Opinion
No. 106,735.
2013-05-17
STATE of Kansas, Appellee, v. Chatitah Mon'chell VAUGHN, Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
ATCHESON, J.
A Shawnee County District Court jury convicted Defendant Chatitah Mon'chell Vaughn of aggravated battery for stabbing her former boyfriend. She contends the conviction should be reversed because the prosecutor made an improper closing argument to the jury. Vaughn also says the district court failed to adequately consider her circumstances in requiring that she pay a portion of the fees for her appointed lawyer. We disagree and affirm both the conviction and the assessment of attorney fees.
Given the issues on appeal, we need not recount in detail the evidence at trial. Vaughn dated Vincent Boyce, Jr., for some period, but their romantic relationship apparently had collapsed by mid-April 2010, when the stabbing happened. Boyce went to Vaughn's home so she could braid his hair. And he spent the night. In the morning, Boyce couldn't find his cell phone. Vaughn had hidden it and made Boyce search for it. We gather Boyce did not see Vaughn's actions as playful teasing but an angry attempt to annoy and harass him. Boyce testified that while he was looking for his phone, Vaughn attacked him with a kitchen knife and succeeded in cutting him. Boyce physically resisted and was able to wrestle the knife away from Vaughn. He told the jury he then left the house and threw the knife in a wooded area near the curb.
At trial, the jury viewed a videotaped statement Vaughn gave the police that cast Boyce as having attacked her. Vaughn told the police she retrieved the knife from the kitchen to defend herself against Boyce. She then retreated into a bedroom and locked the door. According to Vaughn, Boyce broke down the door and continued to assault her. She said he eventually took the knife from her and left after she started screaming.
Vaughn was charged with a severity level 4 intentional aggravated battery for the stabbing, a felony violating K.S.A. 21–3414, and with misdemeanor criminal damage to property for breaking Boyce's cell phone. The district court dismissed the criminal damage charge, and it doesn't figure in the appeal. The jury found Vaughn guilty of the lesser felony of severity level 7 reckless aggravated battery. The district court imposed a 34–month sentence on Vaughn and placed her on probation for 36 months.
In challenging the conviction, Vaughn contends the prosecutor deprived her of a fair trial by making comments in closing argument to the jury to the effect that Boyce was deserving of equal protection of the law and the same justice as any other victim of a crime. Early in the closing argument, the prosecutor told the jury:
“Mr. Boyce appeared to be a smart man, adept at the English language. Was he an impressive person, was he someone that you could relate to? Probably not, but Mr. Boyce is entitled to equal protection of the law just like everybody else in this courtroom. And when the law has been violated and Mr. Boyce is the victim, whether you like him or not, whether he impresses you as a person or not, he only has one place to go. There is only one courthouse for the noble, for the average and for the poor; and that's this courthouse; and each of you have taken an oath to uphold the law and apply it equally and fairly to any of those individuals, including Mr. Boyce.”
Later, the prosecutor argued: “He [Boyce] doesn't have to be a friend, but he's entitled to the same justice that we all are; and this is the only place he can get it. The only place he can get it, and we got nothing to support any of the beatings that she claims she got that morning, nothing.”
This court recently recapitulated the standard of review to be applied on this issue:
“Appellate review of alleged prosecutorial error in argument to a jury entails a two-step analysis. First, the appellate court must decide whether the comments fall outside the wide latitude afforded a prosecutor in discussing the evidence and the law. Second, if the prosecutor has exceeded those bounds, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury to the extent the defendant was denied a fair trial. State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009) (outlining mode of analysis); see State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009) (noting considerable range permitted advocates, including prosecutor, in arguing their causes in jury summations).” State v. Schreiner, 46 Kan.App.2d 778, 793–94, 264 P.3d 1033 (2011), rev. denied ––– Kan. –––– (2013).
We also must review “counsels' remarks in jury summations in light of the overall thrust of the point being made rather than as isolated snippets removed from the surrounding commentary—commentary that often lends material shading and depth to what might otherwise appear to be of questionable propriety standing alone.” 46 Kan.App.2d at 793; see State v. Naputi, 293 Kan. 55, 59–60, 260 P.3d 86 (2011). If the prosecutor makes an improper argument, an appellate court then deploys a three-part test to assess the magnitude of the harm and possible relief for the defendant:
“ ‘(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60–261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, [22,] 17 L.Ed.2d 705, 87 S.Ct. 824 (1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial], have been met.’ [Citations omitted.]” McReynolds, 288 Kan. at 323.
The Kansas Supreme Court recently reiterated that standard in State v. Hernandez, 292 Kan. 598, 603, 257 P.3d 767 (2011).
We infer that Boyce—whether by appearance, attitude, or both—came across in a courtroom as disagreeable. Some people and some crime victims simply do not invite or cultivate warm responses from others. But unlikeable parties or victims have no less claim to fair consideration from juries than do widows and orphans. Taking fair measure of Boyce's demeanor, the prosecutor simply reminded the jurors of that legal truism. The comments were proper and well within the latitude afforded advocates in arguing a case to a jury. The argument was not an impermissible plea for sympathy drawing on particularly emotional circumstances related to the crime or the victim not otherwise properly within the jury's consideration. Cf. State v. Donesay, 265 Kan. 60, 84–85, 89, 959 P.2d 862 (1998) (testimony from widow of sheriff's deputy regarding their marriage and his law enforcement aspirations improperly admitted in prosecution of man accused of murdering him and prosecutor impermissibly referred to that testimony in opening statement to jury).
Because the prosecutor's remarks here were proper, we do not engage the second step of the process for gauging whether Vaughn's right to a fair trial was compromised.
For her second point on appeal, Vaughn contends the district court failed to weigh her financial circumstances in requiring she pay part of the fees for the lawyer appointed to represent her through the Board of Indigents' Defense Services. Fee assessments for BIDS lawyers are regulated under K.S.A. 22–4513. The amount is essentially treated as a civil judgment imposed on a defendant following conviction. The statute also requires that the trial court “shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.” K.S.A. 22–4513(b).
The district court must make that determination at the time the assessment is ordered. State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006) (“[T]he sentencing court, at the time of the initial assessment, must consider the financial resources of the defendant and the nature of the burden that payment will impose explicitly, stating on the record how those factors have been weighed in the court's decision.”). While the statute permits a defendant to later request modification of a BIDS assessment because of “manifest hardship,” that process cannot replace the district court's studied determination of an appropriate amount in the first instance. 281 Kan. at 544.
Here, the district court briefly questioned Vaughn about her current employment status and her work history. The district court also established that Vaughn had no dependents. In light of those circumstances, the district court specifically found Vaughn should not bear full financial responsibility for the attorney fees and imposed a substantially reduced assessment of $500. Although the district court's inquiry was not as detailed as it might have been, we believe the district court was sufficiently apprised of the circumstances to make an informed determination on the BIDS assessment in conformity with K.S.A. 22–4513.
Affirmed.