Opinion
No. 108,305.
2015-01-23
STATE of Kansas, Appellee, v. Michael STATEN, Appellant.
Appeal from Wyandotte District Court; Raobert P. Burns, Judge.Rebecca L. Kurz, of The Kurz Law Office, LLC, of Mission, for appellant.Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Raobert P. Burns, Judge.
Rebecca L. Kurz, of The Kurz Law Office, LLC, of Mission, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Michael Staten appeals his conviction of one count of aggravated battery in violation of K.S.A.2013 Supp. 21–5413(b), a severity level 4 person felony. The district court sentenced Staten to 154 months' imprisonment. Staten contends: (1) the district court erred by failing to instruct the jury that it was the State's burden to prove he did not act in self-defense; (2) the prosecutor committed prosecutorial misconduct by eliciting testimony from Staten that he caused great bodily harm to the victim and by using that testimony to argue Staten admitted he was guilty of aggravated battery; (3) the district court erred by failing to make further inquiry into Staten's request for new counsel before denying his motion; and (4) cumulative errors deprived Staten of a fair trial. We affirm.
Factual and Procedural Background
In July 2011, Yvonne Williamson and Staten had been dating for about 8 months, and they shared an apartment in Wyandotte County. On July 21, 2011, Williamson left work at 9 p.m. and returned to their apartment. As Williamson began to prepare dinner, she began to argue with Staten about something trivial. Williamson left the apartment to avoid getting into a bigger argument and went to the liquor store. As she walked home, Williamson was joined briefly by a man named Slim.
Upon returning to the apartment Williamson began to cook. Staten was upset after he saw Williamson with Slim and he resumed the argument. Williamson left the apartment for a second time and walked over to a friend's house. While she was there, Williamson drank half of a half-pint of brandy and smoked marijuana. Williamson testified she had also used cocaine that day.
Williamson walked home at about 1:30 or 2 a.m. She saw some empty beer cans and liquor bottles in the trash and assumed Staten had been drinking. Staten was very angry, and he told Williamson to get her stuff and leave the apartment. Williamson packed some of her belongings, and Staten threw them onto the porch. Williamson sat outside in her car for awhile until Staten came outside and asked her to “talk it out” inside the apartment.
During the conversation, Williamson called Staten a “bitch.” Williamson said that Staten “flipped the script.” She testified that “he pulled my hair, pulled me into the bathroom, had the keys in his hand and just started beating on me.” When Staten grabbed Williamson by the hair, she responded by biting his arm. Williamson did not break the skin when she bit Staten. Williamson stated that she did not threaten Staten or attempt to harm him in any way except for the bite.
During the altercation, Staten threatened to kill Williamson. She testified:
“He said bitch, I'm going to kill you tonight and I'll turn myself in in the morning but I'm going [to] kill you tonight. And he had his arm wrapped around my neck and I felt—heard my neck crack twice on both sides and he just—he said when I get through with you ain't nobody going [to] want you after I get through with you and I deserve to die.”
Williamson testified that Staten lay on top of her, choked her, and punched her in the face with the keys in his hand. There was blood everywhere. Eventually, Staten got off of Williamson to get something, and she was able to get up and run outside to yell for help. Staten followed Williamson outside and began hitting her with a stick that had a screw or nail attached. Williamson fell to the ground, and Staten kicked her and continued hitting her with the stick. As Williamson attempted to defend herself from the blows, she broke her finger. Staten also used the stick to stab Williamson one time in the chest. Williamson testified that “after that last kick I just laid there. That's when he reached down and yanked off my cross and threw it somewhere and I just laid there and waited for the ambulance.” Williamson testified that she believed the beating would have continued if she had continued moving.
Emmanuel Rivera, who lived in the same apartment complex, testified that he woke up to the sound of someone asking for help. When his dog started barking, he got up and went outside. Rivera testified that he “saw somebody beating the crap out of a woman.” Rivera identified Staten as the man he saw hitting Williamson with a stick. Rivera saw the stick break, but Staten did not stop:
“He continued to hit her. He struck her with the stick, he kicked her, he also drag her around the ground. I mean—yes, it was very savage the way he is beating her up and I screamed to him to let her go, that they should solve their problems in a different way.
“Q. When you screamed at the defendant, did he stop beating her?
“A. No. He continued to beat her up for approximately maybe two to three minutes, and I continuously yelled at him to stop doing it, but he didn't, and at some point I screamed and I said that I was going to call the police if he didn't stop.”
Rivera testified that it looked like Staten was trying to kill Williamson. Williamson remained on the ground during the beating and was unable to defend herself or fight back. Staten eventually threw the stick aside and left the scene. Rivera approached Williamson, believing she might be dead, and told her that he would call for an ambulance.
Edward Miller and Nicole Vaughn were friends of Staten and Williamson and lived in the same apartment complex. Vaughn woke up to noise outside. She testified that it looked like Staten and Williamson were fighting. Vaughn woke up Miller and told him that he needed to “come and get Pops.” Miller referred to Staten as “Pops” because he considered him to be a father figure. By the time Miller got his clothes on and got outside, the altercation between Staten and Williamson was over. He saw Williamson lying down in the parking lot with blood on her. Miller testified that he heard Staten say that Williamson “deserved it.”
Vaughn testified that she saw Staten strike and kick Williamson. Vaughn heard Staten say “this bitch deserves to die.” Vaughn did not see Williamson fight back, noting that “[s]he was pretty much helpless.” Vaughn called 911 because Williamson needed help. Vaughn testified that she did not recognize Williamson: “[I]t was so much blood. Head, hair was matted to her head, face swollen, I didn't recognize her. It wasn't a pretty sight.” Vaughn testified that Williamson was unable to talk, and Vaughn thought she might be dead.
Officer Clinton Swan was dispatched to the apartment complex. When he arrived, he saw paramedics attending to Williamson in the driveway. Swan noted Williamson was covered in blood, she had severe lacerations on her face, her eyes were swollen shut, and her clothing was torn. Swan found Williamson to be compliant and unarmed. Williamson told Swan that Staten had beat her with a wooden stick. Swan checked the inside of the apartment for Staten, but he was not there. Swan noticed the apartment had blood staining on the wall throughout much of the apartment and “there was also pooled blood in the hallway and in the bathroom of that apartment.”
Officer Christopher Blake was also dispatched to the apartment complex. When he arrived, he saw the fire department and paramedics attending to Williamson. Blake observed that Williamson had “pretty significant injuries” to her face, with swollen eyes, lacerations, and that Williamson looked like she had been assaulted with something. Blake located three to four pieces of a broken wooden stick in the parking lot approximately 10 to 15 yards away from Williamson.
Blake approached Williamson's apartment and noticed clumps of hair next to the door and blood on the outside of the door. He was granted entry into the apartment by the maintenance man. Blood was on the doorframe and in between the doorknob and the lock. There was blood on the kitchen floor, a smear of blood on the wall near the living room, and a bloody shirt was on the couch in the living room. Blood patterns on the walls in the hallway suggested that the victim was trying to pull himself or herself up. A significant amount of blood was found in the bathroom and on the carpet in the hallway. Blake testified the blood patterns suggested that Williamson was assaulted inside the apartment and that the low level of the blood indicated that she was close to the floor as she was being hit. Blood samples taken from the broken stick and the T-shirt matched the known DNA sample of Williamson and excluded Staten as a possible contributor.
Paramedics took Williamson to the emergency room of the University of Kansas Medical Center where she was treated by Dr. Erasmo Serrano. Serrano testified that Williamson had four deep lacerations to her face and forehead, which required sutures and would result in scarring. Williamson has several scars on her face from the incident. In addition, Williamson suffered a grade 3–liver laceration, a fractured left pinky finger, a nondisplaced nasal bone fracture, and a blowout fracture of the right orbit. Williamson was hospitalized for 4 days to receive treatment for these injuries.
Staten's theory of self-defense
Staten testified in his own defense. Staten's version of events differed from Williamson's version in several ways. Many of those details are insignificant and will not be recounted in detail. According to Staten, Williamson was the aggressor when she ran up to him and called him a “bitch.” Staten testified that he threatened to call the police to make her leave the apartment. At this point, Staten said Williamson grabbed his right hand and bit him. In response, Staten put Williamson in a headlock to try to get her to stop biting. During the struggle, they wound up on the bathroom floor. Staten testified that he hit Williamson three to four times until she finally let go of his finger.
