Opinion
No. 106,188.
2012-09-28
STATE of Kansas, Appellee, v. Robert L. TAYLOR, Appellant.
Appeal from Sedgwick District Court; Eric R. Yost and David J. Kaufman, Judges. Lydia Krebs, of Kansas Appellate Defender Office, for appellant, and Robert L. Taylor, appellant pro se. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric R. Yost and David J. Kaufman, Judges.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant, and Robert L. Taylor, appellant pro se. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL, J. and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
In this direct appeal of his aggravated robbery conviction, Robert L. Taylor seeks a new trial because his jury was instructed to consider the degree of certainty an eyewitness of the crime had. While it is true that the Kansas Supreme Court has ruled that such an instruction is erroneous, the record reveals that Taylor asked for the instruction that he now claims to be erroneous. We decline to overturn his conviction upon these grounds because, first, it is invited error; and, second, even if Taylor had not asked for this instruction to be given, reading it to the jury was harmless error under the facts of this case.
Also, Taylor alleges misconduct of the prosecutor when the prosecutor said in closing argument, “[E]nough is enough,” and then told the jury, “[M]ake this the last time that [Taylor] ever asks anybody where's my money.” When we examine the statements in context with the entire closing argument and rebuttal, we hold the comments were not outside the wide latitude afforded the prosecutor that the law grants a prosecutor when discussing the evidence.
Finally, we summarily address other issues at the end of this opinion.
Two men attack the victim.
Two men attacked and robbed Robin Axthell at the Linwood apartments in Wichita in early January 2008. Lonnie Evans had given Axthell a ride to the apartment complex and was waiting for Axthell in his car while she returned an inhaler to a friend. About halfway back to Evans' car, Axthell heard a noise behind her. When Axthell turned around, one of the attackers punched her in the face with a closed fist causing her to fall to the ground. That same attacker then asked Axthell where her money was and grabbed Axthell's purse. Both attackers continued hitting and kicking Axthell while she was on the ground. After the attackers dumped the contents of Axthell's purse and realized there was no money, they stopped attacking Axthell and left her and the purse behind. Axthell suffered bruising to her side and injuries to her face and neck, resulting in eight staples above her ear.
Just before Axthell ran to Evans' car screaming, Evans heard the voice of a man leaving the apartment complex that looked and sounded like a man he knew named “Don” and who matched Axthell's description of one of her attackers. According to Evans, Don had previously sold crack cocaine to him several times, been to his apartment, and had allegedly assaulted him on December 19, 2007, over $20 in drug money owed. Because of the assault, Evans received approximately 28–36 stitches in his mouth.
Evans subsequently gave Axthell's sister, Tammi Metcalf, a telephone number for Don, also known as “Booby” or “Loc Side.” Metcalf called the number and asked for Booby. A male voice answered the phone claiming to be Booby. During the conversation, Booby claimed that he beat up Axthell and it could happen again if Axthell did not pay the money she owed him for the drugs she had bought from him.
During the ensuing police investigation, Detective Phil Jacob entered the three known names of Axthell's attacker into the database, which indicated that both Booby and Loc Side were names associated with Taylor. Detective Jacob confirmed Taylor's physical description matched the description Axthell had given and prepared a photographic array. When shown the array, Axthell picked Taylor's photograph and stated she was “100 percent sure” he was her attacker. Detective Jacob showed the same array to Evans, who also identified Taylor's photograph as the person he knew as Don and had seen in the area of the attack on Axthell and was also responsible for the similar attack on him in December.
The State charged Taylor with one count of aggravated robbery in violation of K.S.A. 21–3427, a severity level 3 person felony, or, in the alternative, one count of aggravated battery in violation of K.S.A. 21–3414(a)(1)(A), a severity level 4 person felony. The State also charged Taylor with aggravated battery in violation of K.S.A. 21–3414(a)(1)(B) for the alleged incident with Evans in December 2007.
The State presented the testimony of Axthell, Evans, Metcalf, and Detective Jacob. The jury also considered testimony from Officer Michael Linnehan, who responded to the assault call from the hospital where Axthell was being treated. A jury found Taylor guilty of both aggravated robbery and aggravated battery for the attack on Axthell, but not guilty for the aggravated battery of Evans. Because the State had charged Taylor in the alternative, the trial court acquitted Taylor of the aggravated battery charge. Taylor then filed motions for a new trial and judgment of acquittal. The trial court subsequently denied both motions prior to sentencing.
At sentencing, the district court heard arguments in support of Taylor's motion for downward dispositional departure. The sentencing judge notified Taylor that because he did not know anything about the facts of the case he would only sentence Taylor on three unrelated convictions before him and the trial judge would sentence him for his aggravated robbery conviction. Taylor objected, and the district court agreed to proceed with sentencing on all four convictions. Based on Taylor's criminal history classification of A, the district court sentenced Taylor to a presumptive prison term of 233 months to be followed by 36 months' postrelease supervision.
