.E.2d 860, 868 [Ind.App.1980] ).
Trial counsel testified that he had the opportunity to observe Becknell during the preliminary hearing. He testified that Becknell was trembling violently during his testimony. He was visibly scared and still walking with a cane from his injuries. Yet he continued to be consistent, unequivocal, and highly credible in his identification of Reed as the shooter. He also had an opportunity to view excerpts from Becknell's preliminary testimony again on the 10 p.m. news. It was clear Becknell's testimony regarding the fact that Reed was the shooter was either going to come in through direct testimony at trial or through the reading of the preliminary hearing transcript at trial. Trial counsel believed a cold reading of the transcript would be better than a live, fearful, zealous, and credible witness, which trial counsel believed Becknell would be. Any discrepancies regarding Becknell's preliminary hearing testimony could be highlighted through other witnesses. He discussed Becknell's reluctance to testify with Reed. Trial counsel testified that he felt he was
“having [his] cake and eating it too because [Becknell] wasn't in front of the jury. He wasn't testifying. And, yet, I [counsel] was able to—and had the ability by using his transcript to frankly bring into doubt any and all of the credibility of not only him, but [Becknell's mother] and Michael Price.”
We find trial counsel's strategy to be sound. Reed presents no evidence to suggest his counsel's decision was objectively unreasonable.
Finally, Reed contends that his trial counsel was ineffective by waiving his constitutional right under the Sixth Amendment to confront the witnesses against him. He argues that because his attorney's cross-examination of Becknell at the preliminary hearing was minimal, it was insufficient to protect his confrontation rights because the incentive to cross-examine at the preliminary hearing differed from that at trial.
But Reed's trial counsel did not waive Reed's constitutional right to confrontation. “ “ ‘The Sixth Amendment right of confrontation is satisfied if the accused confronted the witnesses against him at any stage of the proceedings in the same case and has had an opportunity of cross-examination.’ “ “ State v. Stano, 284 Kan. 126, 141, 159 P.3d 931 (2007). “The confrontation clause does not require an inquiry into the ‘effectiveness' of defense counsel's cross-examination of the witness at the preliminary hearing. [Citation omitted].” State v. Fondren, 11 Kan.App.2d 309, 314, 721 P.2d 284,rev. denied 240 Kan. 805 (1986). Accordingly, whether Reed's trial counsel exercised his full opportunity to cross-examine Becknell is not a factor in deciding whether preliminary hearing testimony should be admitted. In addition, Reed claims that his rights were further violated by the fact that part of the preliminary hearing transcript included questioning of Becknell by counsel for his codefendant. But K.S.A.2010 Supp. 60–460(c) allows for the admission of a witness' preliminary hearing testimony when he or she has been declared unavailable. The admissibility of the testimony is not limited by the person asking the questions.
Reed was present and represented at the preliminary hearing by counsel who had a full opportunity to cross-examine Becknell. Because his Sixth Amendment right to confrontation was not violated or waived, his associated claim of ineffective assistance of counsel fails.
The district court did not deny Reed's Sixth Amendment right to a public trial when it temporarily closed the courtroom during the court's questioning of Becknell regarding whether he would testify at trial.
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” See Kan. Const. Bill of Rights § 10. The determination of whether a defendant's Sixth Amendment right to a public trial was violated is a question of law over which an appellate court has unlimited review. State v. Dixon, 279 Kan. 563, 596, 112 P.3d 883 (2005), disapproved on other grounds by State v. Wright, 290 Kan. 194, 204–06, 224 P.3d 1159 (2010). In addition, a violation of the right to a public trial is considered a structural error and, in some cases, may require reversal regardless of the result of any harmless error review. See Waller v. Georgia, 467 U.S. 39, 49–50, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (constitutional violation required reversal when court, over defendant's objection, closed the courtroom to the public for 7 days during an entire pretrial hearing on a motion to suppress); City of Wichita v. Bannon, 37 Kan.App.2d 522, 528, 154 P.3d 1170 (2007) (structural errors requiring automatic reversal exist in very limited cases, denial of the right to a jury trial is one).