Staten testified he got up to call the police when Williamson found a wooden stick they used to hang laundry and hit him in the face, stating that he deserved to die. Staten claimed he ran outside, and Williamson followed him with the stick. As they left the apartment, Staten said he tripped and fell to the ground. Williamson hit Staten's arm with the stick and then fell on top of him. Staten managed to get the stick from Williamson, but she continued to be aggressive. Staten swung the stick at Williamson to attempt to get her to back off. When she did not back down, Staten hit her with the stick at least four times.
Staten testified that he felt as if he might sustain injury if he did not grab the stick and fight back. Staten believed he “probably would have died” if he did not get the stick away from Williamson and defend himself. Staten testified he left the scene before the police arrived so that he could take pictures of his injuries. When Staten was arrested on July 29, 2011, he had no visible injuries.
Facts relating to Staten's allegation of prosecutorial misconduct
On cross-examination, the prosecutor showed Staten a photograph of Williamson's injuries and asked him if Williamson had suffered great bodily harm:
“Q. Okay. You caused all of these injuries, correct?
“A. Yes, ma‘am.
“Q. Would you agree with me that what she suffered was great bodily harm as a
result of this incident?
“A. And me defending myself, yes, ma‘am.
“Q. So you acknowledge that she suffered great bodily harm?
“A. In defense of myself, yes.”
During closing argument, the prosecutor argued:
“The defendant himself testified. He's charged with [aggravated] battery, and you know what he told you? All of these elements that I have to prove to you beyond a reasonable doubt are true. He said yes, it happened in Wyandotte County, and yes, I caused great bodily harm to her. He gives you that, so he is guilty of aggravated battery as we stand here.
“But what he wants you to do is he wants you to excuse his behavior. He wants to be able to walk away from this situation because he's now claiming it was self-defense. Self-defense is an important right, it's a right we all share. We should all be able to protect ourselves when someone attacks us, and it is very important and it's not to be taken lightly and it's not to be used as an excuse after the fact when you've attacked someone. And that's what happened in this case.
“But I do—you do need to go back and look carefully at self-defense and decide as a jury is he entitled to do this to this woman under self-defense? First of all, the law in self-defense is that it's permitted when and to the extent necessary to defend against imminent use of force.
“I mean, we can all think of examples in our mind that probably have nothing to do with this. Classic example, someone's trying to break down your door and you shoot at them. You know, we hear that on the news occasionally and the police are called and you're standing there [saying] here's my gun, there's the body, right? That's self-defense. It's permitted when and to the extent necessary. An imminent attack.
“We can't wait around and say hey, someone broke into my house, they left, I followed them down the street and shot them. That's not appropriate. That's what this defendant is trying to do under the facts of this case.
“First of all, you have to decide was she an imminent threat to him? And we'll talk a little bit about the physical evidence later, but all the physical evidence corroborates her statement as well, by the way. Independent witnesses corroborate her statement.
“We have Nicole and Emmanuel both saying he's kicking her while she's down on the ground repeatedly, he's striking her with a weapon while she's down on the ground repeatedly to the point they think she's dead. She's not even moving. And we have two independent witnesses telling us he's doing this to her. Is that her imminent use of force? Does that allow him to beat her in that way?
“It also requires a reasonable belief by this defendant. Now. I would argue to you that he didn't have a reasonable belief, that he saved up these frustrations with her, being with another man, wanting to leave, et cetera. He saved those frustrations up until he cracked. He brutally beat her and now he wants to come back and excuse himself from it long after, long after.
“But let's give him that reasonable belief because we want him to have a fair trial, we want to give him the presumption of innocence. Let's give him that, but the second thing you have to have is a reasonable belief by reasonable people in addition to his belief. We are the reasonable people, you are the reasonable people that get to decide that.
“In order for you to excuse him, you have to say that myself, as a reasonable person, I would have beat her like that. I would have beat her like that under these circumstances, and if you can't do that, then it's not self-defense. We already know he's acknowledged he's guilty of this crime, and without this excuse that he wants to talk about now that the police weren't able to find him to talk about it on the night in question, without that he is guilty of aggravated battery.”
Motion for new counsel
On January 30, 2012, immediately prior to the commencement of the jury trial, Staten filed a motion for a new counsel. Staten had previously filed a disciplinary complaint against defense counsel, but it had been dismissed. Upon inquiry, defense counsel indicated to the district court that he was prepared for trial as long as he had one more opportunity to meet with Staten before he testified. Defense counsel had been unable to meet with Staten the previous evening because the jail had transferred him to a different facility.
When the district court asked Staten the basis for his motion for new counsel, Staten noted a list of things that he felt defense counsel had failed to do for him:
“The basis of my motion to relinquish counsel comes with a lot of reasons why I need to do that for my freedom's sake. My first point was he failed to challenge the validity of the affidavit for application for warrant. When I told him or tried to tell him at the preliminary hearing what the detective had done to write up that warrant and he told me I couldn't say nothing to him, but after that I wrote letters explaining to him what I was trying to tell him in court and he didn't reply to anything.
“He failed to bring to the attention of the Court evidence of the altered statement that I just mentioned by the detective, Gunzenhauser. He failed to uphold his legal obligations to keep me informed of any changes in my case.
“He failed to comply with my request to file any motions on my behalf. That's why I had to—I filed those motions pro se myself.
“He failed to give any legal response to his duty as my counsel as to questions pertaining to my case due to numerous letters that I've written him that he instructed me to do when I found out something that could help my case.
“Failure to investigate the evidence of misconduct of Detective Gunzenhauser, and failure to attack the warrant of arrest. And those are my bases.”
The district court made no further inquiry before ruling that Staten had not shown justifiable dissatisfaction by showing an actual conflict of interest, an irreconcilable conflict, or a complete breakdown in communication. The district court found the reasons given by Staten did not rise to the level necessary to appoint new counsel. In addition, the district judge noted that he had previously ruled on Staten's pretrial motions, finding them without merit. There is no support in the record for Staten's assertion that he wrote a letter to the judge 3 weeks prior to trial expressing dissatisfaction with his defense counsel. Counsel filed a motion requesting this letter to be added to the record on appeal, but the motion was denied because it should have been filed in the district court. After the trial, Staten filed a “Motion to Discharge Attorney.” The district court appointed new counsel for Staten's appeal.
When the district court asked if there was anything else that needed to be put on the record before the jury panel was present, Staten responded, “Yes, sir.” The following exchange occurred:
“THE COURT: You have an attorney, okay? I don't need to hear anything more from you.
“[STATEN]: Well, you said something that I wasn't aware of. First with the communication breakdown. I haven't spoken with [defense counsel] since September, and the first time he talked to me about my case was last week, so that's a communication breakdown right there, then the motion that I filed that he said he didn't know the factual basis of. We talked about that Wednesday and Thursday last week, so for him to stand up in this courtroom and tell you that lie, that's a conflict of interest right there.
“THE COURT: Well, your motion is denied. We'll be ready to proceed.
“[STATEN]: So I've got to go with an ineffective counsel for my trial?
“THE COURT: You have not articulated that he's ineffective, sir .”
Jury Instructions
After the defense rested, an instruction conference was held outside the presence of the jury. Staten had no additions or objections to the jury instructions.
The jury instructions included the standard PIK instruction on Aggravated Battery (PIK Crim. 4th 54.310):
“The defendant is charged with the crime of aggravated battery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally caused great bodily harm to another person; to wit: Yvonne Williamson; and
“2. That this act occurred on or about the 22nd day of July, 2011, in Wyandotte County, Kansas.”
The jurors were also given the standard PIK instruction on defense of a person (PIK Crim. 4th 52.200):
“Defendant claims his use of force was permitted as self-defense.
“Defendant is permitted to use force against another person when and to the extent that it appears to him and he reasonably believes such physical force is necessary to defend himself against the other person's imminent use of unlawful force. Reasonable belief requires both a belief by a defendant and the existence of facts that would persuade a reasonable person to that belief.”
Finally, the jury was given a PIK instruction regarding reasonable doubt (see PIK Crim. 4th 51.010):
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.”
The district court did not instruct the jury on the burden of proof specific to affirmative defenses. See PIK Crim. 4th 51.050.
Verdict
The jury convicted Staten of one count of aggravated battery. Staten's motion for a new trial, which was based on the district court's failure to give instructions for a lesser included offenses, was denied.
Staten's motion for a downward departure was denied, and the district court sentenced him to a presumptive prison term of 154 months' imprisonment. Staten had the opportunity to speak at sentencing and did not raise the issue of wanting a new counsel. After sentencing, Staten filed a motion asking for the appointment of new counsel. New counsel was appointed, and Staten filed a timely notice of appeal.
