Opinion
No. 110,571.
2015-01-30
STATE of Kansas, Appellee, v. Quinton C. THOMAS, Appellant.
Appeal from Sedgwick District Court; William Sioux Woolley, Judge.Heather Cessna, of Kansas Appellate Defender Office, for appellant.Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; William Sioux Woolley, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Quinton C. Thomas appeals from his convictions of aggravated burglary, aggravated endangering a child, aggravated battery, and three counts of aggravated robbery. He claims that (1) the district court violated his right to be present when it granted continuances requested by defense counsel at hearings for which Thomas was not personally present; (2) the district court violated his right to counsel under the Sixth Amendment to the United States Constitution when it denied his motion to dismiss the charges because of speedy-trial-right violations without first appointing conflict-free counsel to represent him at a hearing on the motion; (3) the district court erred in rejecting two challenges Thomas made under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's striking two potential jurors; (4) K.S.A.2010 Supp. 21–3608a(a)(1), the statute under which the jury convicted Thomas of aggravated endangering a child, was unconstitutionally vague; (5) cumulative error denied Thomas a fair trial; (6) the district court violated Thomas' constitutional rights by considering his criminal history at sentencing; and (7) the district court violated Thomas' constitutional rights by sentencing him to the highest sentence in the sentencing grid box. We affirm in part and dismiss in part.
Factual and Procedural Background
On November 4, 2010, at approximately 8:15 p.m., Kaylee Egbert was at home with her 14–month–old son, D.L., cooking dinner when she heard a knock on the door. She looked through the peephole and saw a dark-skinned man; thinking it was her boyfriend, Dwight Lee, who had gone to the store, Egbert opened the door. A man Egbert did not know pushed her back into the apartment, pointing a gun at her head. He pushed her into the bedroom; D.L. came into the room and began screaming, and the man told Egbert to “shut the baby up.” At the man's direction, Egbert sat on the bed and held D.L. while the man went through her dresser drawers and jewelry box, looking for money and jewelry. At some point, a second man came into the apartment. The two men walked through the apartment, asking when Lee would be home and where his car keys were; the men ultimately took Lee's car keys.
When the men heard Lee unlocking the apartment's front door, they ran into the front room. Lee came inside and, as he closed the door behind him, was confronted by a man behind the door. Egbert heard a struggle and two gunshots; fearing for her life, she shut and locked the bedroom door and jumped out the second-story window, holding D.L. Meanwhile Lee had attempted to grab the man's gun and was shot twice, once in the right femur and once in the left side, leaving him seriously injured. Outside, Egbert had landed in a squatting position, spraining her ankle and bumping D.L.'s head on the ground. Egbert called the police from a neighbor's home. After they arrived, Egbert went downtown to speak with police and to describe both men. Although she could not identify the man who shot the gun that night, she later identified Thomas in a photo lineup as the man who had entered her apartment with a gun.
A little over 3 weeks later, on November 27, 2010, at approximately 12 or 12:30 p.m., Patricia Saunders was working at an Advance America, a title loan company. The door to the business remained locked, requiring Saunders to buzz in anyone entering. She did so for a man who asked what information was required to obtain a loan. After Saunders told him the requirements, the man said, “I don't mean to be rude,” pulled out a gun, pointed it at Saunders, and said, “Give me all your money.” The man yelled at her to open the door or he would shoot her, and when Saunders pushed the buzzer to unlock the door, a second man came inside and jumped over the counter. At the second man's direction, Saunders removed the cash drawer and placed it on the counter. The men took the money and left. Because Saunders had pulled the panic button during the robbery, the police later arrived, took Saunders' statement, and obtained surveillance video footage from the store's security camera.
Two days after that, on the morning of November 29, 2010, Amanda Chandler was working at a different Advance America location when it was robbed. Like the store at which Saunders worked, the front door of the Advance America where Chandler was working was always locked and employees had to unlock the door with a buzzer to let people in. That morning, Chandler buzzed a man into the business who pulled out a gun, sprinted across the lobby, and jumped over the front counter.
The man put his gun to Chandler's head, and Chandler began screaming. After telling her to “shut the fuck up,” the man told Chandler to give him the cash, so she opened her cash drawer. The man took the money, saw that the other drawer was empty, and asked about a safe. Chandler took him to the back, opened the safe while the man held a gun to her back, and gave the man a bank bag of money from the safe. As Chandler handed him the money, someone tried to open the locked front door. The man tucked the bank bag into his coat, put on sunglasses, and left, letting another person in as he was leaving. Chandler later estimated that the man took between $900 and $1300.
Chandler informed the arriving customer that she had just been robbed and then hit the panic button while the customer called the police. Police collected a video from a surveillance camera at the store and compared the man in that footage to a still photo from the robbery of the other Advance America location. Police believed that the same man committed both robberies. Copies of one of the still shots extracted from the video footage were sent to local law enforcement seeking assistance and received multiple responses identifying the man as Thomas. In addition, Saunders and Chandler later identified Thomas in a photo lineup as the man who robbed them. Chandler also identified him at trial.
On May 11, 2011, the State charged Thomas with one count of aggravated burglary, one count of aggravated endangering a child, and two counts of aggravated robbery. In January 2012, the State filed a motion for writ of habeas corpus ad prosequendum, seeking to retrieve Thomas from the United States Penitentiary in Colorado and bring him to Kansas for prosecution; the district court granted the motion and issued the writ. Thomas was arrested on March 28, 2012, and, shortly thereafter, was appointed counsel. On June 28, 2012, the State amended the information to add one count of aggravated battery and an additional count of aggravated robbery.
Because the numerous pretrial motions and proceedings are recounted as needed in the analysis sections below, they are not also detailed here. The jury trial began on March 25, 2013. The State presented testimony from Egbert, Lee, Saunders, Chandler, and various law enforcement personnel involved in the investigations. In addition, the State showed the jury the video footage from both Advance America locations and admitted into evidence the still photos extrapolated from the video footage. Thomas did not testify, and the defense called only one witness: a police officer who testified that he had investigated another individual for the robberies but dismissed him due to his physical appearance.
On March 29, 2013, the jury found Thomas guilty of aggravated burglary, aggravated endangering a child, aggravated battery, and three counts of aggravated robbery. In August 2013, the district court sentenced Thomas to 247 months' imprisonment for the primary offense of conviction, aggravated robbery; 61 months' imprisonment for each of the remaining two convictions of aggravated robbery; 34 months' imprisonment for the aggravated burglary; 13 months' imprisonment for the aggravated battery, and 7 months' imprisonment for the aggravated endangering a child. The sentences were to run consecutively, resulting in a total prison term of 423 months and a controlling term of 36 months' postrelease supervision; in addition, the district court ordered Thomas to register as a violent offender. Thomas timely appeals.
Did the District Court Commit Reversible Error by Violating Thomas' Constitutional and Statutory Rights to be Present When it Granted Continuances of his Trial?
First, Thomas contends that the district court violated his constitutional and statutory rights to be present when it considered and granted continuances of his trial in his absence. He argues that this violation was not harmless because the continuances ultimately violated his constitutional right to a speedy trial and caused him to lose viable defense witnesses and evidence. The State responds by first arguing that statutory speedy trial rights do not apply because Thomas was also being held in connection with charges in other cases. Regarding Thomas' constitutional argument, the State asserts that a continuance hearing is not a critical stage of a criminal proceeding that would implicate a defendant's constitutional right to be present at all critical stages. While the State appears to acknowledge that perhaps Thomas had a statutory right to be present at continuance hearings, the State contends that during other proceedings Thomas expressly informed the district court that he understood the continuances would delay his trial, so his actual presence at the hearings was irrelevant. Finally, the State argues that any error that occurred was harmless.
Thomas does not expressly identify where the appellate record demonstrates that he alleged to the district court a violation of his right to be present, although he cites his complaint at a hearing that his case had been continued and “nobody talked to me or nothing about that continuance.” Thomas also expressly complained in one of his pro se motions to dismiss counsel that counsel had repeatedly continued his case without Thomas knowing about it. In addition, Thomas asserted in his motion to dismiss the case for violation of his speedy trial rights that he “object[s] to all continuances requested by appointed counsel in or on behalf of defendant, as defendant was not present in person in the courtroom, nor was he given any prior notice of such request for continuances, nor his consent to such request for continuances by defense counsel.” Although the record on appeal shows that the district court did not expressly address or make any findings on Thomas' allegations that he did not consent to the continuances, this court and our Supreme Court have previously considered for the first time on appeal claims implicating the statutory and constitutional rights to be present for every critical stage of trial. See State v. Bell, 266 Kan. 896, 919–20, 975 P.2d 239, cert. denied 528 U.S. 905 (1999); State v. Womelsdorf, 47 Kan.App.2d 307, 320–21, 274 P.3d 662 (2012), rev. denied 297 Kan. 1256 (2013). Therefore, even without a ruling from the district court, this court may address the merits of Thomas' claim for the first time on appeal.
“Appellate arguments on a defendant's right to be present at every critical stage of his or her criminal trial raise an issue of law over which this court exercises unlimited review. [Citation omitted.]” State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014).
To better understand Thomas' arguments, additional information about the procedural history of this case is necessary. As stated above, the State charged Thomas in May 2011 and the district court appointed counsel for Thomas on March 30, 2012, shortly after his arrest. In early July 2012, Thomas filed a motion requesting different counsel. The district court held a hearing on the motion, considered Thomas' complaints, and informed him that appointment of new counsel was “probably going to delay things a little bit,” to which Thomas replied, “I understand that.” The district court granted the motion and appointed new counsel, M. Steven Wagle, on July 13, 2012.