Reed asserts that his right to a public trial was denied when the courtroom was temporarily closed in order to question Becknell about his willingness to testify. He contends that this error mandates reversal.
The facts are not in dispute. It is clear from the record that the temporary courtroom closure was based upon recognition by the court and the parties that Becknell feared for his own safety if he testified in front of others about the shooting. Reed's trial counsel did not object to this procedure. In fact, he actually suggested that the courtroom be cleared and that the examination should take place in the empty courtroom, rather than in the library where Becknell was located. His stated reason was because of his knowledge of the possible intimidation of witnesses that had been going on under the surface during the course of the trial. The hearing was relatively short, Becknell was sworn, but counsel did not question Becknell, and the courtroom was reopened after the finding of unavailability was made.
During the trial, Becknell's preliminary hearing testimony was read to the jury in open court.
Although we generally require a K.S.A. 60–404 contemporaneous objection at trial to preserve an issue for appellate review, because the right to a public trial is a fundamental constitutional right, trial counsel's failure to contemporaneously object does not bar this issue from being heard on appeal. State v. Barnes, 45 Kan.App.2d 608, 611–13, 251 P.3d 96 (2011). However, counsel did not just fail to object, he suggested the closure. A defendant may not invite error and then complain of error on appeal. State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). So we will first discuss whether Reed's trial counsel waived his right to a public trial.
Reed waived his right to a public trial
Reed argues that trial counsel was required to consult with him prior to waiving the right to a public trial and because he did not there can be no finding of waiver. Although Reed looks to Bannon, 37 Kan.App.2d at 526, to support his argument, Bannon dealt with the waiver of a right to a jury trial and not the waiver of the right to a public trial. Bannon is certainly consistent with the long-standing principle that irrespective of counsel's position, in a criminal case the defendant has the right to personally make three key decisions: (1) what plea to enter; (2) whether to waive jury trial; and (3) whether to testify. Flynn v. State, 281 Kan. 1154, 1163, 136 P.3d 909 (2006). There are no Kansas cases directly on point dealing with the ability of counsel to waive the right to a public trial on the client's behalf. So we must look elsewhere for guidance.
In State v. Overline, ––– Idaho ––––, ––– P.3d ––––, No. 38,929, 2012 WL 5991570 (Idaho App. filed December 3, 2012), the Idaho Court of Appeals held that the fundamental right to a public trial was different than the fundamental right to a jury trial in that it could be waived by defense counsel.
“ ‘[T]he absence of the public in a particular case does not necessarily affect qualitatively the guilt-determining process or the defendant's ability to participate in the process.... Of course, it is possible that in a particular case the wrongful closure of a trial could have an adverse impact and that counsel would have failed to preserve an objection. However, the mere possibility of such an instance does not seem to warrant the imposition of a requirement of a personal waiver of the right to a public trial in all cases. Such possibilities are better dealt with via an ineffective assistance of counsel claim .... (citations omitted).
“A number of other courts have likewise held that the Sixth Amendment right to a public trial is subject to waiver by defense counsel or to forfeiture by failure to object.' See Johnson v. Sherry, 586 F.3d 439, 444 (6th Cir.2009); United States v. Hitt, 473 F.3d 146, 155 (5th Cir.2006); United States v. Sorrentino, 175 F.2d 721, 723 (3rd Cir.1949); People v. Vaughn, 491 Mich. 642, 821 N.W.2d 288, 300 (Mich.2012).” 2012 WL 5991570, at *4.
We view Overline and the cases cited therein as persuasive and find that defense counsel may waive the right to a public trial on the defendant's behalf with regard to the temporary closure of the courtroom, and Reed's counsel did so here. Accordingly, Reed's claim fails.
But even if we were to find that counsel cannot waive the right to a public trial on the defendant's behalf, the question remains whether the district court's action in temporarily closing the courtroom to discuss Becknell's refusal to testify violated Reed's Sixth Amendment right to a public trial. We find it did not for several reasons.
The hearing was not part of the criminal prosecution which would have implicated the Sixth Amendment.