Did the District Court Err by Failing to Instruct the Jury that It Was the State's Burden to Prove that Staten Did Not Act in Self–Defense?
Staten first argues the district court erred in failing to instruct the jury that it was the State's burden to prove that Staten did not act in self-defense. Staten's argument is based on language in K.S.A.2013 Supp. 21–5108(c), which provides that once a defendant has satisfied the burden of producing competent evidence supporting an affirmative defense, the State has the burden of disproving the defense beyond a reasonable doubt.
The altercation between Staten and Williamson occurred on July 22, 2011, after the recodification of the Kansas Criminal Code. On July 1, 2011, K.S.A.2011 Supp. 21–5108 replaced K.S.A. 21–3109. K.S.A.2013 Supp. 21–5108(c) now provides:
“(c) A defendant is entitled to an instruction on every affirmative defense that is supported by competent evidence. Competent evidence is that which could allow a rational fact finder to reasonably conclude that the defense applies. Once the defendant satisfies the burden of producing such evidence, the state has the burden of disproving the evidence beyond a reasonable doubt.” (Emphasis added.)
Staten relies on K.S.A.2013 Supp. 21–5108 in arguing that the district court's failure to instruct the jury that the State must prove beyond a reasonable doubt that Staten did not act in self-defense constitutes structural error. Staten claims that the adoption of K.S.A.2013 Supp. 21–5108 alters Kansas law and now places the burden of proof on the State to prove the nonexistence of the defense as an element of the crime. Staten asserts that the district court is now required to instruct on any relevant affirmative defense, and in addition, the district court must now inform the jury that the State must disprove the affirmative defense beyond a reasonable doubt.
Staten maintains that his constitutional due process rights were violated by the district court's failure to instruct the jury the State had to prove beyond a reasonable doubt that Staten did not act in self-defense. If a reasonable doubt instruction unconstitutionally dilutes the State's burden of proof, the instruction affects the defendant's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. State v. Womelsdorf, 47 Kan.App.2d 307, 330, 274 P.3d 662 (2012) (citing Sullivan v. Louisiana, 508 U.S. 275, 277–82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (denial of the right to a jury trial by giving a defective reasonable doubt instruction constituted structural error requiring reversal of defendant's conviction).
Here, the general burden of proof instruction informed the jury that the State had the burden of proof to show the defendant is guilty, and the defendant is not required to prove that he is not guilty. The present case presents a similar instructional error and similar factual circumstances to those addressed by our Supreme Court in State v. Cooperwood, 282 Kan. 572, 147 P.3d 125 (2006), and State v. Crabtree, 248 Kan. 33, 805 P.2d 1 (1991). The State asserts this court should follow a similar analysis in determining the failure of the district court to specifically inform the jury that the State had to show Staten did not act in self-defense beyond a reasonable doubt amounts to harmless error. This court must determine whether the adoption of the language in K .S.A.2013 Supp. 21–5108(c) changes this analysis.
Citing State v. Parish, 118 N.M. 39, 42–44, 878 P.2d 988 (1994), Staten argues that through the adoption of K.S.A.2013 Supp. 21–5108(c), the absence of justification through the assertion of self-defense becomes an element of the crime. In Parish, the defendant claimed the jury instructions were deficient in his claim that voluntary manslaughter was justified through self-defense. The evidence indicated that the defendant was chased, attacked, and brutally beaten before he pulled out a gun and shot one of his assailants. The State points out that the facts in this case supporting self-defense as justification for the defendant's actions were much weaker, with most of the evidence supporting the victim's version of events. The Parish court held that even though the absence of justification was not an element of the voluntary manslaughter statute, it became an element of the crime when the defendant raised sufficient evidence that his actions were lawful under a theory of self-defense. 118 N.M. at 42–44.
Other courts have examined the same instructional error and concluded that the error did not amount to reversible error so long as the district court's remaining instructions informed the jury that the State always had the burden of proof or that the burden of proof never shifts to the defendant. See United States v. Jackson, 569 F.2d 1003, 1010 (1978); Tichnellv. State, 287 Md. 695, 415 A.2d 830 (1980); State v. Kutchara, 350 N.W.2d 924, 927–28 (Minn.1984).
There is nothing in K.S.A.2013 Supp. 21–5108(c) that indicates that the nonexistence of the affirmative defense becomes an actual element of the crime. Kansas courts have yet to rule on whether K.S .A.2013 Supp. 21–5108(c) has the effect of making the absence of justification an element of the crime once self-defense is asserted as an affirmative defense. K.S.A.2013 Supp. 21–5108(c) makes it clear that it becomes the State's burden of proof to refute the affirmative defense, but there is no case where the assignment of the burden of proof has been deemed to be an element of an offense. In Kansas, all crimes are statutory, and the elements necessary to constitute a crime must be gathered wholly from the statute. See K.S.A. 2103 Supp. 21–5413; K.S.A.2013 Supp. 21–5222; State v. Thacker, 48 Kan.App.2d 515, 517, 292 P.3d 342 (2013).
Regardless of whether the burden of proof in a self-defense case is to be considered an element of the crime, the failure to instruct on an element of a crime does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Two instructive cases on this issue are Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), and State v. Daniels, 278 Kan. 53, 91 P.3d 1147 (2004). The Neder Court held that the failure to give an instruction on an element of a crime is structural error demanding reversal in very limited cases. 527 U.S. at 8. If a case does not fit within the limited category, the failure to instruct on an element is subject to a harmless error analysis. The test to determine whether such an error is harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. 527 U.S. at 15. If the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. 527 U.S. 17; Daniels, 278 Kan. at 62. An error is structural if it is so intrinsically harmful that it defies the harmless error standard. Miller v. State, 298 Kan. 921, 318 P.3d 155 (2014); Daniels, 278 Kan. at 61. The error claimed in this case does not rise to the level of structural error, and this case must be determined on the basis of the harmless error standard.
Kansas courts have applied harmless error and clearly erroneous standards in cases dealing with claims of errors due to improper jury instructions.
“ ‘For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).’ [Citation omitted.]” State v. Smyser, 297 Kan. 199, 203–04, 299 P.3d 309 (2013).
In those cases where a party does not object to the giving or failure to give jury instruction, the test is whether the instruction or the failure to give the instruction is clearly erroneous. Smyser, 297 Kan. at 204; see K.S.A.2013 Supp. 22–3414(3). The appellate court uses a two-step process in determining whether the challenged instruction was clearly erroneous: (1) the court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record; (2) if the court finds error, it must assess whether it is firmly convinced that the jury would have reached a different verdict without the error. Smyser, 297 Kan. at 204.
Staten admitted that he was involved in an altercation with Williamson. His only defense was his claim that he acted in self-defense, asserting that his use of force against Williamson was lawful and justified.
In this case, the district court found that Staten met the threshold requirement in showing sufficient evidence the jury should be instructed regarding his theory of self-defense. The district court gave the jury instructions regarding the elements of aggravated battery, Staten's claim of self-defense, and the general instruction that the State has the burden of proof to show that the defendant is guilty. Jury Instruction No. 9 specifically denotes that Staten is not required to prove that he is not guilty. It is not disputed the district court did not specifically instruct the jury that the State has the burden of disproving the defense beyond a reasonable doubt.
The State concedes that the district court erred in failing to instruct the jury in accordance with PIK recommendations. In this case, the standard PIK instruction on defense of a person was given. See PIK Crim. 4th 52.200. PIK also recommends that that PIK Crim. 4th 51.050 be given in connection with the standard PIK instruction regarding self-defense. See Notes on Use PIK Crim. 4th 51.050. PIK Crim. 4th 51.050 provides:
“The Defendant raises self-defense as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant.”
While it is conceded it was error for the district court not to give such an instruction similar to PIK Crim. 4th 51.050 (formerly 52.08), the State maintains that this error is not structural error and does not amount to reversible error; rather, any error in the jury instructions was harmless. See Cooperwood, 282 Kan. at 580 (the district court's failure to follow PIK's Notes on Use and instruct the jury on the burden of proof in a case when self-defense is asserted did not amount to reversible error).