The court used an eyewitness instruction no longer approved by the Supreme Court.
Taylor argues the trial court erred by giving PIK Crim.3d 52.20 because the jury instruction improperly included a factor asking the jury to consider Axthell's degree of certainty at the time she identified Taylor as one of her attackers.
Taylor acknowledges that his trial counsel did not object to the jury instruction for eyewitness identification. This court applies a clearly erroneous standard when reviewing a trial court's giving of a particular instruction and the defendant neither asked for such an instruction nor objected to its omission. See K.S.A. 22–3414(3); State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). An instruction is clearly erroneous only if this court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the error had not occurred. 288 Kan. at 451–52.
Another fundamental point of law is important here—invited error. A defendant may not invite error and then complain of the error on appeal. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
Taylor specifically asked for the addition of PIK Crim.3d 52.20 in Instruction No. 11. While the record does not contain a copy of the parties' proposed jury instructions, the trial court, during the instruction conference stated, “And then, Mr. Owens [Taylor's trial counsel], you requested instruction 11, do[es] either side object to it in its form?” Having requested PIK Crim.3d 52.20, Taylor may not claim that the giving of such an instruction was error. In State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011), the court held that “when the defendant's requested instruction is given to the jury, the defendant cannot complain the requested instruction was error on appeal.”
Going further, even if we consider the issue not to be invited error, we are not convinced it was reversible. While this case was pending our review, our Supreme Court held that it is error to give PIK Crim.3d 52.20 as it then read. See State v. Anderson, 294 Kan. 450, Syl. ¶¶ 2–3, 276 P.3d 200 (2012); State v. Mitchell, 294 Kan. 469, Syl. ¶¶ 4–6, 275 P.3d 905 (2012). Specifically, the court rejected a witness' degree of certainty as one of the seven factors to be included in the cautionary jury instruction for eyewitness identification and held that “the current language in PIK Crim.3d 52.20 encourages jurors to give more weight to identifications by a certain witness than an uncertain one and does nothing to inform the jury that certainty evidence may be unreliable.” Mitchell, 294 Kan. at 481.
“As worded, this factor prompts the jury to conclude that an eyewitness identification is more reliable when the witness expresses greater certainty, which placed undue weight on eyewitness certainty evidence. Therefore, we hold it is error to instruct the jury on the degree of certainty factor, and we discourage its future use.” Mitchell, 294 Kan. at 481.
Because the defendant in both Mitchell and Anderson objected to the instruction, the standard of review in those cases required reversal if the instruction could have reasonably misled the jury. See Mitchell, 294 Kan. 469, Syl. ¶¶ 4–6;Anderson, 294 Kan. 450, Syl. ¶¶ 2–3;State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009). Mitchell and Anderson set forth a two-part test to determine whether PIK Crim.3d 52.20 misled the jury to the point of requiring reversal:
“For an appellate court to determine whether the use of the degree of certainty factor in PIK Crim.3d 52.20 could have reasonably misled the jury, it must: (a) decide whether an expression of certainty by the eyewitness was communicated to the jury and, if so, (b) the nature and extent of the certainty expressed. If the court determines there was no degree of certainty conveyed by the eyewitness when making the identification, the jury could not have been misled by including this factor in the jury instructions. Mitchell, 294 Kan. 469, Syl. ¶ 5;Anderson, 294 Kan. 450, Syl. ¶ 3.
Mitchell then further states:
“If an appellate court determines an eyewitness expressed a degree of certainty when making an identification of the defendant, the court next must determine: (a) whether the identification was a critical aspect of the prosecution's case and (b) whether there is any serious question about the reliability of the witness' identification.” Mitchell, 294 Kan. 469, Syl. ¶ 6.
Here, certainty evidence was clearly submitted to the jury. Axthell indicated that when she identified Taylor in the photo lineup, she had written “This is [Taylor], the person who hit me and took my purse, 100 percent sure.” (Emphasis added.) Axthell then testified that she still agreed with her previous identification. Also, the prosecutor during closing argument reminded the jury that Axthell picked Taylor's photo in the lineup and said, “This is [Taylor], the person who did this to me, 100 percent sure.” Consequently, it was possible that the jury could have considered Axthell's expression of 100 percent certainty when determining whether her identification was reliable and accurate. See Mitchell, 294 Kan. 469, Syl. ¶¶ 4–6. Had Taylor objected, it would be appropriate to consider the instruction because Axthell's degree of identification certainty was communicated to the jury.