First, the concerns expressed by Waller underlying a public trial are not present in this case. This was not part of the criminal prosecution; it was an ancillary proceeding more akin to a contempt action or chambers or bench conference. The complained-of hearing was comprised solely of questioning by the court regarding a legal issue—the availability of a witness—with no examination of the witness by the parties. See Campbell, 29 Kan.App.2d at 65 (whether the witness is available is a question of law).
In Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960), the United States Supreme Court held that procedural safeguards for criminal contempt proceedings do not derive from the Sixth Amendment and are therefore not within “ ‘all criminal prosecutions” ’ to which that Amendment applies. Likewise, in United States v. Norris, 780 F.2d 1207, 1210 (5th Cir.1986), the defendant asserted that several chambers conferences involving problems raised by various jurors, evidentiary questions, proposed jury charges, and the court's ex parte interview of the defendant regarding witnesses he wished to subpoena for his defense violated his Sixth Amendment right to a public trial. The Fifth Circuit Court of Appeals held:
“Non-public exchanges between counsel and the court on such technical legal issues and routine administrative problems do not hinder the objectives which the Court in Walter observed were fostered by public trials. Unlike the trial of a suppression motion, such exchanges ordinarily relate to the application of legal principles to admitted or assumed facts so that no fact finding function is implicated. A routine evidentiary ruling is rarely determinative of the accused's guilt or innocence. Also, such evidentiary rulings ordinarily pose no threat of judicial, prosecutorial or public abuse that a public trial is designed to protect against.” Norris, 780 F.2d at 1210–11.
See also State v. Rhyne, No. 106,313, 2012 WL 5205570, at *8 (Kan.App.2012) (unpublished opinion) (in chambers discussion of a jury question between court and counsel did not violate right to public trial) (citing with approval Norris and State v. Pullen, 266 A.2d 222, 227–28 [Me.1970] [right to public trial not violated where motion for judgment of acquittal was heard in chambers, with defendant absent, when issue involved was solely a question of law], overruled on other grounds by State v. Brewer, 505 A.2d 774, 777–78 [Me.1985] ).
Because this hearing was simply an ancillary matter involving only a question of law, the Sixth Amendment right to a public trial was not implicated.
A concern for the witness' safety is a sufficient justification to temporarily close the courtroom.
But even if this were considered to be trial testimony that was part of the criminal prosecution implicating Reed's Sixth Amendment right to a public trial, the United States Supreme Court has recognized that “the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information.” Waller, 467 U.S. at 45. The district court cited two federal cases which were factually similar to this case, although they both involved partial rather than complete closures, in which the defendant's right to a public trial appropriately yielded to an interest in protecting the safety of a witness. See United States v. Farmer, 32 F.3d 369 (8th Cir.1994); Nieto v. Sullivan, 879 F.2d 743 (10th Cir.1989). In this case, although there were no specific findings by the court, primarily due to a lack of any objection by the parties, the record is clear regarding the reason for the temporary closure—Becknell's fear for his personal safety. See Farmer, 32 F.3d at 371 (“[S]pecific findings by the district court are not necessary if we can glean sufficient support for a partial temporary closure from the record.”). We find that any right Reed had to a public trial in this case yielded to the interest of protecting the safety of Becknell and the temporary closure of the courtroom was sufficiently limited to effectuate that purpose.
In this case, denial of the right to a public trial is subject to a harmless error analysis and any error here was harmless.
Finally, even if this hearing was considered part of the criminal prosecution, and even if there was insufficient justification to close the courtroom, we are nevertheless presented with a situation that would be subject to a harmless error analysis and any error here was clearly harmless.