Prior to the adoption of K.S.A.2013 Supp. 21–5108(c), our Supreme Court has examined the district court's failure to give an instruction patterned on the current PIK Crim. 4th 51.050 and concluded that the error did not constitute clear error. As previously discussed, PIK Crim. 4th 51.050 informs the jury that it should consider the defense of self-defense when determining whether the State had met its burden of proof and further emphasizes that the burden of proof never shifts to the defendant. In Cooperwood and Crabtree the Supreme Court examined the district's court's failure to give a similar jury instruction and concluded that the failure to give the instruction was not clear error when the jury had been instructed on the general rule that the State has the burden of proof and the defendant does not have to prove he is not guilty. Although the Crabtree court also relied on the fact that there was “a bare scintilla of evidence, if any,” 248 Kan. at 40, that would justify a self-defense instruction, the Cooperwood court applied the clear error analysis when the evidence was essentially a credibility determination between the defendant's and the victim's version of events. 282 Kan. at 581–82.
Harmless error?
Here, the State persuasively argues that any error in the district court's failure to instruct the jury that it is the State's burden to refute the defendant's theory of self-defense constitutes harmless error. Staten claims that Williamson was the aggressor. At trial, he testified that Williamson bit him and sought out and obtained the wooden stick that he eventually used to inflict the beating on Williamson. Even under Staten's version of events, he admitted that he had control of the stick when Williamson again tried to attack him. After Staten gained control of the stick, he admitted to hitting Williamson at least four times. On cross-examination, Staten admitted that he was in a position of dominance over Williamson after he gained control of the stick. Staten claimed he injured his finger and had some swelling and bruising, but he did not seek medical treatment. Even if Staten's version of events is believed, the evidence shows he inflicted great bodily harm on Williamson as she lay on the ground. This evidence does not support Staten's theory of self-defense.
When the evidence is viewed as a whole, the weakness in Staten's defense is even more evident. The physical evidence in the apartment supports the fact that Williamson was bleeding profusely as she lay close to the ground and attempted to leave the apartment. None of the witnesses saw Williamson attack Staten. Rather, the witnesses described Staten brutally beating Williamson as she lay on the ground. Both Rivera and Vaughn indicated that they thought Staten might have killed Williamson. Williamson's injuries were severe and required 4 days of hospitalization. In contrast, Staten did not seek medical treatment for his bite or his bruises.
Staten points to comments made in opening argument to grasp at the notion that the verdict might have been different if the jury had been instructed that the State had the burden of disproving Staten's theory of self-defense. The complained-of comments are as follows:
“At the conclusion of the evidence, you will have no doubt that this defendant is the one who perpetrated the crime alleged. He is the one that beat Yvonne Williamson. You will also have no doubt in your mind that the law excuses his behavior in any way, shape or form. You're not going to have an instruction that's going to allow you to excuse this behavior for any reason.
“At the conclusion of the evidence you will be able to render the only verdict that is sufficient according to the law and the evidence, which is that the defendant is guilty of the aggravated battery of Yvonne Williamson. Thank you.”
However, in closing argument, the prosecutor talked extensively about the defendant's theory of self-defense, informing the jury that self-defense is an important right and “[w]e all should be able to protect ourselves when someone attacks us.” However, the prosecutor pointed out that self-defense is permitted only “when and to the extent necessary to defend against imminent force.” The prosecutor pointed to the fact that the witnesses testified Williamson was lying on the ground and not even moving as Staten beat her with the wooden stick. In this case, the prosecutor made it clear to the jury that Staten's theory of self-defense did not fit the evidence presented at trial. The failure to properly instruct the jury that the State had the burden of disproving the defendant's theory of self-defense was not compounded by any comments made by the prosecutor. The prosecutor correctly stated the law of self-defense in opening and closing arguments.
Under these circumstances, this court finds that the instructional error “ ‘did not affect a party's substantial rights, meaning it will not or did not affect the trial's outcome.’ [Citation omitted.]” State v. Acevedo, 49 Kan.App.2d 655, 665, 315 P.3d 261 (2013). Viewing the record as a whole, “ ‘there is no reasonable probability that the error affected the trial's outcome.’ [Citation omitted.]” 49 Kan.App.2d at 665. The comments by counsel, jury instructions, and the evidence presented at trial allowed the jury to consider whether Staten acted in self-defense, and it chose to reject such a theory. There is no indication that the jury was confused or shifted the burden of proof to Staten. Rather, the evidence that Staten acted in self-defense was weak and not supported by the physical evidence or by the eyewitness testimony. It was error not to instruct the jury that the State had the burden of disproving Staten's theory of self-defense. However, after reading the instructions as a whole and assessing the strength of the Staten's evidence of self-defense, we are not firmly convinced the jury would have reached a different result had the proper instructions been given. The failure to properly instruct the jury is harmless error.
Did the Prosecutor Commit Misconduct by Eliciting Testimony from Staten that He Caused Great Bodily Harm to Williamson and Using that Testimony to Argue Staten Admitted He Was Guilty of the Charged Crime?
Staten next argues that the prosecutor committed reversible misconduct by asking him to admit elements of the crime during cross-examination and subsequently using the elicited testimony to argue in closing argument that he was guilty of the charged crime of aggravated battery.
First, Staten points to the prosecutor's questioning of Staten during cross-examination. Staten complains the prosecutor elicited a concession from Staten that he caused great bodily harm to Williamson. Then, during closing argument, the prosecutor stated that the elements of the crime were established beyond a reasonable doubt and Staten was guilty “as we stand here.” In addition, the prosecutor stated, “We already know he's acknowledged he's guilty of this crime.”
Staten has a preservation issue in regards to any evidence in the form of his testimony elicited by the prosecutor during cross-examination. A 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. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012). Here, no objection was made to the line of questioning by the prosecutor. As such, this court will not consider Staten's claim that the line of questioning was improper. Staten acknowledges that this aspect of his claim cannot be reviewed. However, the claim is intertwined with his claim that the prosecutor committed misconduct in closing argument.
Staten's second claim of alleged misconduct occurred during closing argument, and Staten was not required to object in order to preserve the issue for appeal. When analyzing a claim of prosecutorial misconduct during closing argument, this court must first determine whether the prosecutor's comments were outside the wide latitude the prosecutor is allowed in discussing the evidence. If they were, then misconduct occurred and the court must determine whether the comments prejudiced the jury and denied him a fair trial. In this second step, the court considers three factors: (1) whether the misconduct was gross and flagrant; (2) whether it was motivated by ill will on behalf of the prosecutor; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. State v. Maestas, 298 Kan. 765, 773–75, 316 P.3d 724 (2014).
“None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, [22], 17 L.Ed.2d 705, 87 S.Ct. 824 (1967) (conclusion beyond a reasonable doubt that the error had little, if any, likelihood of changing the results of the trial, have been met.)” State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 (2008).
The third factor requires the State, as the party who has benefited from the misconduct, bear the burden to show there is no reasonable probability that the error affected the defendant's substantial rights. Maestas, 298 Kan. at 774–75. K.S.A. 60–261 states that no error at trial is grounds for granting a new trial or setting aside a verdict unless it appears “inconsistent with substantial justice.”
Staten argues the prosecutor committed misconduct in closing argument when she declared that Staten had admitted Williamson suffered great bodily harm. He asserts the closing argument was argumentative, pointed to information beyond Staten's competence, and invaded the province of the jury.
Our Supreme Court recently reiterated the “limited” freedom granted to prosecutors during closing argument:
“Prosecutor's enjoy wide latitude in crafting closing arguments. [Citations omitted.] This latitude allows a prosecutor to make reasonable inferences based on the evidence, but it does not extend so far as to permit arguing facts not in evidence. [Citation omitted.] Arguments must remain consistent with the evidence. If they are not, the first prong of the prosecutorial misconduct test is met and on appellate review the court must consider whether the misstatement prejudiced the jury against the defendant and denied the defendant a fair trial. [Citation omitted.]” Maestas, 298 Kan. at 774.
Staten cites State v. Crum, 286 Kan. 145, 153, 184 P.3d 222 (2008), in support of his complaint of prosecutorial misconduct. In Crum, the defendant was convicted of first-degree premeditated murder after the victim died of multiple blunt force injuries. The prosecutor cross-examined the defendant about the manner of death and the element of premeditation, asking questions such as: (1) “Somebody meant to hit [the victim] with a hammer that many times, right?” (2) “To beat someone on the side of the building and then drag them around back and continue to beat them, that means somebody really thought about it, doesn't it?” and (3) “They put thought into it and they wanted to—they wanted him to die?” 286 Kan. at 152–53. The defendant generally evaded answering the questions, merely stating that he could not say what someone else meant to do.