According to the appearance docket, hearings occurred on August 20, 2012; September 17, 2012; and November 5, 2012, at which Thomas' jury trial were continued by the defense, but no record was taken. On November 19, 2012, Thomas filed a pro se motion to dismiss Wagle. Among other things, he summarily alleged that his speedy trial rights were being violated. The district court held a hearing on December 7, 2012, at which it considered the motion to dismiss Wagle. At that time, the trial was set for December 17, 2012, but Wagle stated that he would not be ready and would likely need another continuance; he also admitted that he had not yet spoken with Thomas about the fact that Wagle's schedule prevented him from being ready. Thomas stated, “I don't mind keeping my attorney. I just feel that we should have some type of communication because I'm—I been ready to go to trial.”
Thomas also stated:
“When it shows the defendant continued the case, it violated my speedy trial rights because it showed that I continued it when I wasn't—nobody talked to me or nothing about that continuance on that case, or, you know, it still violates what I filed to come back to court for.”
The district judge reminded Thomas that Wagle anticipated requesting another continuance. The judge concluded, “Let's assume for argument sake, Mr. Thomas, that he is able to adequately prepare. At that time, he would visit with you in advance of trial. Would that satisfy your concerns?” Thomas replied, “Yes, sir.”
According to the appearance docket, the defense again continued the trial at a hearing with no record taken; the trial was set for March 11, 2013, then for March 25, 2013. Prior to that date, Thomas filed another pro se motion to dismiss Wagle and a pro se motion to dismiss his case due to the violation of his speedy trial rights. In that motion to dismiss Wagle, Thomas specifically alleged that “counsel has continued defendant['s] trial over an[d] over without defendant knowing.” In addition, Thomas asserted he filed a motion to dismiss the case for violation of his speedy trial rights in which he objected to the continuances because he had not been present for the continuance hearings, had no notice of them, and had not consented to the requests.
The district court held a hearing on the motions on March 15, 2013. The district court denied the motion for new counsel, but he stated that “if there are any more continuances on the case, ... the assignment judge needs to be informed the defendant is objecting based upon the speedy trial.” Finally, on March 25, 2013, just prior to trial, the district court addressed Thomas' speedy trial complaints. After reciting the procedural history, the judge denied Thomas' motion, informing him: “So the point is this, sir: The continuances were requested by you or your defense counsel, and some of them as a result of having new counsel.” As Thomas points out, the district court did not address Thomas' allegations that he did not know about or consent to the continuances.
Regarding a criminal defendant's right to be present, the United States Supreme Court has instructed:
“The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant ... the ‘right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.’ [Citation omitted.]” Tennessee v. Lane, 541 U.S. 509, 523, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004).
See also Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (“Our cases recognize that the right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant.”).
In addition, K.S.A. 22–3405(1) states: “The defendant in a felony case shall be present ... at every stage of the trial ... except as otherwise provided by law.” Our Supreme Court has interpreted this in tandem with the constitutional right to be present at every critical stage. See State v. Herbel, 296 Kan. 1101, Syl. ¶ 1, 299 P.3d 292 (2013). Thomas also points out, see K .S.A.2013 Supp. 22–3208(7), that a “defendant shall be informed of the defendant's right to be personally present in the courtroom” for “[a]ny hearing conducted by the court to determine the merits of any motion.”
Regarding his rights under the Sixth Amendment and K.S.A. 22–3405(1), Thomas fails to explain how a hearing on a continuance is a critical stage of the trial such that his absence would implicate his constitutional or statutory rights to be present at all critical stages of the proceedings. As the State notes, there does not appear to be a United States Supreme Court case addressing whether a continuance hearing in a criminal trial constitutes a critical stage that implicates the right to be present, nor has a Kansas Supreme Court case on point been found. Thomas' failure to adequately brief why a continuance hearing constitutes a critical stage of the proceedings results in waiver and abandonment of that argument. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (stating that an issue not briefed by the appellant is deemed waived and abandoned). Nevertheless, this matter can be decided without determining whether a motion for continuance is a critical stage of a proceeding.
Prejudice from Violation of Statutory Right to be Present
In determining whether there was a violation of the statutory right to be present, this court should apply the nonconstitutional harmless error standard, under which the party benefitting from the error must persuade the court that in light of the entire record there is no reasonable probability that the error affected the trial's outcome. See State v. McCullough, 293 Kan. 970, 983, 270 P.3d 1142 (2012). It is hard to imagine how a defendant's absence from a continuance hearing would affect the ultimate outcome of the trial. Thomas argues, however, that the error was not harmless because if his right to be present had not been violated, he would have been at the hearings, objecting to the continuances. He additionally contends that the continuances resulted in the violation of his rights to a speedy trial. Thus, Thomas argues, because the violation of his right to be present led to the violation of his right to a speedy trial, it cannot be harmless. In response, the State contends that Thomas' speedy trial rights were not violated in any event, so any violation of his right to be present at the continuance hearings was harmless.
Statutory Right to Speedy Trial
This court may easily dispose of Thomas' argument that the continuances violated his statutory right to a speedy trial. “Whether the State violated a defendant's statutory right to a speedy trial is a question of law subject to de novo review. [Citations omitted.]” State v. Sievers, 299 Kan. 305, 307, 323 P.3d 170 (2014). During these proceedings, K.S.A. 22–3402(1) provided an incarcerated defendant's speedy trial rights and, by its plain language, applied to “any person charged with a crime and held in jail solely by reason thereof.” (Emphasis added.) As the State points out, K.S.A. 22–3402 does not apply to Thomas because he was not in custody solely on the charges in this case.
Thomas concedes as much in his brief. He complains that the district court believed “that because Mr. Thomas had been in custody on other charges that he had no speedy trial claim,” which “may be true for a statutory speedy trial analysis.” Additionally, at a hearing in December 2012, Thomas and his attorney informed the district court that Thomas was still serving a federal sentence and was awaiting sentencing in a separate Kansas case. Because the plain language of the statute makes it applicable only to a person in jail solely for the crime for which he or she is not brought to trial within the specified time period, it does not apply to Thomas. See State v. Angelo, 287 Kan. 262, 268–69, 197 P.3d 337 (2008) (holding that K.S.A. 22–3402 was inapplicable to defendant who was in a Missouri prison because of criminal charges there when he was transferred to a Kansas jail to face murder charges in Kansas).
Constitutional Right to a Speedy Trial
Thomas also alleges that the continuances violated his constitutional right to a speedy trial, citing both the Fifth and Sixth Amendments to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. The State responds that Thomas' reliance on the Fifth Amendment is misplaced and that his remaining constitutional rights to a speedy trial were not violated. “Whether a defendant's constitutional right to a speedy trial has been violated is a question of law over which this court has unlimited review. [Citation omitted.]” State v. Hayden, 281 Kan. 112, 126–27, 130 P.3d 24 (2006).
Regarding the Fifth Amendment, Thomas asserts that the Kansas Supreme Court has recognized a due process right to a speedy trial stemming from the Fifth Amendment. As the State points out, however, the cases to which Thomas cite address the Fifth Amendment due process right to timely filing of formal charges, not to a speedy trial. See United States v. Marion, 404 U.S. 307, 313–26, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (discussing preindictment delay, not time between accusation and trial); State v. Royal, 217 Kan. 197, 201–02, 535 P.2d 413 (1975) (same); State v. Clopton, 30 Kan.App.2d 1208, 1210–12, 57 P.3d 21 (2002) (addressing Fifth Amendment due process implication in “inordinate preaccusation delay”). Because Thomas does not challenge the length of time between the crimes and the State filing formal charges against him, the Fifth Amendment has no application here. The Sixth Amendment and § 10 of the Kansas Constitution Bill of Rights, however, are applicable.
“The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and § 10 of the Kansas Constitution Bill of Rights guarantee an accused the right to a speedy trial.... Where the statutory right to speedy trial does not apply, an accused is still guaranteed the right to a speedy trial under both the United States and Kansas Constitutions. [Citation omitted.]
“The United States Supreme Court set forth a balancing test for determining whether an accused has been denied his or her constitutional right to a speedy trial in Barker v. Wingo, 407 U .S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972). Kansas adopted this test in State v. Otero, 210 Kan. 530, 532–36, 502 P.2d 763 (1972). The following factors for making the determination were set forth in Barker: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant. [Citations omitted.]
“The length of the delay between arrest and trial is key to the analysis. Until the delay rises to the level of being presumptively prejudicial, it is not necessary to inquire into the other Barker factors. [Citation omitted.]” State v. Davis, 277 Kan. 309, 334, 85 P.3d 1164(2004).
Both Thomas and the State recognize the Barker factors as controlling the analysis of a defendant's Sixth Amendment right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Thomas contends that Kansas courts “have been very clear and consistent” that a defendant's constitutional speedy trial right attaches upon arrest; therefore, he argues that the time at issue here is from arrest to trial, which was approximately 1 year. On the other hand, the State argues that only the 77 days implicated in the continuances Thomas specifically challenges in this issue should be considered.
“ ‘The constitutional protection of a speedy trial attaches when one becomes accused and the criminal prosecution begins, usually by either an indictment, an information, or an arrest, whichever first occurs.’ [Citations omitted.]” State v. Rivera, 277 Kan. 109, 112, 83 P.3d 169 (2004); see also Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975) (“ ‘[I]t is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.’ ”). The balancing test set forth in Barker considers the period of time from attachment of the protection until trial. See Davis, 277 Kan. at 334; State v. Gill, 48 Kan.App.2d 102, 112–13, 283 P.3d 236 (2012), rev. denied 298 Kan. –––– (February 18, 2014). Thus, because the State initially filed charges against Thomas on May 11, 2011, the constitutional right to a speedy trial attached at that point, not upon his arrest on March 28, 2012. Thomas' trial began on March 25, 2013.