In Dixon, our Supreme Court recognized that even though the violations of certain fundamental rights are considered structural errors and generally not subject to a harmless error analysis, not every violation of the fundamental right to a public trail is free from a harmless error analysis. Quoting United States v. Canady, 126 F.3d 352, 363–64 (2d Cir.1997), cert. denied522 U.S 1134 (1998), the Dixon court held:
“ ‘While the Court in [Arizona v.] Fulminante [, 499 U.S. 279, 309–10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ] listed the deprivation of the right to a public trial as a “structural error,” we have recognized that not every violation of that right is free from harmless error review. See, e.g., Rushen [ v. Spain ], 464 U.S. [114,] 118–19, [78 L.Ed.2d 267, 104 S.Ct. 453 (1983) ] (Finding ex parte communication between judge and juror to be harmless); Yarborough v. Keane, 101 F.3d 894, 898 (2d Cir.1996) (holding that defendant's exclusion from hearing to question witness was harmless because hearing was “extremely brief,” “not even a part of the trial proper,” and “of little significance”), cert. denied,520 U.S. 1217, 117 S.Ct. 1706, 137 L.Ed.2d 831 (1997); cf. Peterson v. Williams, 85 F.3d 39, 44 (2d Cir.) (“trivial” and “inadvertent” closure of trial during defendant's testimony did not violate public trial guarantee), cert. denied,519 U.S. 878, 117 S.Ct. 202, 136 L.Ed.2d 138 (1996).” ‘ 279 Kan. 599–600.
As the Second Circuit Court of Appeals noted in Canady, and as our Supreme Court cited with approval in Dixon, there is a quantifiable difference between the rendering of a court's decision following a criminal trial (which is what occurred in both Canady and Dixon ) and minor violations of the public trial guarantee like ex parte communications between judge and juror and questioning a witness who entered the court in violation of a witness sequestration order. Dixon, 279 Kan. 599–600. Here we have a minor violation, the judge questioning a witness concerning the witness' willingness to testify, so the harmless error analysis applies.
Before a constitutional error can be declared harmless, the court must be able to declare it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In other words, the error is harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
We are comfortable making such a finding here. In fact we fail to see any harm or prejudice to Reed as a result of this short, ancillary hearing being closed to the public. No witnesses were sworn or questioned about the facts of the case during the hearing. The State did not conduct a direct examination. In addition, Reed's trial counsel did not cross-examine Becknell, and there was no reason to conduct a cross-examination. None of the testimony provided by Becknell was pertinent to the trial itself and provided no useful evidence for the State or for Reed. All that occurred was the district court's attempt to ascertain whether Becknell intended to refuse to testify, Becknell's testimony from the preliminary hearing regarding the facts of the case was later read in open court. All testimony was presented in open court. Accordingly, even if his right to a public trial was violated, the violation was harmless and Reed's claim fails.
Trial counsel was not ineffective for failing to object and waiving Reed's right to a public trial.
Of course, Reed also argues that his trial counsel was ineffective for failing to object to the closure of the courtroom and for waiving Reed's right to a public trial. We find this claim also lacks merit. As already noted, before counsel's assistance can be found to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Even if Reed could establish that his trial counsel's performance was deficient based upon his testimony that he did not even realize this may be a violation of Reed's constitutional right to a public trial, we have already found that the decision did not result in any prejudice so he is not able to establish the second prong of the ineffectiveness test.
The prosecutor did not commit prosecutorial misconduct by referring to the provision in the plea agreement with Price that he must testify truthfully.
Reed contends that the State committed prosecutorial misconduct during Price's direct examination when the prosecutor mentioned several times Price's requirement to testify truthfully pursuant to his plea agreement. But Reed's counsel failed to object to the testimony at trial. A K.S.A. 60–404 contemporaneous objection must be made to all evidentiary claims—including questions posed by a prosecutor and responses to those questions—to preserve the issue for appellate review. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009); see State v. Shadden, 290 Kan. 803, 839–41, 235 P.3d 436 (2010). Therefore, because Reed's trial counsel failed to make a contemporaneous objection at the time the answers were elicited, this court cannot review this issue on direct appeal.
Reed next asserts that his trial counsel was ineffective for failing to object at the time the State mentioned the plea agreement and Price's requirement to testify truthfully. So we will examine the allegation in the context of his ineffective assistance of counsel claim.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
The following colloquy occurred between the State and Price:
“Q. You have not pled guilty yet?
“A. No, I have not.
“Q. But is it your understanding that the State has left that plea agreement open and available to you?
“A. Yes.
“Q. And what is your understanding as far as your responsibility goes in regards to that plea agreement?
“A. Well, from what I found out today, if I don't testify, the plea get[s] pulled, I do 25.