On appeal, the defendant argued the questions were inflammatory, improperly invaded the province of the jury, and called for speculation. The State responded that the cross-examination merely elicited opinion testimony under K.S.A. 60–456(a). The Kansas Supreme Court found misconduct:
“Where the State's reliance on K.S.A. 60–456(a) falters is that Crum's opinion on premeditation had no bearing on the jury's ability to understand Crum's testimony and had no relevance to the jury question of premeditation. What Crum might think was in the killer's head was no more material to the case than what any given person on the street might opine. Again, the solicitation of Crum's opinion on premeditation was argumentative, sought information beyond the witness' competence, and invaded the province of the jury .” 286 Kan. at 153.
The Crum court found that the prejudicial effect of the questions was tempered because the defendant did not concede the elements of the crime. But the court was concerned about the comments made during closing argument: the prosecution argued that it did not need to argue premeditation because the defendant had taken the stand and admitted that it was a planned killing. The prosecutor argued that premeditation was not disputed. The Supreme Court stated: “Even if one could fairly characterize Crum's testimony as presenting a properly admitted lay opinion that the crime scene evidence showed the killing was premeditated, the issue of premeditation was not undisputed.” 286 Kan. at 154. The Supreme Court found that the prosecutor's argument exceeded the wide latitude afforded prosecutors in closing argument. In addition, the prosecutor's assertion that Crum's testimony amounted to a stipulation of premeditation “connotes ill will or such a misunderstanding of basic legal principles as to be tantamount to ill will.” 286 Kan. at 154–55. Even though misconduct was unequivocally found, relief was denied because the court found that premeditation was not a close call for the jury. The identity of the attacker was the critical issue. The court concluded that the harmless error tests of both K.S.A. 60–261 and Chapman were met; therefore, the court declined to reverse Crum's convictions. Crum, 286 Kan. at 154–55.
In the present case, the prosecutor argued that Staten did not dispute the elements of the alleged crime and thus was “guilty of aggravated battery as we stand here.” In addition, the prosecutor stated, “All of these elements that I have to prove to you beyond a reasonable doubt are true.” Staten argues these assertions exceeded the bounds of permissible conduct, amounted to gross and flagrant conduct, and showed ill will on the prosecutor's part.
The State responds that this case is distinguishable from Crum because Staten had admitted his role in the crime and his “opinion on the victim's injuries, which he admittedly caused, had a bearing on the jury's ability to understand his testimony and had relevance to the jury question of great bodily harm and self defense .” In addition, the State claims the manner in which the concession was elicited was not argumentative, did not reach beyond Staten's competence, and did not invade the province of the jury. The State maintains that the severity of the injuries require less speculation than the determination of premeditation, which requires one to interpret the intent or actions of another.
Here, the prosecutor should not have asked Staten whether the element of bodily harm had been met. The determination of whether the victim suffered great bodily harm was a legal issue, not a factual determination, and the ultimate conclusion should have been left to the jury.
A more proper line of questioning would have been whether he conceded that Williamson was badly injured and whether those injuries were inflicted by Staten. However, as in Crum, the element that the prosecutor claimed was conceded by the defendant was not at issue. Here, the jury was provided a definition of great bodily harm: “The word ‘great’ distinguishes the bodily harm necessary to prove aggravated battery from slight, trivial, minor or moderate harm and as such does not include mere bruises which are likely to be sustained in simple battery.” Under this definition, there was little room for debate that the victim suffered great bodily harm. Williamson's injuries were not slight, trivial, or minor. She spent numerous days in the hospital, sustaining deep lacerations, scarring, a liver laceration, a broken finger, and a broken orbit. Williamson testified that she had scars from her injuries and additional long term neck and back pain. The treating physician's testimony supported the State's case that Williamson's injuries were significant.
The determinative issue in this case was not whether Staten caused the injuries that resulted in great bodily harm. The evidence supporting the elements of the crime was strong. The key issue was whether Staten acted in self-defense. Under the facts of this case, the prosecutor's argument that Staten conceded Williamson sustained great bodily harm did not affect his substantial rights. Since the improper closing argument did not invade the province of the jury on the key issue of whether Staten was acting in self-defense, the error in this case is harmless. This court concludes, beyond a reasonable doubt, that the prosecutor's comments did not affect the outcome of the trial.
Did the District Court Err When It Denied Staten's Request for New Counsel?
Staten argues the district court erred when it failed to fully investigate a potential conflict between Staten and his counsel. Staten acknowledges that the district court asked about the basis for his motion for new counsel, but he claims that the district court failed to make an adequate inquiry because the district court failed to ask any questions or follow up on his complaints. The State responds that the district court's procedure was sufficient to determine whether a conflict existed between Staten and his counsel in light of Staten's failure to establish a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication.
Staten had a constitutional right to conflict-free counsel. “It is the task of the district judge to insure that a defendant's right to counsel under the Sixth Amendment to the United States Constitution is honored. [Citation omitted.]” State v. Carter, 284 Kan. 312, 321, 160 P.3d 457 (2007). In order to fulfill this duty, if the district court becomes aware of a potential conflict between the defendant and defense counsel, the court has a duty to inquire further. State v. Vann, 280 Kan. 782, Syl. ¶ 1, 127 P .3d 307 (2006). If irreconcilable conflict arises between a defendant and his or her attorney, the situation may require the appointment of substitute counsel to protect the defendant's Sixth Amendment right to effective assistance of counsel. Carter, 284 Kan. at 321.
“A district court's refusal to appoint new counsel is reviewed under an abuse of discretion standard, which asks whether any reasonable person would take the view adopted by the district court. [Citation omitted.]” State v. Sappington, 285 Kan. 176, 196, 169 P.3d 1107 (2007); see State v. Wells, 297 Kan. 741, 305 P.3d 568 (2013). And if the district court has a reasonable basis to conclude that counsel could provide “effective aid in the fair presentation of a defense,” then it cannot be found to be an abuse of discretion. Sappington, 285 Kan. at 196. The defendant bears the burden of proving the district court abused its discretion in denying the motion for new counsel. 285 Kan. at 196.
On January 30, 2012, immediately prior to the commencement of the jury trial, Staten filed a motion for new counsel. Staten had previously filed a disciplinary complaint against defense counsel, but it was dismissed. Defense counsel indicated to the district court that he was prepared for trial as long as he had one more opportunity to meet with Staten before he testified. Defense counsel had been unable to meet with Staten the previous evening because the jail had transferred him to a different facility.
When the district court asked Staten his basis for his motion for new counsel, Staten noted a list of things that he felt counsel had failed to do for him: failed to challenge the validity of the affidavit for application for the warrant; failed to respond to his letters; failed to bring to the attention of the court evidence of the altered statement made by Detective Gunzenhauser; failed to keep him informed of any changes in the case; failed to comply with his request to file motions, which Staten later filed pro se; and failed to communicate with Staten for a 4–month time period leading up to trial.
The district court stated:
“[U]nder State v. Crum, the defendant who wishes to seek new appointed counsel must show justifiable dissatisfaction. That's been defined as an actual conflict of interest with the current attorney, an irreconcilable conflict between the attorney and the defendant or a complete breakdown in the communication between the defendant and the attorney. I don't find any basis for that at this point. That does not rise to the level necessary to appoint new counsel. Defendant did not articulate justifiable dissatisfaction.
“As far as the motions, we took those up the other day so I don't see any basis whether he adopted those or not. They were without merit at this point, so we will be ready to proceed, we'll get the jury panel brought over.”
When Staten again expressed dissatisfaction with his defense counsel's failure to adequately communication, the district court responded by informing him that the motion was denied and that Staten had failed to articulate reasons showing that defense counsel was ineffective. The district court ruled that no change of counsel was needed under the circumstances.
A defendant must show justifiable dissatisfaction with appointed counsel to justify the appointment of new counsel. State v. Garza, 290 Kan. 1021, 1024–25, 236 P.3d 501 (2010). Justifiable dissatisfaction may be demonstrated by showing that there is a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the defendant and appointed counsel. Crum, 286 Kan. at 158. “[U]ltimately, as long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair representation of a defense, the court is justified in refusing to appoint new counsel.” Bryant, 285 Kan. 970, Syl. ¶ 14.
Here, the district court immediately fulfilled its duty to inquire about the potential conflict. The district court allowed Staten to express his grievances and asked defense counsel whether he was prepared for trial before denying Staten's motion. It would have been preferable for the district court to ask follow-up questions to Staten's complaints and engage in a more open dialogue with Staten. After the district court ruled that Staten had not met his burden to show that appointment of new counsel was necessary, Staten made an additional statement about his dissatisfaction with the ruling. The district court did not ask follow-up questions, but there is nothing in the record that suggests Staten had additional complaints concerning this dissatisfaction with counsel that he was unable to express prior to the ruling on the motion.