Axthell's identification was a critical aspect of the State's case because she was the only person who witnessed the crimes. She was the victim of the aggravated robbery and aggravated battery, and her identification of Taylor connected him to the crime. Evans' and Metcalf's testimony provides indirect corroboration for Axthell's identification of Taylor. Evans testified that just before Axthell ran to his car screaming, he had seen a silhouette leaving the apartment complex that looked and sounded like his drug dealer Don. While Taylor's aliases did not specifically include the name Don, Detective Jacob testified that Evans identified Taylor in a photo array as the person he saw in the area of the attack, i.e., Don. Metcalf testified that Booby admitted to her during a phone call that he had attacked Axthell.
Nothing in this record convinces us that there was a serious question about the reliability of Axthell's identification testimony. We therefore conclude that any error caused by giving this instruction was harmless.
We examine the claim of prosecutor misconduct.
Taylor claims the prosecutor during closing arguments appealed to the jury's sense of community safety by asking the jury to tell Taylor “enough is enough” and to “make this the last time that [Taylor] ever asks anybody where's my money.” Taylor contends this court should reverse his conviction because the nature of the evidence against him did not outweigh the gross and flagrant remarks made by the State, which demonstrated ill will towards him and were made outside the wide latitude afforded to prosecutors.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires an analysis in two steps. First, we decide whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, 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. McCaslin, 291 Kan. 697, 715, 245 P.3d 1030 (2011).
In the second step of the analysis, the appellate court considers three factors:
“ ‘(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; 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. 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 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 ... [did not affect] the results of the trial [in light of the entire record] ), have been met.’ [Citation omitted.]” McCaslin, 291 Kan. at 715–16.
See State v. Ward, 292 Kan. 541, Syl. ¶¶ 5–6, 7–8, 256 P.3d 801,cert. denied132 S.Ct. 1594(2012).
Generally, even though prosecutors must confine their comments to matters in evidence, a prosecutor has considerable latitude in discussing the evidence and drawing reasonable inferences based on the evidence. State v. Baker, 281 Kan. 997, Syl. ¶ 11, 135 P.3d 1098 (2006). A prosecutor, however, should not make statements intended to inflame the passions or prejudices of the jury or to divert the jury's attention from its duty to decide the case based on the evidence and the controlling law. State v. Magallanez, 290 Kan. 906, 915, 235 P.3d 460 (2010).
Actually, Taylor has isolated the prosecutor's final comment to the jury during the State's closing argument by removing the passage from the context of the prosecutor's preceding comment and the entire closing argument itself. A different meaning is conveyed when read in context. The prosecutor had just finished acknowledging inconsistencies in the witness' testimony and stated:
“And they stood in front of you and pointed this man out and said he's the one that did this. And the reason they did that was because enough was enough.
“So I'm asking you tell this man that enough is enough, make this the last time that Robert Taylor ever asks anybody where's my money and convict him on all the top [sic] counts.” (Emphasis added.)
Earlier during closing argument, the prosecutor discussed Metcalf's testimony and told the jury:
“Later, Tammi Metcalf ... calls a number, a phone number associated with the defendant, where sticking to the pattern, he again brags about this attack, says yeah, ‘I did it, I'll do it again if she doesn't have my money.”....
“And at that point everybody had had enough.” (Emphasis added.)
Then, while summarizing why the witnesses testified, the prosecutor argued:
“Every single one of them got up here and said I'm not a perfect person, I've had these problems, I've overcome them, I've had ups and downs, I've struggled with my addictions, I don't like law enforcement. And here they are in court, pointing out this man, saying enough is enough, we are sick of getting beat up for those petty drug debts that we may or may not owe the defendant.” (Emphasis added.)
The State continued to reiterate this theme during closing rebuttal, when the prosecutor argued:
“You know, it's not a complicated case, it is a bunch of former addicts who are tired of getting kicked around by their dealer....
....
“... They finally got clean, they finally said I am sick of this crap, ..., and I'm sick of getting kicked around ....
“Could it be that they've got enough of this and after being subject to their addiction and subject to their butt kickings by him, that they've— they just got enough of it and yesterday they finally came to court and could look him in the eye and say today is my turn to be in charge of my life and to say enough from you? ” (Emphasis added.)
The prosecutor's comments during closing argument are consistent with the testimony the jury considered. Metcalf testified that during the telephone conversation with Booby, he told her that Axthell “owes me a lot of money for drugs” and that “he knew where she lived at, he knew what kind of car she drove and that it could happen again if she didn't pay him.” Officer Linnehan, who witnessed Metcalf make the telephone call to Don, testified that Metcalf told him Don admitted to participating in the robbery and that Axthell “owed him money and that one way or another he was gonna get the money that was owed to him and that the event of the evening in question was just a warning.” Axthell testified that she knew “[Metcalf] had called the number and [Don] admitted to beating me up and would continue to beat me up.” Axthell also responded, “Yes,” when asked by the prosecutor if the man identified as Don during the phone call had “admitted to the attack and threatened to do it again.” When Evans was asked, “What was the event that caused you to tell the police that Mr. Taylor hit you?” Evans testified, “Because it wasn't going to end with me, I seen what he did with [Axthell].” Finally, Lafferty testified that he stopped buying crack cocaine from Don after having to take Evans to the hospital for allegedly being assaulted by Don and because “[Don] had called me up and threatened, telling me he knew—he knew where my folks lived, where my family was and that he was gonna get his money.”