“Q. Well, Mr. Price, I'm asking you what the plea agreement says and I'm asking you to look at paragraph D.
“A. It says the State recommends to give me—to recommend
“Q. I'm talking about your part of the responsibility.
“A. Well, got to testify.
“Q. And how—do you have to testify truthfully?
“A. Yes, it says testify truthfully as I'm sworn in.
“Q. And is that why you're testifying today to testify truthfully, Mr. Price?
“A. Yes.”
The State is not allowed to comment on the credibility of its witnesses. See State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 (2012). But a prosecutor's questions regarding the terms of a plea agreement are relevant to the jury in assessing the credibility of the witness' testimony. Accordingly, this court has found nothing improper in the prosecutor's limited questioning of the witness in order “to establish the terms of that agreement and [the witness'] understanding of them. State v. Edwards, 39 Kan.App.2d 300, 310–11, 179 P.3d 472,rev. denied 286 Kan. 1181 (2008). In addition, more jurisdictions than not have decided that the State does not improperly vouch or bolster the credibility of a State's witness during direct examination when a prosecutor questions a witness about the truthfulness requirement contained in a plea agreement. See Annot., 58 A.L.R.4th 1229.
Based on the questions asked by the prosecutor and Price's answers, we find that the prosecutor was not commenting on Price's credibility but was merely attempting to establish the terms of Price's plea agreement and Price's understanding of his plea agreement. Therefore, the prosecutor's questions were not improper and did not go outside the wide latitude afforded to prosecutors. As such, Reed's allegation that his trial counsel was ineffective for failing to object at the time the prosecutor asked the questions is without merit.
The State did not violate the order in limine with regards to inadmissible gang evidence and Reed's prior bad acts.
Reed asserts that the State violated the order in limine which prevented the State from presenting any gang-related evidence or any evidence regarding Reed's prior bad acts. As such, Reed argues that the State's violations are reversible error. Reed concedes that this issue was not properly preserved for appeal by a contemporaneous objection; however, he argues that the issue should be reviewed as an ineffective assistance of counsel claim. See State v. Houston, 289 Kan. 252, Syl. ¶ 10, 213 P.3d 728 (2009) (contemporaneous objection required when evidence is admitted following the denial of motion in limine).
When a party alleges that an order in limine has been violated, the trial court must determine (1) whether the order has been violated, and if so, (2) whether the party alleging the violation has established substantial prejudice resulting from that violation. State v. Crum, 286 Kan. 145, 160, 184 P.3d 222 (2008).
Where a prosecutor has allegedly violated a order in limine, the reviewing court must consider the prosecutorial misconduct factors in determining whether the defendant was prejudiced by the violation. See Shadden, 290 Kan. at 835–36. With this standard in mind, we review Reed's claimed violations.
Reed's first two alleged violations are similar. He contends that the State violated the order in limine when the prosecutor asked Detective Patrick Phipps what he did for a living. Detective Phipps answered, “I'm a Wichita police officer, detective, assigned to the gang unit.” In addition, the State asked Detective Phipps what his responsibilities were before becoming a detective while he was a SCAT officer. Detective Phipps replied, “I dealt with more of the gangs, violent crimes, drugs, that type of stuff is what that is geared toward.” Similarly, the State asked Officer Brandon Lenzi about the assignments he receives as a SCAT officer. Officer Lenzi answered, “As a SCAT officer we're assigned to work drug and gang complaints in our respective area of town.”
We find that because Detective Phipps' and Officer Lenzi's comments were merely testimony regarding their work assignments and their testimony did not link Reed or his alleged crime to a gang, the references did not violate the order in limine. See State v. Ransom, 288 Kan. 697, 715, 207 P.3d 208 (2009) (brief reference to “gang officers” not prejudicial); State v. Bowen, 254 Kan. 618, 624, 867 P.2d 1024 (1994) (order in limine not violated when witness did not link the defendant or his alleged crime to a gang); State v. Pham, 27 Kan.App.2d 996, 1001–02, 10 P.3d 780 (2000) (no abuse of discretion allowing testimony if officer refers only to his work assignment in the gang unit).