Staten has not alleged any viable type of conflict of interest. He was unable to identify specific facts demonstrating an actual conflict or breakdown in communication that went beyond a disagreement regarding defense strategy. Even though Staten expressed dissatisfaction with defense counsel's communication and responsiveness, the record supports the fact that defense counsel had met with Staten a couple of times the week before trial and would meet with him again to prepare him to testify. Staten complained that defense counsel had not adequately represented him on pretrial motions, but the district court noted that pretrial motions had been handled by defense counsel a week prior trial and that Staten's pro se motions were without merit.
Staten complains that the district court never verified Staten and defense counsel could get past their disagreements and continue their working relationship. Although the district court never explicitly made this finding, it was implied in its decision to deny Staten's motion and proceed to trial. Staten points to the fact that when the district judge asked if anything else needed to be put on the record, Staten began to respond and the judge cut him off, stating, “You have an attorney, okay? I don't need to hear anything more from you.” However, despite this, Staten was allowed to make an additional statement in support of his request for new counsel.
Sappington is instructive in evaluating Staten's claim. In Sappington, the defendant made numerous requests for new counsel before and during trial based on allegations of irreconcilable conflicts of interest and a breakdown in communication. New counsel was never appointed, although the district court addressed Sappington's concerns at hearings during which Sappington and his attorney were both allowed to speak. On one occasion, counsel informed the district court that she did not agree with Sappington's request to ask certain questions, and she choose her defense strategy based on Sappington's best interests. Following Sappington's convictions, his counsel filed a motion for new trial, asserting that new counsel should have been appointed. Our Supreme Court held that the district court did not abuse its discretion in handling Sappington's motions. 285 Kan. at 169–70. Sappington establishes the district court's duty to inquire into potential problems between defendants and counsel, but it establishes that a district court has discretion in determining whether to appoint new counsel when such a request is made.
Further instruction may be found in Crum. In that case, the district court addressed Crum's motion for new counsel and made inquiry of both Crum and defense counsel. In facts similar to this case, the request for new counsel came at the last minute prior to trial:
“The court elicited that the appointed counsel had expended time and energy in preparing for trial and was, in fact, ready to proceed. Crum's unilateral problem stemmed from a dissatisfaction with the amount of time and attention the appointed counsel devoted directly to Crum. An attorney's inability to shower as much personal attention upon a client as he or she would like does not necessarily rise to the level of a conflict of interest. See [ State v. McGee, 280 Kan. 890, 897, 126 P.3d 1110 (2006) ] (disagreement about the amount of time and attention defendant should receive does not rise to the level of a conflict of interest).
“In short, we find that Crum failed to establish a justifiable dissatisfaction with appointed counsel such that a denial of the motion to substitute counsel constituted an abuse of discretion.” Crum, 286 Kan. at 158–59.
Staten points to the fact that he had filed a disciplinary complaint against defense counsel prior to trial. The State cites Bryant asserting that the mere filing of a complaint with the Disciplinary Administrator is not enough to establish a conflict of interest. 285 Kan. at 993. Again, the defendant needs to meet his burden in showing justifiable dissatisfaction with his counsel. 285 Kan. at 993.
“[W]hile the better practice would have been for the court to make specific queries of [defense counsel] and Bryant about the nature of the disciplinary complaints, instead of simply asking Bryant to specify why McBratney should not have continued as his counsel, we cannot hold that no reasonable person would have agreed with the district court. It did not abuse its discretion in denying Bryant's motions.” 285 Kan. at 993.
Recently, our Supreme Court has expressed that merely allowing a defendant to make a statement regarding his or her complaints is not a sufficient inquiry. State v. Sharkey, 299 Kan. 87, 99, 322 P.3d 325 (2014) (citing State v. Stovall, 298 Kan. 362, Syl. ¶ 6, 312 P.3d 1271 [2013] ). However, recent caselaw on the issue also notes the defendant bears the burden of showing that the district court abused its discretion in failing to make a sufficient inquiry into the potential conflict. State v. Brown, 300 Kan. ––––, ––––, 331 P.3d 797 (2014)
There is some indication in this case that there was conflict leading up to the motion for the appointment of new counsel. In his posttrial motion, Staten refers to a letter he sent to the judge a few weeks prior to trial asking for the appointment of new counsel. Additionally, Staten references a disciplinary complaint he filed against defense counsel which was subsequently dismissed prior to trial. Neither items of documentation were included in the record on appeal. The party claiming an error occurred has the burden of designating a record that affirmatively shows prejudicial error. State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012). It is difficult for this court to consider the substance of these items when they are not in the record.
Staten's main complaints about defense counsel were the amount of time defense counsel was devoting to his case and various issues of trial strategy. Not all disagreements between counsel and defendants constitute irreconcilable conflicts or lead to complete breakdowns in communication. State v. McCormick, 37 Kan.App.2d 828, 836, 159 P.3d 194 (2007). While a criminal defendant has the right to consult with appointed counsel and discuss the general direction of his or her defense, strategic and tactical decisions dealing with trial strategy are to be left to the professional judgment of counsel. 37 Kan.App.2d at 838. A district court is justified in refusing to appoint new counsel as long as the court has a reasonable basis for believing the relationship has not deteriorated to a pointed were defense counsel can no longer provide effective aid in the presentation of a defense. Bryant, 285 Kan. at 986–87.
Staten does not assert that defense counsel provided an inadequate defense due to a conflict of interest, irreconcilable conflict, or a complete breakdown in communication or that counsel's performance had an adverse effect on the outcome of the trial. A review of the record reveals that defense counsel effectively cross-examined the State's witnesses and presented Staten's theory of self-defense.
It cannot be said that the district court's denial of Staten's motion for the appointment of new counsel was unreasonable. The district court gave Staten an opportunity to explain his complaints. While it would have been preferable for the district court to ask follow-up questions regarding Staten's complaints, Staten failed to meet his burden in showing that the appointment of new counsel was necessary. Staten has not shown a complete breakdown in communication with defense counsel.
“The relationship between a defendant and his or her lawyer can often be strained at times. However, the existence of a strained relationship does not necessarily amount to an irreconcilable conflict or demonstrate a complete breakdown in communications. [Citations omitted.]” State v. Cook, 45 Kan.App.2d 468, 480, 249 P.3d 454 (2011). Here, there is evidence of a strained relationship between Staten and his counsel regarding defense strategy. However, the district court addressed Staten's concerns prior to ruling that the appointment of new counsel was not needed.
Staten has failed to establish a justifiable dissatisfaction with appointed counsel. He fails to present any facts on appeal that would establish that the asserted conflict between himself and his attorney affected his counsel's performance at trial. Accordingly, Staten has not met his burden to show that the district court abused its discretion in failing to fully inquire into Staten's concerns and/or in failing to appoint new counsel.
Does Cumulative Error Mandate Reversal of Staten's Convictions?
Staten argues that cumulative error mandates the reversal of his convictions. In making this argument, Staten points to the faulty instructions, prosecutorial misconduct, and the ineffective assistance of counsel provided by defense counsel. Ineffective assistance of counsel was not argued in this appeal, but Staten attempts to argue that this court should consider defense counsel's failure to preserve various issues for review in its consideration of whether the cumulative effect of the errors denied him a fair trial.
Cumulative trial errors, when considered collectively, may have so great an impact on the trial as to require a defendant's convictions to be reversed. The test is whether the errors substantially prejudiced the defendant and denied the defendant a fair trial under the totality of the circumstances. And if any of the errors being aggregated are constitutional in nature, their cumulative effect must be harmless beyond a reasonable doubt. State v. Santos–Vega, 299 Kan. 11, 27–28, 321 P.3d 1 (2014).
“In other words, was the defendant's right to a fair trial violated because the combined errors affected the outcome of the trial?” State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011). In making this assessment, this court examines the errors in the context of the record as a whole and should consider: (1) how the district court dealt with the errors; (2) the nature and number of errors committed and their interrelationship, if any; and (3) the strength of the evidence. 293 Kan. at 205–06.