Taylor cites State v. Finley, 273 Kan. 237, 42 P.3d 723 (2002), and State v. Kelley, 209 Kan. 699, 498 P.2d 87 (1972), as support and claims that the prosecutor here essentially asked the jury to convict Taylor to prevent him from committing future crimes against “other community members,” not on the evidence of the crime charged.
In Finley, our Supreme Court found the prosecutor's comment that ‘ “[w]e don't want people making meth in our communities' “ and the comment regarding the prevention of “ ‘people from making meth in our community’ “ were improper because the comments inferentially asked the jury to render its verdict to protect the community. The court, however, ruled that the prosecutor's comments were not reversible when taken in the context of the entire closing argument and the overwhelming evidence of guilt. 273 Kan. at 245. The Kelly court found a prosecutor's reference during closing argument to “the consequences of an acquittal on future lawlessness in the community” should not have been allowed but was not reversible error primarily because the defendant failed to raise a timely objection. 209 Kan. at 704–05. For Taylor there is no such procedural infirmity. See McCaslin, 291 Kan. at 706.
We agree that, like Finley, the prosecutor's comment, particularly the use of the word “anybody,” was improper in that such a comment when taken in isolation inferentially asks the jury to render a guilty verdict to protect the community. When this comment is considered in the context of the State's entire closing argument, however, it cannot be equated with the prosecutor's statements in Finley. The prosecutor's comment was not a plea to community safety or designed to instill fear in the minds of the jurors; it was a fair comment based upon the evidence presented at trial. Compare State v. Jordan, 250 Kan. 180, 193–97, 825 P.2d 157 (1992); with State v. Zamora, 247 Kan. 684, 689–91, 803 P.2d 568 (1990).
Because the State's comments were not outside the wide latitude afforded prosecutors when discussing the evidence, this court need not proceed to the second step of the analysis and determine whether the comment constituted plain error. See McCaslin, 291 Kan. at 715. Accordingly, the prosecutor did not commit misconduct during the closing arguments.
We see no Apprendi violation here.
Taylor claims that the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He maintains that the district court failed to have the State include his prior convictions in the complaint and prove those convictions before the jury beyond a reasonable doubt. Taylor, however, concedes that our Supreme Court has rejected this argument in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), but includes the issue to preserve it for federal review.
The use of criminal history to calculate a presumptive sentence does not violate due process as interpreted by Apprendi. McCaslin, 291 Kan. at 731–32. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Taylor's argument fails and has no merit based on McCaslin and Ivory.
We summarily deal with issues raised pro se by Taylor.
Taylor claims there was insufficient evidence to support his conviction for aggravated robbery because “the record of trial is void of any evidence that anything was taken from [Axthell].”
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. McCaslin, 291 Kan. at 710. In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
K.S.A. 21–3426 defines robbery as the “ taking of property from the person or presence of another by force or by threat of bodily harm to any person.” (Emphasis added.) The crime escalates to aggravated robbery when the perpetrator “inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21–3427.
Taylor reasons that there was no evidence sufficient to satisfy the “taking” element of robbery because Axthell's attackers did not actually keep her purse or take any of its contents. Taylor cites no authority to support his argument. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). More importantly, the element of asportation is not required to complete the crime of robbery. State v. Long, 234 Kan. 580, 585, 675 P.2d 832 (1984), disapproved in part on other grounds by State v. Keeler, 238 Kan. 356, 710 P.2d 1279 (1985); see State v. Plummer, 45 Kan.App.2d 700, 705, 251 P.3d 102 (2011), aff'd295 Kan. ––––, 283 P.3d 202 (2012).
Here, Taylor took possession of Axthell's purse by force and exercised dominion and control over the purse when its contents were searched. See Long, 234 Kan. at 585. Just because Taylor did not find anything worth taking from the purse and left the purse behind before fleeing is irrelevant. Taylor is not entitled to relief. Similarly, Taylor's second pro se issue that the district court erred in not instructing on the lesser included offense of attempted aggravated robbery also lacks merit for the same reason. Taylor bases his entire argument on the premise that the evidence supported an instruction on the lesser included crime of attempted aggravated robbery because Axthell's attackers set out to rob her for money and were unsuccessful after “roughing [Axthell] up and dumping the contents of her purse on the ground.” See Long, 234 Kan. at 585; the aggravated robbery was already completed, thus there was no evidence to support the crime of attempted aggravated robbery.
We affirm Taylor's conviction.