Reed's third allegation concerning a violation of the order in limine revolves around the testimony of Detective Wendy Hummell. The State asked Detective Hummell to explain why Detective Phipps was called in to take the lead on the investigation and she replied, “What happens on cases like this is he works in the gang unit, and this type of a case would go to a detective that's assigned to that unit and so it was going to be Detective Phipps' case.”
A little later, the State asked Detective Hummell what she did with the information she obtained after her interview with Courtney Lee. Detective Hummell answered, “There were other people that were—other officers and gang officers specifically that were assisting in doing some research, you know, as far as Sammy Reed....”
Although one could interpret Detective Hummell's testimony as directly linking the investigation to gang involvement, which was disallowed by the order in limine, the jury could have just as easily concluded from her comments that officers were looking for gang connections “as far as Sammy Reed” but found none because there was no further evidence presented that Reed was involved in a gang or that this crime was gang related. In addition, we find that the comments were brief, with no particular emphasis by the State at the time. Similar to facts in Ransom, it does not appear that the State's questions were phrased to elicit testimony regarding gang evidence. The comments were innocuous, and we are confident that the comments did not create an unduly prejudicial impression that Reed was involved in a gang or gang activity.
Next, Reed suggests that the State violated the order in limine during closing argument when the prosecutor stated:
“Because you've heard a lot about the snitching, about this kind of street code, the way the people talk about, you know, people snitching to police. So Samuel Reed can walk out of here, regardless of what happens, and say, hey, Michael, I had to tell them that you did it so that it wasn't on me. But don't worry, I gave you an out, I said it was self-defense. So we're cool, right? We're still cool, right, because I don't want people talking.”
The prosecutor's comment during closing argument gives no suggestion that Reed was either affiliated with or a member of a gang. It is difficult to see how this comment can be related to gang membership or activity. Therefore, the comment did not violate the order in limine.
Finally, Reed contends that the State violated the order in limine when Detective Hummell testified that during her interview with Lee, Lee stated that Reed told her “that she shouldn't be snitching. She said that he threatened to harm her, have somebody beat her up if she said anything to the police, and then later on she told me that he even threatened to have somebody maybe shoot her or kill her is what she interpreted it as.” Reed argues that this was inadmissible evidence pursuant to K.S.A. 60–455 because it constituted a prior bad act and was therefore in violation of the order in limine.
The threat to Lee was made during the ongoing investigation into Reed's case. According to State v. Thomas, 252 Kan. 564, 579, 847 P.2d 1219 (1993), “ ‘attempts by the accused to conceal or destroy evidence, or to fabricate or procure false evidence, are incriminating circumstances that may be presented to the jury.’ [Citation omitted.]” In Thomas, our Supreme Court determined that evidence pertaining to the defendant's threat to a witness so as to prevent the witness from testifying was relevant and admissible at trial. 252 Kan. at 579–80. Therefore, Reed's threat to Lee was relevant and admissible regardless of K.S.A. 60–455.
Thus, we find that the prosecutor did not violate the order in limine. As such, Reed has failed to show that his trial counsel was ineffective for failing to object to the comments.
The prosecutor's remarks during closing argument did not constitute prosecutorial misconduct.
Reed argues that the State committed prosecutorial misconduct during closing argument when the prosecutor presented an imaginary script between Reed and Price. In addition, Reed argues that his trial counsel was ineffective for failing to object at the time the statements were made. Although Reed's trial counsel did not object to the prosecutor's statements, no such objection is required in order to raise the issue on appeal. See State v. Huerta–Alvarez, 291 Kan. 247, 261, 243 P.3d 326 (2010).
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. Burnett, 293 Kan. at 850.
The following portion of the State's closing argument is what Reed takes issue with:
“So Samuel Reed can walk out of here, regardless of what happens, and say, hey, Michael, I had to tell them that you did it so that it wasn't on me. But don't worry, I gave you an out, I said it was self-defense. So we're cool, right? We're still cool, right, because I don't want people talking.”