Length of the Delay
The first consideration under Barker is whether the length of the delay is presumptively prejudicial; if it is not, further consideration of the Barker factors is unnecessary. Davis, 277 Kan. at 334. The Kansas Supreme Court has resisted setting rigid rules to establish what length of time is presumptively prejudicial, instead instructing Kansas courts to examine the delay in the context of each particular case. See State v. Weaver, 276 Kan. 504, 509, 511, 78 P.3d 397 (2003) (“ ‘[T]he delay in each case is analyzed according to its particular circumstances.’ [Citation omitted.]”. In addition, the “tolerable delay for an ordinary crime is less than for a complex one. [Citation omitted.]”).
Thomas argues that the delay here was presumptively prejudicial because this case involved straightforward crimes in which the main issue was identification of the perpetrator. He cites Weaver, 276 Kan. at 510–11, in which the Kansas Supreme Court found presumptively prejudicial a 299–day delay in trying a “simple and straightforward” crime in which the State's evidence against the defendant “was presented in 64 transcript pages of testimony.” Thomas also directs this court's attention to State v. Waldrup, 46 Kan.App.2d 656, 680, 263 P.3d 867 (2011), rev. denied 296 Kan. 1135 (2013), in which this court held presumptively prejudicial a 23–month delay in a case about a sale of cocaine to which “the State had multiple eyewitnesses to the drug buys, including an undercover deputy sheriff; the State had multiple audio recordings of the transactions; and the State had the crack cocaine purchased from Waldrup.” The State, on the other hand, cites numerous cases in which Kansas appellate courts have found delays of over 1 year not presumptively prejudicial, although the State does not otherwise explain how the circumstances of those delays make the holdings therein applicable here.
Although Thomas was charged with one count of aggravated burglary, one count of aggravated endangering a child, one count of aggravated battery, and three counts of aggravated robbery, the charges were based upon three events: the events at Egbert's apartment and the robberies at the two Advance America stores. These were serious crimes but were not complex ones requiring complicated preparation for prosecution. The State had multiple eyewitnesses to the crimes who had identified Thomas from photo lineups, video footage of the robberies at the stores, and photographs extracted from the video footage from which multiple other law enforcement officers identified Thomas as the perpetrator. Considering these circumstances, the approximately 22 months that elapsed here between charging and trial were presumptively prejudicial and warrant consideration of the other Barker factors.
Reason for the Delay
The second consideration under Barker is the reason for the delay. As the Barker court explained:
“[D]ifferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” 407 U.S. at 531.
It is clear from the record on appeal that from May 11, 2011, when the State filed charges against Thomas, until March 28, 2012, Thomas was incarcerated in a United States Penitentiary in Colorado. Additionally, some of the remaining delay resulted from the appointment of multiple substitute counsel. It is equally clear that the district court specifically informed Thomas that changing counsel would cause a delay, and he acquiesced. The State is also correct in contending that there is no indication that the continuances occurred because the State was deliberately attempting to delay the trial in order to hamper the defense or because of any another reason that should weigh against the State. Taking into account the complications from Thomas' incarceration and multiple appointments of counsel with the attendant delays resulting from such multiple appointments, the critical period of delay is reduced to 77 days. During this period, Thomas complained about his attorney and his speedy trial rights. The district court judge discussed the matter with Thomas, and he, again, acquiesced to the delay.
Thomas' Assertion of Rights
The third consideration under Barker is whether Thomas asserted his right to a speedy trial. 407 U.S. at 531. Both parties here admit that Thomas asserted his right. Thomas asserted violation of his speedy trial rights in his pro se motion to dismiss Stephen House as counsel, his first pro se motion to dismiss Wagle as counsel, his second pro se motion to dismiss Wagle as counsel, and his pro se motion to dismiss the case for violation of his constitutional right to a speedy trial.
Prejudice
The fourth consideration under Barker is the prejudice to the defendant. 407 U.S. at 530, 532. The Barker Court specifically stated:
“Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” 407 U.S. at 532.
Thomas asserts that he suffered “significant pretrial incarceration due to these continuances.” He contends without further explanation that the delay caused him to “lose defense witnesses and evidence,” and he claims that the delay “resulted in a breakdown in communication and general mistrust of his counsel.” Thomas suffered no pretrial incarceration solely due to this delay. He was in custody on other cases. He would have been incarcerated regardless. Thomas does not allege that the delay caused him anxiety and concern. Thomas does not explain his general claim that the delay impaired his defense. There is no evidence that he lost defense witnesses or evidence.
None of the four Barker factors is “a necessary or sufficient condition to the finding of a deprivation of the right of a speedy trial”; they are meant to be considered together along with other relevant circumstances. See 407 U.S. at 533. There is minimal prejudice, if any, to Thomas because of the delays. Thomas' claim that his constitutional speedy trial right was violated fails.
Thomas' claim that his absence from the continuance hearings requires reversal only succeeds if this court is not persuaded in light of the entire record that there is no reasonable probability that Thomas' absence affected the trial's outcome. Thomas' argument is that his absence, in violation of his right to be present, resulted in the district court granting the continuances which violated his right to a speedy trial. The implied argument, although tortured, is that a violation of the constitutional speedy trial right results in a dismissal, which is different than the verdict of guilty which occurred here. As shown above, however, Thomas' constitutional right to a speedy trial was not violated and, therefore, there is no reasonable probability that the continuances affected the outcome of the case. Accordingly, Thomas' claim fails.
Did the District Court Err by Denying Thomas' Motion to Dismiss on Speedy Trial Grounds Without First Appointing Different Counsel to Represent Thomas on the Motion?
In his second issue, Thomas asserts a confusing mix of ineffective assistance of counsel claims and claims that the district court violated his right to have conflict-free counsel. The State responds by framing the issue as whether the district court erred by denying Thomas' motions to appoint new counsel and arguing that the district court did not err. The substance of Thomas' argument on this issue seems to be that (a) he had a Sixth Amendment right to counsel at the hearings on his motions for new counsel and to dismiss the charges on speedy trial grounds, (b) his counsel had a conflict of interest that adversely affected his performance at the March 2013 pretrial hearings and, as a result, (c) the district court committed reversible error by not appointing conflict-free counsel to represent him.
Initially, the State argues that Thomas has failed to make the necessary showing that the hearings on his motions for new counsel and to dismiss on speedy trial grounds are critical stages in order to show that he was entitled to conflict-free counsel at the hearings. The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall ... have the [a]ssistance of [c]ounsel for his defence.” The United States Supreme Court has held that this provision “requires effective assistance of counsel at critical stages of a criminal proceeding.... The constitutional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel's advice,” Lafler v. Cooper, 566 U.S. ––––, ––––, 132 S.Ct. 1376, 1385, 182 L.Ed.2d 398 (2012).
Included in this right to effective counsel is the right to conflict-free counsel. State v. Prado, 299 Kan. 1251, 1256, 329 P.3d 473 (2014). Under prior Kansas caselaw, Thomas must demonstrate that the hearings at issue were critical stages of the proceedings in order to show his entitlement to counsel. See State v. Sharkey, 299 Kan. 87, 92–96, 322 P.3d 325 (2014) (considering whether hearing on motions was a critical stage of the proceedings as threshold question to whether the defendant had a right to assistance of conflict-free counsel under the Sixth Amendment); State v. Donaldson, No. 109,671, 2014 WL 4080074, at *4–5 (Kan.App.2014) (unpublished opinion) (rejecting argument that the district court violated defendant's Sixth Amendment right by not appointing a conflict-free attorney to argue his pro se motion for new counsel because it was not a critical stage), petition for rev. filed September 15, 2014; State v. Hampton, No. 90,144, 2004 WL 2659039, at *2–3 (Kan.App.2004) (unpublished opinion) (defendant did not establish his hearings involved critical stage of proceeding or that he was effectively denied counsel).
Thomas argues that the Sixth Amendment right to counsel applies at all critical stages of criminal proceedings and asserts that “[a] motion arguing for the dismissal of charges based on speedy trial grounds is a ‘critical stage’ of the proceedings at which the right to counsel applies.” For support, however, he cites to two cases only, both of which addressed hearings on posttrial motions and neither of which involved a pretrial pro se motion for dismissal on speedy trial grounds. See State v. Andrews, 228 Kan. 368, Syl. ¶ 3, 614 P.2d 447 (1980) (finding statutory entitlement to counsel at a hearing on posttrial motion for new trial); State v. Toney, 39 Kan.App.2d 1036, 1040, 187 P.3d 138 (2008) (recognizing right to conflict-free counsel at hearing on motion to withdraw plea). Thomas makes no further effort to explain how a hearing on a motion for new counsel or for dismissal of charges on speedy trial grounds is a critical stage that invokes the Sixth Amendment right to counsel.
Thomas has effectively waived and abandoned the argument that the hearings on these motions were critical stages of the proceedings. Since that is a threshold point on Sixth Amendment right to counsel arguments, Thomas' issue fails. See State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013) (stating that a point raised incidentally in a brief and not argued therein is abandoned); State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (stating that an issue the appellant fails to brief is deemed waived and abandoned); State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013) (stating that the failure to support a point with pertinent authority or show why it is sound despite a lack of such authority is akin to failing to brief the issue).
Thomas also cites K.S.A. 22–4503, which provides that a felony defendant “is entitled to have the assistance of counsel at every stage of the proceedings against such defendant,” which is seemingly broader than the requirements of the Sixth Amendment. (Emphasis added.) Our Supreme Court recently and clearly expressed its doubt that the legislature intended to provide greater protection for the right to assistance of counsel through this statute than the protection the Sixth Amendment provides. See State v. Carr, 300 Kan. 1, 233–34, 331 P.3d 544 (2014) (also finding that a jury view “did not qualify as a stage of the proceeding requiring counsel's presence under K.S.A 22–4503”). Because Thomas makes no argument specifically regarding K.S.A. 22–4503, his brief citation of the statute is unsupported by pertinent detail and, as a result, this court declines to address the remaining aspects of Thomas's claim.