In the present case, the district court erred in failing to fully instruct the jury regarding the burden of proof on Staten's theory of self-defense. There were no remedial efforts related to the instructional error because Staten failed to request the instructions that he now claims should have been given to the jury. In addition, Staten did not object to the prosecutor's closing argument at trial and provide the district court with the opportunity to take remedial action. In examining the interrelationship between the instructional error and the prosecutorial misconduct, it cannot be said that the errors were related to each other—the failure of the district court to instruct the jury regarding the burden of proof on the theory of self-defense would not affect whether the jury found the element of great bodily harm had been met. Staten makes no argument as to how any possible prejudice resulting from the failure to give further instructions on self-defense exacerbated or caused further prejudice when viewed cumulatively with the prosecutor's comments during closing argument.
Staten's attempt to argue ineffective assistance of counsel as part of this court's consideration of cumulative error should not be allowed because the issue was not raised as an issue on appeal nor was it adequately briefed and argued. A point raised incidentally in a brief and not argued therein is deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013).
The final factor requires the appellate court to consider the strength of the evidence. This is not a case of he said/she said. The evidence against Staten was overwhelming. The State does an adequate job of pointing out the physical evidence supporting the conviction. Williamson suffered multiple, serious injuries as a result of the altercation; in contrast, Staten did not seek medical treatment after the conflict. In addition, several witnesses to the crime corroborate Williamson's version of events and refute Staten's claim that he acted in self-defense. The evidence against Staten was overwhelming. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. State v. Hilt, 299 Kan. 176, 322 P.3d 367 (2014).
In light of the overwhelming evidence supporting the conviction, it does not appear as if the errors—even when the court considers their cumulative effect—would have had any effect on the jury's verdict. Thus, cumulative error did not deprive Staten of his right to a fair trial.
Affirmed. ATCHESON, J., concurring.
I concur in the judgment affirming the conviction of Defendant Michael Staten for aggravated battery by a jury sitting in Wyandotte County District Court. But I write separately to discuss the grave problem with how the jurors were instructed—or, more accurately, not instructed—on self-defense. Although the jurors received an instruction on the test for a person's legal use of force to defend himself or herself, they were not told how to consider the evidence presented on self-defense or how the evidence would affect the State's proof of the elements of aggravated battery. The resulting void should be treated the same way as an instruction omitting an element of the charged offense, consistent with the standard recognized in State v. Richardson, 290 Kan. 176, 182–83, 224 P.3d 553 (2010). In this case, the omission ought to require a reversal of the conviction and a new trial for Staten. The Kansas Supreme Court has not considered the error in that light. Before Richardson, however, the court held this precise omission of an instruction on self-defense created no clear error. State v. Cooperwood, 282 Kan. 572, 580–82, 147 P.3d 125 (2006); State v. Crabtree, 248 Kan. 33, 40–41, 805 P.2d 1 (1991). I am obligated to apply that precedent, and under the usual standard for clearly erroneous jury instructions, Staten's conviction should be upheld. I, therefore, join in the result in this case.
The evidence at trial showed that Staten inflicted a horrific beating on the woman with whom he lived. Staten testified and offered a version of events the State concedes presented a colorable, if doubtful, claim for self-defense. The law, however, doesn't require much for a district court to instruct jurors on self-defense in a criminal case. K.S.A.2013 Supp. 21–5108(c) (instruction on any affirmative defense must be given if evidence “could allow a rational fact finder to reasonably conclude that the defense applies”). State v. Hill, 242 Kan. 68, Syl. ¶ 4, 744 P.2d 1228 (1987) (“The trial court must instruct the jury on self-defense if there is any evidence tending to establish self-defense even though the evidence may be slight....”). K.S.A. 21–5108(c) (instruction on any affirmative defense must be given if evidence “could allow a rational fact finder to reasonably conclude that the defense applies”). The jurors, then, must evaluate the self-defense evidence and determine if that evidence causes them to entertain a reasonable doubt about the defendant's guilt. State v. Johnson, 258 Kan. 61, 66, 899 P.2d 1050 (1995); see K.S.A.2013 Supp. 21–5108(c) (State must disprove affirmative defense beyond a reasonable doubt). I have no reason to look behind the State's concession, especially given those precepts.
The majority opinion includes the relevant jury instructions. But I repeat them here because they are crucial in demonstrating the legal error that infected the trial and the jury deliberations. The district court gave this jury instruction on when a person may lawfully use force in self-defense:
“Defendant claims his use of force was permitted as self-defense.
“Defendant is permitted to use force against another person when and to the extent that it appears to him and he reasonably believes such physical force is necessary to defend himself against the other person's imminent use of unlawful force. Reasonable belief requires both a belief by a defendant and the existence of facts that would persuade a reasonable person to that belief.”
The self-defense instruction mirrors PIK Crim. 4th 54.310.
The district court gave this jury instruction on the elements of aggravated battery:
“The defendant is charged with the crime of aggravated battery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally caused great bodily harm to another person; to wit: Yvonne Williamson; and
“2. That this act occurred on or about the 22nd day of July, 2011, in Wyandotte County, Kansas.”
The elements instruction mirrors PIK Crim. 4th 42.200.
And the district court also gave this jury instruction on the burden of proof and reasonable doubt:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.”
The burden of proof instruction mirrors PIK Crim. 4th 51.010.
The district court did not give any other jury instructions pertaining to self-defense. Staten's lawyer made no objection to those instructions and asked for no additional instructions on self-defense. Two material flaws in the pertinent instructions kept the jurors from considering the self-defense evidence consistent with Kansas law and favorably to Staten. As a result, self-defense became nothing more than legal flotsam adrift in the evidence and the instructions without any defined purpose.
First, the jurors had no plain guidance on whether they had to find that the self-defense evidence satisfied some threshold of reliability to be considered at all in countering the State's evidence. That is, the jurors reasonably could have assumed they had to conclude Staten probably acted in self-defense or more likely than not did so to consider the defense. Only then, would they decide if the self-defense evidence created a reasonable doubt in light of the State's case. They might even have logically inferred Staten had to establish self-defense beyond a reasonable doubt—a standard symmetrical to the one for the prosecution and its claims. But, of course, the law is quite otherwise.
In everyday life—the world apart from courtrooms and legal rules—symmetry generally is to be expected and commonly is presumed to be fair. Each football team gets to have 11 players on the field, and one person in a grocery store line should pay the same for a gallon of milk as the next person. But the law doesn't always work that way. See State v. Chavez, No. 108,955, 2014 WL 1795760, at *2 (Kan.App.2014) (unpublished opinion). The presumption of innocence, for example, creates asymmetry in criminal trials. If scrupulously applied, the presumption intentionally places the prosecution and the defense on different footings.
The reasonable doubt instruction didn't really solve the problem. It simply informed the jurors that they should treat Staten as being not guilty until the State proves otherwise. And the instruction said Staten has no obligation to prove himself not guilty, meaning he need not offer any explanation or defense. But the instruction did not speak to what the jurors should do if Staten undertook that obligation and actually offered evidence, as he did.
Second, and more importantly, the instructions failed to explain to the jurors how the self-defense evidence could require a not guilty verdict. There was no way Staten's lawyer might guide the jurors through the instructions in closing argument to show how the self-defense evidence could lead to a not guilty verdict.
The elements instruction informed the jurors that Staten should be found guilty if he intentionally caused great bodily harm to his companion. But a person acting in lawful self-defense commonly will do just that. Self-defense entails the intentional application of force to another person to halt or head-off a physical attack by that person. And the application of force often will result in great bodily harm. For example, a person set upon by hoodlums may draw a knife and stab his or her attackers. The person has acted intentionally and more likely than not will have inflicted great bodily harm if he or she stabs one or more of the assailants in the head or torso. So while the person's conduct amounts to lawful self-defense, it also satisfies that element of aggravated battery.
But self-defense absolves a person of criminal liability because the law recognizes the use of force in that circumstance to be justified and, thus, without blameworthiness—not because it, strictly speaking, negates a statutory element of aggravated battery. State v. Waller, 299 Kan. 707, 720–21, 328 P.3d 1111 (2014) (self-defense is based on justification or excuse for conduct and is applicable to crimes involving the use of force); see K.S.A. 21–5222(a) (“[a] person is justified in the use of force ... to defend such person ... against [an]other's imminent use of unlawful force”). That is, the person's intentional actions meet the statutory definition of the crime; those actions, however, have been undertaken for a purpose deemed to be permissible rather than punishable. But the concept of justification is nowhere to be found, let alone incorporated, in the jury instructions given in Staten's trial.