A prosecutor's comments on what a witness was thinking are improper because they ask the jury to speculate on facts not in evidence. See State v. Kleypas, 272 Kan. 894, Syl. ¶ 83, 40 P .3d 139 (2001), cert. denied537 U.S. 834 (2002), overruled in part on other grounds State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev'd and remanded Kansas v. Marsh, 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.3d 429 (2006). But remarks made in closing must be viewed in context of the total argument and the issues in the case. State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994). When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on the evidence, that certain testimony is not believable. State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000).
In this case, the issue of “snitching” and its negative connotation in the community was discussed repeatedly. Reed testified that Price had a gun, but said he used it only in self-defense. The trial was the first time Reed had advanced this version of events. In closing, the prosecutor highlighted Reed's testimony by asserting:
“What about this element that he throws in there, Michael Price is the shooter, but Amos Becknell had the gun.
“Well, that's not supported by any of the evidence or any other witnesses testimony. And yet you have to ask yourself, why would he put that in there? Well, ladies and gentlemen, Samuel Reed is not going to put his case on Michael Price more than he needs to try to defend himself to try to get off for himself. Because you've heard a lot about the snitching, about this kind of street code, the way the people talk about you, you know, people snitching to police. So Samuel Reed can walk out of here, regardless of what happens, and say, hey, Michael, I had to tell them that you did it so that it wasn't on me. But, don't worry, I gave you an out, I said it was self-defense. So we're cool, right? We're still cool, right, because I don't want people talking. That's self-defense. It doesn't make any sense based on any of the other evidence. He's not going to put his case, the fact that he shot somebody, on Michael Price, because Michael Price didn't shoot Amos Becknell. So he tries to leave him with an out.
“But it doesn't make any sense. You have to ask yourself about these tiny little details and how they play in the credibility of the testimony that you've heard.”
We find that these comments, when viewed in context, were well within the broad latitude given prosecutors for commenting on the evidence. This was not an imaginary script of what the victim was thinking in an effort to arouse the passion of the jury, which was prohibited in Kleypas, 272 Kan. at 1114, and State v. Morris, 40 Kan.App.2d 769, 791–92, 196 P.3d 422 (2008). Instead, the prosecutor was simply making reasonable inferences from the evidence as to why Reed's testimony may not be credible, suggesting that he could implicate Price as the shooter, but give Price a defense and still save face in the community. The prosecutor was pointing out that Reed had a motive to implicate Price, but that version did not make sense and was not supported by the evidence.
Because we find that the prosecutor's statements during closing argument did not constitute misconduct, Reed's allegation of ineffective assistance of counsel for failure to object necessarily fails as well.
There was not sufficient cumulative error to deny Reed a fair trial.
Reed asserts that cumulative error denied him his right to a fair trial.
Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when “ “ ‘the totality of circumstances substantially prejudiced the defendant and denied the [defendant] a fair trial.” ’ “ Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). But cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. State v. Wells, 296 Kan. ––––, Syl. ¶ 22, 290 P.3d 590 (2012). Because we have found no errors, Reed's cumulative error argument fails.
We are unable to review Reed's claim of cruel and unusual punishment.
Reed asserts that the district court erred when it denied his motion to bar his sentencing guidelines sentence as cruel and unusual punishment under § 9 of the Kansas Constitution Bill of Rights. The district court denied the motion as moot because it granted Reed's motion for a downward durational departure.
Reed cites to the three factors established in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), which discusses how the district and appellate courts are to address motions presented by defendants asserting that their sentence constituted cruel and unusual punishment. But the district court did not make any particular findings of fact or conclusions of law on Reed's motion to bar his sentencing guidelines sentence as required by Freeman.
In State v. Seward, 289 Kan. 715, 718–20, 217 P.3d 443 (2009), the district court failed to make factual findings and conclusions of law pursuant to Freeman regarding defendant's argument that his sentence constituted cruel and unusual punishment. Our Supreme Court remanded the case, under exceptional circumstances, to the district court in order for the district court to make factual findings and conclusions of law. However, the court also stated:
“In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under Rule 165, if necessary.” 289 Kan. at 721.
Accordingly, because the district court failed to make the required findings of fact and conclusions of law, and because Reed failed to invoke Supreme Court Rule 165 (2011 Kan. Ct. R. Annot. 246) in order to obtain the required factual findings and conclusions of law needed for appellate review, this court is unable to review the issue for the first time on appeal. Therefore, whether the issue is moot or not, Reed's claim fails.