Even if it is assumed that the hearings Thomas complains of are critical stages to a proceeding, Thomas' claims must fail. In making this determination, additional facts are necessary.
At the inception of the case, Brad Sylvester was initially appointed to represent Thomas. Shortly after Thomas' arrest in May 2012, however, the district court appointed Casey Cotton to represent Thomas. Cotton had a conflict, so on June 6, 2012, the district court appointed Steve House. One month later, Thomas filed a pro se motion to dismiss House; at a hearing, House agreed that there was a potential conflict due to his representation of a different client, so the district court appointed Wagle.
On November 19, 2012, Thomas filed a pro se motion to dismiss Wagle as counsel. He claimed that Wagle had denied him the opportunity to review evidence pertaining to his case, Thomas had repeatedly tried to contact Wagle to no avail, there was “no working relationship” since Thomas did not trust Wagle, Thomas believed Wagle did not have his best interests at heart, and Thomas' speedy trial rights were being violated. The district court held a hearing on the motion on December 7, 2012; when asked, Wagle said that he was not prepared for the trial date of December 17, 2012, and that he anticipated requesting another continuance. Wagle also explained that his lack of preparation was not because he did not care about Thomas but because he had many cases to work on. Wagle confirmed that he was giving Thomas his “best professional efforts as a zealous advocate.”
The district judge explained to Thomas that any attorney representing him would also have other cases to work on. After Wagle confirmed that he anticipated being ready by the next trial date if the trial was continued from December, Thomas stated, “I don't mind keeping my attorney. I just feel that we should have some type of communication because I'm—I been ready to go to trial.” He again alleged that his speedy trial rights had been violated, but the district judge denied the speedy trial motion, reiterated that Wagle anticipated asking for one more continuance but being prepared by the next trial setting, and asked Thomas if that would “satisfy [his] concerns.” Thomas replied that it would, so the district court also denied Thomas' motion for new counsel.
On March 6, 2013, Thomas filed a pro se motion to dismiss Wagle, reasserting the complaints from the November 2012 motion and expanding on his speedy trial complaint, stating that Wagle had “continued defendant['s] trial over an[d] over again without defendant knowing.” The same day, Thomas filed a pro se motion to dismiss the charges on speedy trial grounds. In that motion, Thomas objected to the continuances Wagle had requested, claiming that Thomas had not been present for hearings on those continuances and did not have any prior notice of them. Thomas summarily asserted prejudice from the delay in the loss of witnesses and evidence in his favor, to the extent that he could no longer receive a fair trial.
The district court held a hearing on March 15, 2013, at which the district judge explained that Thomas needed to show justifiable dissatisfaction in order to receive new appointed counsel. Thomas explained to the judge that he felt as though he was not aware of all of the evidence available in the case, that he did not feel like he saw Wagle or spoke with him enough, and that Wagle would not accept his phone calls or respond to written communication. The judge allowed Wagle to respond, and he asserted that he had given Thomas “every piece of discovery I've gotten” and had provided Thomas with a preliminary hearing transcript at his own expense. Wagle also claimed that Thomas' complaints about the trial being postponed were groundless because the March 25 date had been set in January with Thomas' approval.
When Thomas disagreed, stating that the trial had been set for March 11, 2013, and then continued without his knowledge, Wagle reasserted that the trial had not been continued. The district court consulted the record, which showed that on December 17, 2012, the trial was set for March 11, 2013, and on March 11 the trial had been continued to March 25, 2013. Wagle disputed the record, saying that he had not requested a continuance on March 11.
The district judge informed Thomas that if he appointed new counsel, Thomas faced waiting even longer for trial, and Thomas replied that he was okay with waiting. He felt that he was more prepared for trial than Wagle was and that Wagle was not “really fighting for [him].” The district judge denied Thomas' motion, stating, “I don't think there is a basis to appoint a new attorney in the case.... I'll direct Mr. Wagle and the District Attorney, if there are any more continuances on the case, that the assignment judge needs to be informed the defendant is objecting based upon the speedy trial.” The district judge did not address the merits of Thomas' motion for dismissal on speedy trial grounds.
On March 25, 2013, prior to trial, the trial judge—a different judge than the one who had presided over the March 15 hearing—noted that the record contained no result on Thomas' motion to dismiss on speedy trial grounds. Wagle asserted that the judge at the March 15 hearing had ruled on the motion, but the trial judge stated that he had spoken with that judge, who had no independent recollection of ruling on it. Because the State had no record of a final ruling on the motion either, the parties agreed to argue it again. The following then occurred:
“MR. WAGLE: And I would state that's a pro se motion, so maybe Mr. Thomas wants to argue it.
“THE COURT: Well, Mr. Thomas, you filed the motion, do you want Mr. Wagle to argue this for you or do you want to argue it yourself?
“THE DEFENDANT: I'm sorry, Your Honor, I—I filed the pro se motion prior to me filing to dismiss my counsel, but I haven't even went over nothing with my attorney, so I don't even know if he would know how to argue it, and I didn't bring it with me today.
“MR. WAGLE: I've got a copy if he wants to look at it, Your Honor.
“THE DEFENDANT: I just—I just—we ain't sat down and talked about nothing, so I'm lost for
“THE COURT: All right. What we'll do is let's go ahead and talk about the other motions that are pending, and I'll give you some time to talk to him and we'll start up again here in—it shouldn't take that long to do. But, Mr. Thomas, do you agree or disagree that it was argued to Judge Kisner 10 days ago?
“THE DEFENDANT: It wasn't. I disagree with that. I remember exactly what Mr. Kisner told me. He brought up the motion to dismiss counsel, we talked about that. I asked him about the motion that I had filed due to that case, and he was like, well, we wasn't there on that matter, we was there on that case. But he did have—I did have it then and I was able to present it to him and show him that, but he didn't want to talk about that. He said we needed to talk as—our problem was we needed to talk as counsel and client.
“MR. WAGLE: Judge, I just want to state that I was there and Mr. Thomas was there, no one else in this room was. But Mr. Thomas is misstating the record. I'd also like the record to reflect that we have been speaking in the jail cell about his case and about his defenses.”
After addressing several other motions, the district court recessed so Thomas and Wagle could talk about Thomas' motion to dismiss on speedy trial grounds. When the trial reconvened, the following occurred:
“MR. WAGLE: ... I have gone over this motion with Mr. Thomas. I've told him that I thought it was meritless, but if he wanted to he could argue it. He's asked me to argue it. I told him that I would only ask the Court to read it. At that point, I don't think I have anything else to say.
“THE COURT: All right.
“MR. WAGLE: You can take it under advisement after the Court's read it, that would be our request.
“THE COURT: I've read the motion. I've gone over it a couple of times, and I've tried to find the case that he cited. And so I'm taking the motion very seriously, as I take every motion that's filed in front of me very seriously. Mr. Thomas, this is the way it works is the Code of Professional Conduct for attorneys does not allow an attorney to argue motions if they don't believe they have merit. To put it in laymen's terms, our code of ethics doesn't allow attorneys to argue BS. And so I'm not saying that your motion is BS, I'm just saying that Mr. Wagle is telling me he doesn't believe that he can ethically argue your motion. If you want to make a statement on it, you may; or if you want to just rely on me to read it and reach a ruling, we can do it that way too. But if you want to argue a motion, you do have the ability to argue it if you want to.
“THE DEFENDANT: Yes, sir.
“THE COURT: Would you like to argue the motion?
“THE DEFENDANT: No, sir. I'd rather you read it and take it into consideration.”
The district court then denied Thomas' motion. Because Thomas is not contesting on appeal the denial of the motion, only the district court's failure to appoint different counsel, the reasons for denial are not repeated here.
In his argument on appeal, Thomas argues that Wagle having to defend his performance against Thomas' allegations of ineffective assistance at the March 15 hearing created a conflict, as did Thomas' motion to dismiss on speedy trial grounds because that motion alleged that the delays were because Wagle had improperly requested trial continuances. Thomas further contends that this conflict “was complete” when, at the March 25 proceedings, Wagle informed the district court explicitly that Thomas' motion to dismiss was meritless. By advocating against Thomas' interests on the motion, Thomas argues, Wagle completely abandoned his role as Thomas' representative and undermined any possibility that the motions would succeed. Thomas contends that because Wagle's conflict of interest adversely affected his performance on the motions, prejudice is presumed and this court must reverse and remand for appointment of conflict-free counsel and reconsideration of the motions for new counsel and to dismiss on speedy trial grounds.
The State, on the other hand, argues that even if there was a conflict apparent to the district court, the court's obligation was to appropriately inquire into the conflict, which the State contends the district court did at every opportunity. Although it does not explicitly say so, the implied conclusion of the State's argument is that the district court's inquiry properly showed that there was no need to appoint new counsel and so the district court did not err in not appointing new counsel.
The parties do not agree upon the applicable standard of review. The State, in accordance with its focus on the propriety of the district court's denial of the motion for new counsel, advocates for an abuse of discretion standard of review. See State v. Bogguess, 293 Kan. 743, 753, 268 P.3d 481 (2012) (“We review a district court's refusal to appoint new counsel under an abuse of discretion standard. [Citation omitted.]”). Thomas, on the other hand, argues for de novo review, asserting that it is appropriate when this court considers claims based upon ineffective assistance of counsel, citing State v. Mathis, 281 Kan. 99, 110, 130 P.3d 14 (2006). Mathis did state that such claims were subject to de novo review, but more recently our Supreme Court has held that claims of ineffective assistance of counsel present mixed questions of fact and law, and this requires a mixed standard of review in which appellate courts review factual findings for support from substantial competent evidence and legal conclusions de novo. See State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014).