Considering how self-defense operates as defense rooted in justification and the statutory burden of proof for affirmative defenses, it logically should be presented to jurors in the elements instruction, assuming a defendant has crossed the slight threshold of producing evidence. In that circumstance, PIK Crim. 4th 54.310 should include an additional element phrased along these lines: “That the defendant acted without the legal justification of self-defense, as described in Instruction No. ––––,” referring to the instruction corresponding to the definition of self-defense in PIK Crim. 4th 52.200. The self-defense instruction ought to include a new second sentence stating: “Self-defense is a legal justification in the following circumstances: [leading into the definition contained in the second paragraph of the instruction].” That approach properly places the correct burden of proof on the State and captures the interrelationship between self-defense as a legal justification and the statutory elements of aggravated battery .
The codification of affirmative defenses in K.S.A.2013 Supp. 21–5108 hasn't changed the substantive law of self-defense in Kansas. In other words, the statute has simply placed the legislature's imprimatur on what had been Kansas common law. See Johnson, 258 Kan. at 66.
The authors of the pattern jury instructions provide a generic instruction on the treatment of affirmative defenses. See PIK Crim. 4th 51.050. Although that instruction may be legally sufficient, it isn't as pointed as it might be in explaining how self-defense evidence should be integrated with the State's obligation to prove a defendant guilty of a crime of violence, such as aggravated battery. In this case, of course, the district court provided no instruction guiding the jurors on that aspect of the self-defense evidence. The failure to do so is error.
In a self-defense case, PIK Crim. 4th 51.050 would state:
“The defendant raises self-defense as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant.”
Staten did not object to the omission of PIK Crim. 4th 51.050 or its equivalent. So we must evaluate the jury instructions for clear error. K.S.A. 22–3414(3) (absent party's timely objection to jury instruction, court may consider only “clearly erroneous” deficiency); State v. Briseno, 299 Kan. 877, Syl. ¶ 1, 326 P.3d 1074 (2014).
Because of the interwoven relationship between self-defense and what the State must prove to convict a defendant of aggravated battery, the error is a functional equivalent of the omission of an element or part of an element from the claims-to-beproved instruction. The failure to instruct jurors on all of the elements of a charged crime creates a constitutional error. Neder v. United States, 527 U.S. 1, 12, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (omission of element of charge offense violates Sixth Amendment right to jury trial). In Richardson, 290 Kan. at 182–83, the Kansas Supreme Court adopted the rigorous standard set out in Neder for excusing the error even without a trial objection from the defendant. The court engaged an especially rigorous review supplanting the usual clearly erroneous standard. This court recently summarized how the omitted-element issue has been treated:
“The omission of an element of a charged offense from an instruction compromises the defendant's right to trial by jury protected in the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. See Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Linn, 251 Kan. at 802. It, therefore, erodes a fundamental right. The failure to instruct a jury on an element of a criminal offense may amount to harmless error in some limited circumstances. The United States Supreme Court determined the omission could be treated that way if the element were ‘uncontested and supported by overwhelming evidence.’ Neder, 527 U.S. at 17. The Kansas Supreme Court adopted that standard in Richardson, 290 Kan. at 182–83.
“The test for harmlessness is twofold. Not only must the evidence bearing on the omitted element approach the irrefutable, a defendant effectively has to concede that component of the charged crime. Such a concession might be inferred from the absence of contrary evidence or explanation developed in challenging the government's case or offered as part of the defense case.” State v. Hargrove, 48 Kan.App.2d 522, 529–30, 293 P.3d 787 (2013).
The Richardson court explained the reason for requiring a more searching review: An appellate court cannot surmise how a jury would have evaluated disputed evidence on a missing element and to impose a determination on appellate review usurps that factfinding function in a way that approaches directing a verdict. 290 Kan. at 183. In a criminal case, a court may not commandeer the jurors' role as finders of fact. Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (citing United States v. Martin Linen Supply Co., 430 U.S. 564, 572–73, 97 S.Ct. 1349, 51 L.Ed.2d 642 [1977]; Sparfv. United States, 156 U.S. 51, 105–06, 15 S.Ct. 273, 39 L.Ed. 343 [1895] ). The error here is legally indistinguishable. We have no way of knowing how the jurors evaluated the self-defense evidence, since they were not informed in the instructions how to do so.
Applying those legal principles, the error in the jury instructions should be declared impermissibly destructive of Staten's constitutional rights. Staten vigorously asserted a self-defense claim. So, far from being uncontested, it was the centerpiece of his defense. The failure to give any direction to the jurors on how to consider that evidence effectively relieved the State of the obligation to show beyond a reasonable doubt that Staten did not act in self-defense—an obligation legally and factually inseparable from proving the elements of aggravated battery.
If those considerations were the end of the matter, I would find the instructions to be sufficiently prejudicial to Staten, consistent with Richardson, to have deprived him of a fair trial. I would, therefore, reverse Staten's conviction and remand the case for a new trial. But those considerations don't end the matter .
In cases decided before Richardson, the Kansas Supreme Court held the failure to instruct a jury consistent with PIK Crim. 4th 51.050 on the treatment of self-defense evidence should be reviewed using a traditional clearly erroneous test. Cooperwood, 282 Kan. at 580–82; Crabtree, 248 Kan. at 39. The court has recently restated the test. See State v. Mireles, 297 Kan. 339, Syl. ¶¶ 5–7, 301 P.3d 677 (2013); State v. Trujillo, 296 Kan. 625, 630–31, 294 P.3d 281 (2013); State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012). In Williams, the court phrased the test as “whether [the appellate court] is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. 506, Syl. ¶ 5. The party challenging the jury instruction bears the burden of so persuading the appellate court. 295 Kan. 506, Syl. ¶ 5. Applying that test requires the appellate court to assess the impact of the error against the strength of the State's case and the defendant's countervailing evidence, if any.
The majority presents an unpersuasive alternative argument that self-defense shouldn't be treated like an element of an offense because the statutory definition of a specific crime establishes the elements or claims the State must prove to convict. Contrary to that supposition, for example, a defendant may be convicted of a crime for aiding and abetting in its commission. See K.S.A.2013 Supp. 21–5210(a). A jury can be so instructed in the claims or elements instruction to reflect the State's theory of the case. See PIK Crim. 4th 52.140 Comment; State v. Burton, 35 Kan.App.2d 876, 880–81, 136 P.3d 945, rev. denied 282 Kan. 792 (2006); see, e.g., State v. Haberlein, 296 Kan. 195, 202–03, 290 P.3d 640 (2012) (identifying use of such elements instruction). But aiding and abetting is not a statutory element of any given offense. Rather, it is a principle of criminal liability common to the vast majority of offenses. Similarly, self-defense is a principal of criminal liability common to many crimes against persons. See K.S.A.2013 Supp. 21–5222(a). Self-defense, however, constricts criminal liability, while aiding and abetting expands it.
But, as Richardson notes, if an appellate court attempts to do so when the error itself prevented the jurors from fully considering the evidence as it bears on the discrete claims or elements the State must prove to convict, the court improperly takes on the role of factfinder. Accordingly, Richardson, rather than Cooperwood and Crabtree, provides the more appropriate analytical approach to this error.
The Cooperwood and Crabtree decisions also understate the impact of the error. In each case, the court reasoned that the introductory language from the general burden of proof instruction—“the State must prove the defendant guilty”—cured the omission of anything in the instructions specifically addressing the interplay of the self-defense evidence and the elements of the charged crime. Cooperwood, 282 Kan. at 581 (considering PIK Crim.3d 52.02); Crabtree, 248 Kan. at 39–40 (considering PIK Crim.2d 52.02). But the second paragraph of burden of proof instruction informs the jurors they are to find the defendant guilty if they have no reasonable doubt as to the claims listed in the elements instruction. As I have already discussed, those claims establishing aggravated battery are consistent with a legally justified claim of self-defense. So the general burden of proof instruction, without something more, actually directs jurors to convict a defendant regardless of self-defense evidence.
The burden of proof instructions in PIK Crim.2d 52.02 and PIK Crim.3d 52.02 are the same as PIK Crim. 4th 51.010 in all respects material here.
In this case, the prosecutor's closing argument accentuated the flaw in the jury instructions. Although acknowledging Staten's assertion of self-defense, the prosecutor emphasized that the State only had to prove the claims in the elements instruction for the jurors to return a guilty verdict. In the absence of some sort of instruction directly addressing consideration self-defense evidence, the prosecutor's argument improperly reduced Staten's defense to a spectral presence without a substantive form or material meaning.
I cannot ignore Cooperwood and Crabtree. They are directly on point, and under the required clearly erroneous test, as fashioned in Williams, I have to conclude Staten has not shown reversible error. Nonetheless, the instructional error more properly should be analyzed in keeping with Richardson, requiring a reversal and a new trial.