The district court did not err when it granted Reed's request for a downward durational departure.
A sentencing departure must be supported by substantial and compelling reasons justifying a deviation from the presumptive guidelines sentence. “Substantial” means something real, not imagined; something with substance, not ephemeral. “Compelling” means that the circumstances of the case force the sentencing court “to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.” State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008). We review the sentencing judge's conclusions for an abuse of discretion. State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
In its cross-appeal, the State contends that the district court's sole reason for granting Reed's downward durational departure was because of the disparity between the parole eligibility in the presumptive sentence for attempted first-degree murder and completed first-degree murder. The State asserts that this reason alone does not constitute a substantial and compelling reason to depart from the presumptive prison sentence. As a result, the State claims that the district court abused its discretion in imposing a durational departure sentence. But it appears that the district court took more into consideration than just Reed's sentencing disparity argument, although certainly that was the district court's principal consideration. A closer review of Reed's motion and the district court's findings is necessary.
At the hearing on Reed's motion for durational departure, Reed's counsel discussed several possible mitigating factors for the district court's consideration. They are the following:
1. Prior to trial, the State offered a plea agreement which only recommended 12 years of imprisonment. Reed suggested that this fact lessens the persuasiveness of the State's argument that the protection of the community requires the he should now be required to serve 50 years.
2. The presumptive sentence was cruel and unusual because of its disproportionate nature between parole eligibility between the sentence for attempted first-degree murder and completed first-degree murder for an individual with a criminal history score of A. For attempted first-degree murder, there is the chance that Reed would be sentenced to a solid 50 years in prison. Whereas if Reed had completed the crime, he would have been sentenced to life in prison, but with parole eligibility after 25 years.
3. The only reason Reed's criminal history score was A was because of two juvenile convictions for possession of a firearm and three other prior crimes—two for criminal threat and one for battery on a law enforcement officer—committed while Reed was 17 years of age. The two criminal threats were made via text message and the battery on a law enforcement officer occurred when Reed broke the window out of a patrol vehicle and a shard of glass hit the officer's face. The three crimes were deemed three person felonies. Reed's counsel argued that the three person felonies did not amount to an individual with a long history of violence.
4. Reed's codefendant received probation for the role he played in the case.
In making its decision, the district court noted Reed's young age, 17, at the time the multiple counts of person felonies were committed. The court pointed out that the three person felonies scored all arose out of one incident. Furthermore, the judge expressed his belief that the disparity argument had merit, and he viewed it as the principal basis for granting the departure motion. The judge then summarized his findings as follows:
“So in that regard, then, having granted the motion for durational departure, taking into account the nature and circumstances of the crime, the history, character and condition of the defendant and the lowest minimum sentence which in the opinion of the Court is consistent with public safety, the needs of the defendant and the seriousness of the crime, I will make the following findings and orders.
“... [T]he primary crime that controls the base sentence is a severity level one person felony. The defendant's criminal history is in grid box A; however, based on the durational departure findings, I will sentence Mr. Reed to a term of 272 months, which is the standard number for a severity level [one, criminal history] C.”
And finally, the judge indicated he wanted to also mention the public safety aspect of the case. He noted that even though Reed's criminal history would indicate a serious public safety risk, it had been his experience that often after people have been in prison for a while, they get tired of their criminal behavior and get out and lead productive lives, implying that he believed this would be the case with Reed.
So clearly the district court took into consideration the disparity between the sentences for attempted first-degree murder and completed first-degree murder. But in addition, the district court also considered the fact that the three person felonies which bumped Reed into a criminal history A score were all committed as part of a single incident. And finally, it appears that the district court also took into account Reed's age at the time of his crimes and the public safety risk Reed presented.
Based on the record, the district court's decision to grant the downward durational departure was supported by substantial and compelling evidence, was not arbitrary, fanciful, or unreasonable, and it was not based on an error of law or fact. See Ward, 292 Kan. at 550. So the district court did not abuse its discretion in granting the motion.
Affirmed.