Whether this court reviews de novo or for an abuse of discretion, however, is not critical because “the district court necessarily abuses its discretion when it makes an error of law and the exclusion impacts [a defendant's] constitutional rights. [Citation omitted.]” State v. McMillan, 44 Kan.App.2d 913, 928, 242 P.3d 203 (2010), rev. denied 291 Kan. 915 (2011). Therefore, if the district court denied Thomas his constitutional right to effective assistance of counsel by improperly failing to appoint conflict-free counsel for his motions, it erred, whether reviewed de novo or for an abuse of discretion. See State v. Mitchell, No. 108,372, 2013 WL 4730227, at *3–4 (Kan.App.2013) (unpublished opinion).
While numerous cases are cited by both parties, the present case is more akin to the cases of State v. McGee, 280 Kan. 890, 126 P .3d 1110 (2006), and State v. Adams, No. 109,673, 2014 WL 2402185, at *2–3 (Kan. App 2014) (unpublished opinion), petition for rev. filed June 23, 2014.
Thomas acknowledges that our Supreme Court has previously rejected an appellant's claim that a conflict of interest arose at a hearing on a pro se motion for new counsel when the defense attorney contradicted the defendant's factual assertions. See McGee, 280 Kan. at 894–95. In that case, Ricky McGee filed a pretrial motion for new counsel, arguing at the preliminary hearing that his attorney showed “ ‘a great lack of concern for this case’ “ and had only talked to McGee once in 4 months. 280 Kan. at 894. McGee asserted that he could not envision his attorney being prepared for trial and that he was “ ‘totally dissatisfied’ “ with his attorney's contributions to the case and the lack of communication, which included McGee sending letters and receiving no response. 280 Kan. at 894–95. McGee claimed that they had never discussed “ ‘[his] side of the case’ “ and that his attorney did not have transcripts or witness statements at the preliminary hearing. 280 Kan. at 895.
At the hearing on the motion, defense counsel responded to the motion, disputing McGee's version of the facts, listing the times in which he had met with McGee to discuss his case, and stating that he believed he had effectively represented McGee. The district court denied the motion for new counsel and, on appeal, the Kansas Supreme Court took up McGee's claim that “he had an ‘obvious' conflict of interest with his appointed trial counsel because his trial counsel contradicted McGee's version of the facts.” 280 Kan. at 895. Our Supreme Court held that the contradiction of the facts “did not compromise any confidential information, concede McGee's guilt, or establish that McGee's counsel had any interest that materially limited his representation of McGee.” 280 Kan. at 896. Rather, the disputed facts indicated a disagreement between McGee and his counsel that did “not rise to the level of a conflict of interest.” 280 Kan. at 896. The court held that McGee had “failed to point to any facts that demonstrate an actual conflict of interest between himself and his trial counsel” and so the district court did not abuse its discretion in refusing to appoint new counsel. 280 Kan. at 896.
Thomas attempts to distinguish McGee by emphasizing that McGee dealt only with a motion for new counsel, whereas the instant case involves both a motion for new counsel and a motion to dismiss based on speedy trial grounds, which he characterizes as a more “substantive legal matter.” The State disagrees, contending that the instant case is analogous to McGee. Quoting McGee, the State contends that Wagle's expressing his belief that Thomas' speedy trial claims lacked merit did not compromise confidential information, concede Thomas' guilt, or establish that Wagle had an interest that materially limited his representation of Thomas. The State argues that Wagle's statement was simply fulfilling his ethical duty of candor toward the tribunal under Kansas Rule of Professional Conduct 3.3 (2013 Kan. Ct. R. Annot. 594).
In Adams, 2014 WL 2402185, at * 1–2, defense counsel submitted his client's pro se motion for illegal sentence to the district court and, at a hearing on the motion, stated, “I don't have anything other than what Mr. Adams has put in his motion, with the authorities that he has given. I'd ask the Court to review that.” After the district court repeatedly asked, however, counsel admitted that he did not believe the sentence was illegal. 2014 WL 2402185, at *1. A panel of this court held that counsel first advocated for his client, which showed that he did not “entirely fail to represent Adams.” 2014 WL 2402185, at *3. Because Adams failed to argue prejudice, this court affirmed. 2014 WL 2402185, at *3–4.
In this case, Thomas filed multiple pro se motions complaining of his appointed counsel's performance and that such performance resulted in a violation of his right to a speedy trial. The first of these motions was heard in December 2012. The district court denied the speedy trial claim, and Thomas effectively acquiesced to the continued appointment of his counsel. The same issues were raised at a March 15, 2013, hearing. At that hearing, counsel responded to the ineffective assistance of counsel claim much like counsel in the McGee case. The district court denied the ineffectiveness of counsel claim but did not rule on the speedy trial claim. On March 25, 2013, the district court brought up the issue that the speedy trial claim had not been addressed at the March 15, 2013, hearing. Counsel deferred to Thomas since it was a pro se motion. After a private discussion between counsel and Thomas, counsel asked the district court to read the motion and take it under advisement similar to the Adams case. In the present case counsel told the district court on March 25, he thought the motion was meritless similar to counsel in the Adams case when counsel responded to the district court that the sentence the defendant complained of was not illegal.
It is difficult to see how Thomas was prejudiced by counsel's statement. In making that statement, counsel did nothing to compromise confidentiality, concede guilt, or evidence any interest that hindered his representation. Thomas' violation of his right to a speedy trial claim was squarely and solely based on his assertion of ineffective assistance of counsel. That issue had been addressed as recently as March 15, 2013, and it was denied. The March 25, 2013, hearing on the speedy trial issue was effectively a continuation of the March 15 hearing. It is impossible to see how counsel's statement could prejudice Thomas when the foundation of his speedy trial claim had already been denied.
Did the District Court Err in Rejecting Thomas' Batson Challenges?
In his third issue, Thomas argues that the district court erred by rejecting his challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's exercise of peremptory challenges to strike two African–Americans, S.W. and R .S., from the jury panel.The State responds that the record supports the district court's decision and the district court did not err in accepting the State's asserted race-neutral reasons for using peremptory challenges to strike the prospective jurors. Regarding Batson challenges, our Supreme Court has recently explained:
“In Batson, the United States Supreme Court held that the Equal Protection Clause applies to the State's privilege to strike prospective jurors through peremptory challenges. When a Batson challenge is asserted, a three-step analysis applies; each step is governed by its own standard of review. [Citations omitted.]
“First, the party challenging the strike must make a prima facie showing that the other party exercised a peremptory challenge on the basis of race. Appellate courts utilize plenary or unlimited review over this step. [Citation omitted.]
“Second, if a prima facie case is established, the burden shifts to the party exercising the strike to articulate a race-neutral reason for striking the prospective juror. This reason must be facially valid, but it does not need to be persuasive or plausible. The reason offered will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The opponent of the strike continues to bear the burden of persuasion. [Citation omitted.]
“Third, the trial court must determine whether the objecting party has carried the burden of proving purposeful discrimination. This step hinges on credibility determinations. ‘[U]sually there is limited evidence on the issue, and the best evidence is often the demeanor of the party exercising the challenge. As such, it falls within the trial court's province to decide, and that decision is reviewed under an abuse of discretion standard.’ [Citations omitted.]” State v. Kettler, 299 Kan. 448, 461–62, 325 P.3d 1075 (2014).
During jury selection, Thomas made Batson challenges to the State's use of peremptory strikes regarding two jurors, S.W. and R.S. Thomas asserted that the State's strikes violated Batson because both jurors were African–American and he did not believe the State had a race-neutral reason for the strikes. The State agreed that both jurors were African–American. Neither party focuses on the first step of Batson analysis, i.e., Thomas' obligation to make a prima facie showing that the State exercised a peremptory challenge based upon race.
Thomas appears to collapse the second and third step in his appellate argument. He argues that the State's asserted race-neutral reasons were not persuasive and challenges the district court's credibility determinations, but he concludes that the State “failed to present ... sufficiently race-neutral reason[s]” for striking the two potential jurors. The United States Supreme Court has cautioned that combining Batson's second and third steps is error because the second step requires only facially valid race-neutral explanation, while the third step addresses “the persuasiveness of the justification.” See Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Thomas' arguments attack the credibility of the State's articulated race-neutral reasons resulting in the analysis on the third step. This court reviews for abuse of discretion, which occurs when “(1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based.' [Citation omitted.]” See State v. Lloyd, 299 Kan. 620, 627, 325 P.3d 1122 (2014).
Striking of S. W.
As its race-neutral reason for striking S.W. as a potential juror, the State asserted that S.W. appeared sleepy during jury selection, frequently leaning to one side with her eyes closed, which caused concern about whether she was paying attention. The State also explained that the prosecutor felt that S.W.'s body language and tone of voice were “closed off” and “not receptive” when the prosecutor questioned her, especially in contrast with S.W.'s demeanor toward Thomas' attorney. Third, the State noted that S.W. had initially responded to a question from the district court about her marital status by stating that she was divorced but had responded to a later question from defense counsel by stating that she had reconciled with her ex-husband. The State was concerned by S.W.'s initial “holding back.”
Thomas' defense counsel responded that he thought S.W. had been “very attentive” throughout the process and that the different responses about her marital status were simply S.W. stating that she was legally divorced, but later explaining further that she and her ex-husband had reconciled and were living together. Defense counsel then asserted that the State's offered race-neutral reason was not sufficient. The district judge denied Thomas' Batson challenge as to S.W., stating that he had noted that S.W. was more responsive to the second marital status question. Furthermore, considering the credibility of the prosecutor's statements, the district court concluded that the State had articulated a race-neutral reason for striking S.W. and that Thomas had not met his burden to prove purposeful discrimination.
On appeal, Thomas calls the State's articulated race-neutral reason “highly suspect.” He offers reasons for S.W.'s behavior other than hostility toward the prosecution, contending that perhaps S.W. was simply in a better mood when defense counsel questioned her, which would explain her change in body language, and that she merely gave more detail when answering defense counsel's question on marital status. Thomas also points out that the State did not bring S.W.'s alleged sleepiness to the attention of either the court or defense counsel during voir dire and that neither the district court nor defense counsel noticed that S.W. seemed sleepy. Thus, Thomas contends that the district court abused its discretion in overruling his Batson challenge. In response, the State points out that the reasons it gave were facially race-neutral and asserts that the district court's acceptance of those reasons was not an abuse of discretion.
Thomas' arguments attack the believability of the State's articulated reasons for striking S.W. His alternative explanations for S.W.'s behavior and disagreement with the State's characterization of S.W.'s behavior do not necessarily mean that the district court abused its discretion in finding edible the State's asserted reason for striking S.W. credible. The United States Supreme Court has recognized that determining the credibility of an asserted race-neutral reason for use of a peremptory strike of a potential juror “involves an evaluation of the prosecutor's credibility, [citation omitted], and ‘the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge[.]’ [Citation omitted.]” Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). As a plurality of the United States Supreme Court has stated: “In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed.” Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395(1991).
In addition, the court may consider whether a “juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Snyder, 552 U.S. at 477. As the Court “recognized [,] ... these determinations of credibility and demeanor lie “ ‘peculiarly within a trial judge's province[.]’ “ [Citation omitted.]” 552 U.S. at 477. The Kansas Supreme Court has likewise recognized that the trial court's decision on the third step of Batson analysis deserves great deference because it is a factual determination. State v. Pham, 281 Kan. 1227, 1237, 136 P.3d 919 (2006).
Here, the district court was in the best position to observe both S.W.'s demeanor during voir dire and the prosecutor's demeanor while presenting her race-neutral reason for using a peremptory strike on S.W. Although Thomas points out that neither defense counsel nor the district judge observed the behavior on which the State reportedly based its decision to strike S.W., the State correctly points out the United States Supreme Court has rejected the proposition “that a judge, in ruling on an objection to a peremptory challenge under Batson must reject a demeanor-based explanation for the challenge unless the judge personally observed and recalls the aspect of the prospective juror's demeanor on which the explanation is based.” Thaler v. Haynes, 559 U.S. 43, 44, 47–49, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010). Thomas' assertion of alternative interpretations of S.W.'s behavior does not mean that the district court abused its discretion in believing that the prosecutor's asserted interpretations of that behavior constituted a sufficient, race-neutral motivation to strike S.W. The district court did not err in finding that Thomas had failed to meet his burden to show purposeful discrimination and accordingly rejecting Thomas' Batson challenge.
Striking of R.S.
Regarding R.S., the State explained that it used a peremptory strike because R.S. did not say “I do” when the district court administered the oath prior to voir dire; instead, R.S. looked at the prosecutors, made eye contact, and smirked. The State noted that on the day the potential jurors were sworn, a group of protesters outside the courthouse had passed out pamphlets stating that if jurors did not take the oath, they did not have to follow the law. In light of that, because R.S. did not take the oath, the State chose to exercise a peremptory strike.
Defense counsel responded by stating that he had not witnessed R.S.'s failure to say “I do” and that a solution was to readminister the oath to R.S. The State disagreed, asserting that R.S.'s initial failure to say “I do” could not be so cured because R.S. had answered questions during voir dire without being under oath and R.S.'s apparent belief that this was acceptable indicated his willingness to disregard the district court's orders. Defense counsel then announced that he believed he had watched R.S. during administration of the oath and R.S. had said, “I do.” The district judge noted that even without R.S., the jury panel appeared to include at least four or five African–Americans and that a juror's demeanor or behavior, such as refusing to take the oath and smirking at the prosecutor, was a race-neutral reason to exercise a peremptory strike. The district judge admitted that he had not noticed R.S.'s actions during the oath, but he explicitly assessed the prosecutor's credibility and concluded that Thomas' Batson challenge should be overruled.
On appeal, Thomas also notes that neither defense counsel nor the district court observed R.S. failing to say, “I do,” or smirking at the prosecutor. Thomas also points out that the State did not ask R.S. during voir dire about his alleged refusal to take the oath, nor did the State tell the district court or defense counsel before the Batson challenge about R.S.'s behavior. He contends that had the State truly believed that R.S. refused to take the oath, the State would have informed the district court prior to the Batson challenge. According to Thomas, the State's failure to do so renders its articulated race-neutral reason “highly suspect” and shows that the district court's rejection of Thomas' Batson challenge was an abuse of discretion. Thomas' arguments—like his arguments regarding S.W. above—essentially contend that the State's articulated reason for striking R.S. was not believable.
Although the district judge admitted that he had not observed R.S. refusing to take the oath or smirking at the prosecution, the district judge explicitly considered the credibility of the prosecutor's assertion that R.S. did so and that this formed the motivation for the strike. In addition, the district court noted the racial composition of the remaining potential jurors, which may also be taken into consideration when determining whether a peremptory strike was motivated by a discriminatory purpose. See Batson, 476 U.S. at 93. Finally, as stated above, appellate courts treat a district court's determination of the believability of such a reason with great deference. The district court here believed the State saw R.S. fail to properly swear the oath and that this failure, rather than purposeful racial discrimination, motivated the State to strike R.S. from the jury panel. The district court was in the better position than this court to make that determination. The district court did not abuse its discretion in holding that Thomas failed to show purposeful discrimination.
Was K.S.A.2010 Supp. 21–3608a(a)(1) Unconstitutionally vague?
In his fourth issue on appeal, Thomas argues that this court must reverse his conviction of aggravated endangering a child under K.S.A.2010 Supp. 21–3608a(a)(1) because that statute is unconstitutionally vague. This conviction was based upon endangering Egbert's 14–month–old son, D.L., while in Egbert's apartment. Thomas argues that the statute is unconstitutionally vague because the plain language of the statute “seems to criminalize a wide range of inoffensive parental conduct,” such as permitting a child to ride in a car or eat excessive junk food. Similarly, he argues that he did not have adequate notice that the conduct for which he was convicted under this statute was criminal.
He also contends that because the statute does not require that the conduct be unreasonable, it fails to provide constitutionally required standards that prevent arbitrary and discriminatory enforcement. The State disagrees, arguing that Thomas may not challenge the constitutionality of the statute because it clearly applies to his conduct. Alternatively, the State asserts that this court has already rejected these arguments in other cases and asks this court to do so again here. Whether a statute is constitutional is a question of law subject to unlimited review. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). “We presume statutes are constitutional and must resolve all doubts in favor of a statute's validity. Further, we must interpret a statute in a manner that renders it constitutional if there is any reasonable construction that will maintain the legislature's apparent intent. [Citation omitted.]” 299 Kan. at 121.
Preservation
The State contends that Thomas did not properly preserve this challenge for appeal. Thomas concedes that he did not raise this issue in the district court and that generally an appellant may not raise constitutional issues for the first time on appeal. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Our Supreme Court has recognized three exceptions to this rule:
“(1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. [Citations omitted.]” 299 Kan. at 493.
Thomas urges this court to consider this issue under the second exception because an unconstitutionally vague law violates fundamental rights of due process. See State v. Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009) ( “[U]nder the constitutional guarantee of due process of law, a criminal statute must ‘convey[ ] a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice.’ [Citations omitted.]”).
The State responds by noting that the Kansas Supreme Court rejected the use of this exception under similar circumstances in State v. Papen, 274 Kan. 149, 161–62, 50 P.3d 37, cert. denied 537 U.S. 1058 (2002), as our court recently recognized in State v. Martinez, No. 108,441, 2014 WL 3731888, at*5–6 (Kan.App .2014) (unpublished opinion), petition for rev. filed August 21, 2014. In Papen, the defendant challenged as unconstitutionally vague a section of the statute that defines aggravating circumstances for sentencing purposes. Although he had not raised the issue below, he urged our Supreme Court to consider it because it was a question of law and consideration was necessary to serve the ends of justice. See Papen, 274 Kan. at 161–62. Our Supreme Court cited a case in which it had addressed a constitutional issue for the first time on appeal and explained that it had addressed that issue because of a recent United States Supreme Court opinion. The Supreme Court concluded that “[t]here is no similar reason why this court should elect to consider Papen's argument.” 274 Kan. at 162.
Moreover, as the State points out, a panel of this court recently cited Papen in similarly declining to address a constitutional vagueness challenge to K.S.A.2009 Supp. 21–3608a(a)(1), which is identical to the statute Thomas now challenges. See Martinez, 2014 WL 3731888, at *6. While committing aggravated robbery, Martinez pointed a gun at the 2–year–old daughter of a store employee. As a result of these actions, a jury convicted Martinez of aggravated endangerment of a child under K.S.A.2009 Supp. 21–3608a(a)(1), which prohibited “[i]ntentionally causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health is injured or endangered.” 2014 WL 3731888, at *3, 6. On appeal, Martinez argued that the statute was “unconstitutionally vague because it lacked the ‘unreasonably’ requirement set out in K.S.A. 21–3608”; as Thomas argues here, Martinez' implied argument was that by omitting an unreasonableness requirement, the statute appeared to prohibit reasonable behavior. See 2014 WL 3731888, at *5. The Martinez court noted that he had failed to challenge the statute's constitutionality in the district court and, citing Papen, declined to address the challenge. 2014 WL 3731888, at *6.
Although the State does not directly say so, it seems to ask this court to follow Martinez and Papen and decline to address this issue on its merits due to Thomas' failure to raise the issue in the district court. Considering the brevity of Thomas' explanation as to application of the second exception to the general rule prohibiting constitutional arguments raised for the first time on appeal, this court could properly do so. But see State v. Walker, No. 107,878, 2013 WL 3970180, at *5 (Kan.App.2013) (unpublished opinion) (finding that although appellant raised constitutional argument for the first time on appeal, “[i]nasmuch as the statute's purported vagueness would deny Walker due process, consideration of the issue is necessary to prevent the denial of Walker's fundamental rights”), rev. denied 299 Kan. –––– (April 28, 2014). Regardless as to whether this issue is properly before this court, it fails on its merits.
Standing
In his brief, Thomas dedicates a short section to explaining why he “clearly has standing to challenge this statute on vagueness grounds” under Hearn v. City of Overland Park, 244 Kan. 638, 639, 772 P.2d 758, cert. denied 493 U.S. 976 (1989). He contends that he has standing because he never conceded that he violated the statute and because the statute is facially unconstitutional. Although the State does not explicitly respond to this argument, it too cites Hearn, 244 Kan. at 639, and notes that our Supreme Court has stated that a person “ ‘to whose conduct a statute clearly applies may not successfully challenge it for vagueness.’ [Citation omitted.]” Our Supreme Court has further stated: “Whether standing exists is a question of law subject to unlimited review. [Citation omitted.]” State v. Gilbert, 292 Kan. 428, 431–32, 254 P.3d 1271 (2011).
Hearn dealt with multiple plaintiffs who sought to enjoin the City of Overland Park from enforcing an ordinance on pit bulls. Among other reasons, they alleged that the ordinance was unconstitutionally vague. The ordinance regulated ownership of pit bull dogs, which it defined as three specific breeds of dog and also “ ‘[d]ogs which have the appearance and characteristics of being predominantly of the breeds of dogs known as [the previously listed breeds].’ “ 244 Kan. at 638–39. After the district court upheld the constitutionality of the ordinance and found it enforceable, the plaintiffs appealed, challenging the district court's conclusion that plaintiffs had no standing to argue that the ordinance was unconstitutionally vague.
Our Supreme Court agreed with the district court as to nine of the plaintiffs, stating:
“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness. [Citation omitted.] Having acknowledged that their animals are pit bull dogs, these plaintiffs cannot complain of the allegedly vague nature of the ordinance. However, such is not the case with regard to the four remaining plaintiffs, [who had not admitted that their animals were pit bull dogs].” 244 Kan. at 639–40.
Here, Thomas contends that because he never admitted that he violated the child endangerment statute and instead pled not guilty, he is similar to the plaintiffs in Hearn whose dogs were not registered pit bulls and who therefore had not admitted that their animals were regulated under the ordinance. Thomas' behavior at issue here, however, is clearly covered by the terms of the statute Thomas now challenges. K.S.A.2010 Supp. 21–3608a(a)(1) prohibited “[i]ntentionally causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health is injured or endangered.”
Our Supreme Court has said that “ ‘a vague statute leaves persons of common intelligence to guess at its meaning.’ “ State v. Wilson, 267 Kan. 550, 556, 987 P.2d 1060 (1999). Thomas argues that “ ‘endangered’ indicates an unquantified potentiality of harm,” which would leave a person of reasonable intelligence guessing as to the meaning of the statute and could potentially prohibit innocuous activities such as allowing a child to ride in a car. Specifically, he contends that he personally did not have adequate notice that his conduct violated K.S.A.2010 Supp. 21–3608a(a)(1), especially in light of the fact that Egbert jumped out the window of her own volition, not at his command.
When considering standing for the purposes of challenges based on unconstitutional vagueness, our Supreme Court has explicitly noted whether the party pursuing the challenge conceded that his or her conduct fell under the statute. In State v. Williams, 299 Kan. 911, 918, 329 P.3d 400 (2014), the court addressed standing to allege a statute's unconstitutional vagueness after stating: “[The standing] question arises because Williams concedes the conduct L.M. attributed to him clearly falls within the terms of the statute.” Likewise, in Hearn the pivotal information was that some plaintiffs had conceded that their dogs were pit bulls. Since the statute regulated pit bull ownership, those plaintiffs had essentially conceded that the statute applied to them. The court did not address the substance of their vagueness argument. It addressed the merits only after it determined the question of standing. See Hearn, 244 Kan. at 640.
This court took a similar approach when it held the appellant had no standing to challenge a statute as unconstitutionally vague. In State v. Smith, No. 104,598, 2012 WL 687067, at *2–3 (Kan.App.2012) (unpublished opinion), rev. denied 293 Kan. 1113 (2013), this court noted that Smith's constitutional challenge was based upon unconstitutional ways in which the statute might be applied to others, that Smith did “not contend that his own actions were outside the scope of conduct the statute intended to prohibit,” and that he did “not contend that he had no ‘fair warning’ that his [conduct was] ... within the scope of prohibited conduct under the statute.” 2012 WL 687067, at *2–3. The court concluded that Smith lacked standing to bring a vagueness challenge. 2012 WL 687067, at *3.
Two fairly recent opinions by this court have used the test for unconstitutional vagueness to determine whether the statute at issue clearly applied to the conduct at issue in the case as part of concluding whether the challenging party has standing to bring a vagueness challenge. See State v. Hansford, No. 109,105, 2014 WL 1707455, *3–5 (Kan.App.2014) (unpublished opinion) (undertaking vagueness analysis, determining that defendant's conduct was clearly covered by the statute at issue, and therefore concluding that she lacked standing to challenge the statute as facially void for vagueness), petition for rev. filed May 23, 2014; State v. Croft, No. 105,597, 2012 WL 6634389, at *3–6 (Kan.App.2012) (unpublished opinion) (reviewing the merits of the appellant's vagueness challenge as applied to his conduct, determining that “any person of ordinary intelligence in Croft's position would have understood that he was violating the statute,” and concluding that he did not have standing to bring a vagueness challenge), rev. granted and remanded to Kan.App. on other grounds by Supreme Court Order August 29, 2014. Although this additional analysis is tempting, it considers the merits of the underlying vagueness argument prematurely.
Neither Hearn nor Smith considered the merits of the vagueness arguments when determining standing, and Williams implies that the standing question arises only when a party concedes that his or her conduct was prohibited by the statute at issue. In contrast, Thomas' contention of vagueness relies in part on the statute's application to his conduct—he argues that he had no fair warning that his conduct violated the statute. Because Thomas has not conceded that his conduct was covered by the statute, he has standing to raise a vagueness challenge.
Thomas does not, however, have standing to argue vagueness based upon how the statute might be applied to others. In addition to arguing that he did not have fair warning that K.S.A.2010 Supp. 21–3608a(a)(1) prohibited his conduct, Thomas argues that the statue is unconstitutional because “[a] plain reading of the statute seems to criminalize a wide range of inoffensive parental conduct,” including allowing a child to play football. Our Supreme Court has repeatedly held that an individual lacks standing to challenge the constitutionality of a statute by invoking the rights of others, other than in challenges that involve the First Amendment to the United States Contitution. See State v. Coman, 294 Kan. 84, 90–91, 273 P.3d 701 (2012); State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006); Wilson, 267 Kan. at 557. Because this case has no First Amendment implications, this court need not address Thomas' hypothetical arguments about application of the statute to unwitting and well-intentioned parents.
Merits of Thomas' Arguments
As stated above, K.S.A.2010 Supp. 21–3608a(a)(1) prohibited “[i]ntentionally causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health is injured or endangered.” A statute's constitutionality presents a question of law over which this court has unlimited review. Soto, 299 Kan. at 121. This court presumes statutes are constitutional, interprets statutes in a way that renders them constitutional if there is a reasonable construction that maintains the legislature's apparent intent, and resolves all doubts in favor of the statutes' validity. 299 Kan. at 121.
As our Supreme Court has recognized:
“A statute that ‘either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application’ violates the Fourteenth Amendment to the United States Constitution and is thus void for vagueness. [Citation omitted.]” Richardson, 289 Kan. at 124.
“In determining whether a[law] is unconstitutionally vague, we subject it to a two-pronged inquiry. [Citations omitted.] First, the [law] must give adequate notice to those tasked with following it. More specifically, the [law] must ‘convey sufficient definite warning and fair notice as to the prohibited conduct in light of common understanding and practice.’ [Citations omitted.] We have recognized that a[law] that “ ‘requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.’ “ [Citations omitted.]....
“In the second prong of our inquiry, we require that a [law's] terms must be precise enough to adequately protect against arbitrary and discriminatory action by those tasked with enforcing it. [Citations omitted.] We acknowledge that a law is invalid if it violates either prong. [Citation omitted.]” City of Lincoln Center v. Farmway Co–Op, Inc., 298 Kan. 540, 545, 316 P.3d 707 (2013).
In addition, as the Kansas Supreme Court has stated:
“ ‘It is important to note that we are not dealing with a[law] that limits constitutionally protected conduct. Because the present [law] does not infringe upon explicit constitutional guarantees, such as freedom of speech, the [law] should be upheld unless it “is impermissibly vague in all of its applications.” [Citation omitted .] The [challenging party] must establish that the ordinance is unconstitutional on its face, which means it must be demonstrated to be “ ‘invalid in toto—and therefore incapable of any valid application.’ “ [Citations omitted.] In order to establish that legislation is unconstitutional on its face, the person challenging the legislation must establish that it is vague “ ‘not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’ “ [Citations omitted.]' “ Boyles v. City of Topeka, 271 Kan. 69, 72, 21 P.3d 974 (2001) (quoting Hearn, 244 Kan. at 641).
K.S.A.2010 Supp. 21–3608a(a)(1) does not limit constitutionally protected conduct. Thus, under Boyles, this court should uphold K.S.A.2010 Supp. 21–3608a(a)(1) against a vagueness challenge unless Thomas establishes that it specifies no standard of conduct to which a person might conform his or her conduct and is incapable of any valid application. Thomas has not done so. The application to his conduct was valid.
Adequate Notice of Prohibited Conduct
The first step in the analysis addresses whether the statute gives a person of ordinary intelligence a reasonable opportunity to know what behavior is prohibited or, in other words, whether the statute gives fair warning of criminal behavior. See City of Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270 (1990) (stating as the first question in a vagueness test: “ ‘[1] whether the ordinance gives fair warning to those persons potentially subject to it’ ”). Thomas argues that he did not have adequate notice that K.S.A.2010 Supp. 21–3608a(a)(1) prohibited his behavior. Specifically, he points out that he did not directly threaten D.L., that he permitted Egbert to pick up D.L. and hold him, and that it was Egbert who jumped out of the window while holding D.L., not Thomas. He contends that the language of the statute did not provide fair warning that it prohibited what he calls “the accidental and unplanned presence of D.L. during the burglary and robbery” and therefore the statute fails the first part of the vagueness test.
The State responds that the Thomas' assertions that he did not plan for D.L.'s presence and that he did not directly threaten D.L. are not relevant to an argument about fair notice. Even taking Thomas' statements as true, they do not impact the adequate notice analysis. As explained above, Thomas only has standing to raise a vagueness challenge as the statute applies to his own conduct, the question here is whether a person of ordinary intelligence would reasonably understand that committing armed robbery in the presence of a 14–month–old child violates K.S.A.2010 Supp. 21–3608a(a)(1).
In Martinez, in which the defendant pointed a loaded gun at a child during a robbery, despite the fact that this court announced it was declining to address the merits of the arguments, the court nevertheless went on to explain that Martinez' vagueness challenge failed regardless because his conduct was of the type clearly prohibited by the statute, which precluded a successful assertion that the statute was unconstitutionally vague. 2014 WL 3731888, at *6. Specifically, the Martinez court stated:
“[W]hen a defendant's conduct is of the type clearly prohibited by the statute, the defendant cannot assert that the statute is unconstitutionally vague. In this case, Martinez' conduct of intentionally pointing a loaded gun at a 2–year–old child while telling her to kneel is the type of conduct plainly prohibited by K.S.A.2009 Supp. 21–3608a(a)(1).” 2014 WL 3731888, at *6.
In the instant case, Egbert testified at trial that after Thomas pushed her into the bedroom at gunpoint, D.L. came into the room and started screaming, and Thomas told her to “shut the baby up.” Thomas then proceeded to search Egbert's room while Egbert held D.L. and watched. After Lee came home and Thomas and the other man went to the front room to confront him, Egbert heard gunshots and, afraid for her life, she jumped out the second-story window while holding D .L. Intentionally committing armed robbery in the presence of a 14–month–old child, firing a gun in an apartment in which a 14–month–old child is present, and creating a situation of such fear that the child's mother jumps out a second-story window while holding the child is the type of conduct clearly prohibited by K.S.A.2010 Supp. 21–3608a(a)(1). The statute provided constitutionally adequate notice that it prohibited this sort of conduct.
Sufficiently Explicit Standards
In the second step of vagueness analysis, this court considers whether the law's terms are “precise enough to adequately protect against arbitrary and discriminatory action by those tasked with enforcing it.” City of Lincoln Center, 298 Kan. at 545. Under this step, Thomas focuses on the lack of an explicit “[u]nreasonableness [r]equirement.” Thomas points to K.S.A. 21–3608(a), which defined endangering a child as “intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health may be injured or endangered.” (Emphasis added.) K.S .A.2010 Supp. 21–3608a(a), under which a jury convicted Thomas of aggravated endangering a child, is very similar; aggravated endangering a child is “[i]ntentionally causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health is injured or endangered.” The difference upon which Thomas focuses is that endangering a child requires that the causing or permitting be unreasonable, whereas aggravated endangering a child does not. Thomas argues that the lack of an unreasonableness requirement renders the statute unconstitutionally vague, as it does not provide quantifiable standards for enforcement.
Although Thomas does not acknowledge it, the State correctly points out that this court has repeatedly rejected this argument in the past. For example, in Hansford, 2014 WL 1707455, at *4, this court examined Hansford's argument that K.S.A.2010 Supp. 21–3608a(a)(1) “has a fatal flaw because it lacks a ‘reasonableness element.’ “ The court noted that another panel of this court had considered a similar contention as part of an identical offense analysis and concluded:
“ ‘While it is criminal under K.S.A. 21–3608(a) to intentionally expose a child to situations where the child may be injured or endangered only if such an act is unreasonable, it is criminal under K.S.A. 21–3608a(a)(1) to intentionally expose a child to situations where the child is injured or endangered without qualification. Where the threat is real and actual, it could be said that the act of exposing a child to that threat is inherently unreasonable.’ “ 2014 WL 1707455, at *4 (quoting State v. Fabre, No. 100,081, 2009 WL 1911696, at *7 [Kan.App.2009] [unpublished opinion], rev. denied 290 Kan. 1098 [2010] ).
The Hansford court followed the rationale of Fabre, 2009 WL 1911696 stating:
“Applied here, the lack of a reasonableness requirement in aggravated endangering a child is not a defect that makes the statute vague as applied to Hansford. In fact, the omission of a reasonableness element makes the prohibitions of the aggravated endangering statute more clear than does its inclusion in misdemeanor endangering. Under K.S.A.2010 Supp. 21–3608a(a)(1) the child must actually have been injured or endangered. Under the lesser offense in K.S.A. 21–3608(a)[,] the legislature has used subjective terms more difficult to understand and apply, like ‘unreasonably’ and ‘may be injured.’...
“The words in K.S.A.2010 Supp. 21–3608a(a)(1) leave little room for subjective interpretation. Hansford contends that ‘endangered’ indicates an ‘unqualified potentiality of harm.’ But the statute does quantify it because the child must have been placed in a situation which has already actually caused injury or endangerment to the child's life, body, or health. There is no ‘may’ in this statute. Nor is there a reasonable way to cause such injury or endangerment. To ‘endanger’ is ‘to expose to harm or danger; imperil.’ [Citation omitted.] Applying the statute to Hansford's conduct here, while the child's life was endangered, C.B.'s body and health were actually injured under the statute, Hansford's concerns about the word ‘endangered’ only concern the rights of others who might be prosecuted, and cannot serve as a basis to challenge the statute's application to her conduct.” Hanford, 2014 WL 1707455, at *4.
Similarly, in the instant case, Thomas' conduct caused actual injury to D.L.'s body since D.L. bumped his head on the ground after Egbert jumped from the window.
Although Thomas correctly points out that Egbert did so not at his command, it was the armed robbery Thomas was committing combined with the sound of gunfire that prompted Egbert to jump. The reasoning of the Hansford panel is sound. Therefore, in this case the lack of a requirement of unreasonableness in K.S.A.2010 Supp. 21–3608a(a)(1) does not mean that the statute lacks the required explicit standards to prevent arbitrary or discriminatory enforcement of the statute. Moreover, Thomas has failed to show, as Boyles and Hearn require, that K.S.A.2010 Supp. 21–3608a(a)(1) was “ ‘impermissibly vague in all of its applications' “ and thereby “ ‘incapable of any valid application .’ “ See Boyles, 271 Kan. at 72. Thomas' argument fails.
Did Cumulative Error Deny Thomas a Fair Trial?
Next, Thomas argues that cumulative error denied him a fair trial. “ ‘Cumulative error, considered collectively, may be so great as to require reversal of a defendant's conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial.’ [Citation omitted.]” State v. Frierson, 298 Kan. 1005, 1020, 319 P.3d 515 (2014). Nevertheless, “ ‘[c]umulative error will not be found when the record fails to support the errors raised on appeal by the defendant.’ [Citations omitted.]' “ 298 Kan. at 1020. Accordingly, because none of Thomas' claims of error are successful, his claim of cumulative error fails as well.
Did the District Court Violate Thomas' Constitutional Rights Under Apprendi v. New Jersey by Considering his Criminal History at Sentencing?
Next, Thomas argues that the district court violated his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it sentenced him based in part on his criminal history without first requiring the State to allege his criminal history in a charging document and prove it beyond a reasonable doubt to the jury. Thomas concedes that our Supreme Court has already decided this issue against him but raises it to preserve it for federal review. See State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002).
This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). There is no such indication here. Therefore, the district court did not err when it considered Thomas' criminal history without requiring that the State first allege it in the complaint and prove it beyond a reasonable doubt to a jury.
Did the District Court Violate Thomas' Constitutional Rights Under Apprendi v. New Jersey When it Sentenced Thomas to the Highest Sentencing in the Sentencing Grid Box?
In his final argument, Thomas contends that the district court violated his rights under the Sixth and Fourteenth Amendments as recognized by Apprendi when it sentenced him to the aggravated sentence from the sentencing grid box without first requiring the State to prove aggravating factors beyond a reasonable doubt to a jury. Thomas concedes that the Kansas Supreme Court has already decided this issue adversely to his position. See State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008). He asserts that Johnson was wrong and raises the issue to preserve it for federal review.
As stated above, this court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position, which does not exist here. See Hall, 298 Kan. at 983. Accordingly, this court finds no error. In addition, the Johnson court held that any sentence within a grid box “may be considered a presumptive sentence, and appellate courts lack jurisdiction” to hear this type of challenge. 286 Kan. at 842, 851–52. Therefore, under Johnson, this court dismisses this portion of the appeal for lack of jurisdiction.
Affirmed in part and dismissed in part.