Opinion
109,425.
07-10-2015
STATE of Kansas, Appellee, v. Brian E. VAUGHT, Appellant.
Sarah Ellen Johnson, Capital Appellate Defender, for appellant. Tim Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Sarah Ellen Johnson, Capital Appellate Defender, for appellant.
Tim Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
LEBEN, J.
A jury convicted Brian Vaught of eight offenses related to events that took place on 2 days in July 2012. Vaught argues on appeal that his conviction for aggravated assault should be reversed and a new trial ordered because the district court didn't give the jury appropriate instructions.
As charged in this case, aggravated assault required that the State prove that Vaught had placed his girlfriend, Elicia Gomez, in reasonable fear of immediate bodily injury through the use of a deadly weapon. See K.S.A.2014 Supp. 21–5412(a), (b)(1). The State presented evidence that Vaught had strangled Gomez until she passed out and had threatened her with a loaded rifle. While the State sought to convict Vaught of attempted murder for the strangulation—a charge the jury did not convict Vaught of—and told the jury in closing argument that it claimed the rifle as the deadly weapon on the aggravated-assault charge, the jury asked during deliberations whether it could consider Vaught's hands to be a deadly weapon.
When the jury asks a question about its instructions, the district court must respond in some meaningful manner or seek clarification or limitation of the request. K.S.A. 22–3420(3) ; State v. Boyd, 257 Kan. 82, 88, 891 P.2d 358 (1995) ; State v. Jones, 41 Kan.App.2d 714, Syl. ¶ 3, 205 P.3d 779 (2009), rev. denied 290 Kan. 1099 (2010). The district court did not do so here. Instead, it merely told the jurors to consider the facts and the instructions they had already been given—instructions that did not say that the rifle was the weapon to be considered or that Vaught's hands were not. We conclude that the district court's response was insufficient, and we reverse the aggravated-assault conviction and remand for a new trial on that charge.
Vaught also argues three other errors on appeal, but we do not find that they warrant reversal:
• Vaught argues that a new trial is required because the tape-recording system that kept a record of the trial malfunctioned for a time. But a new trial is only required if the defendant shows a claim of trial error with a substantial foundation based on the available record that cannot be adequately reviewed on appeal. We find no substantial claim of error regarding the convictions we are sustaining.
• Vaught argues that the district court violated his right to be present for a part of the trial when it responded in writing to a jury question rather than bringing the jury back into open court in the defendant's presence to answer that question. But this violation of a defendant's constitutional rights is subject to the harmless-error test, and we find the error here had no effect on the trial's outcome.
• Vaught argues that the district court abused its discretion by allowing a police officer to testify about his training in recognizing domestic-violence situations. But even if that testimony was admitted in error, we find that the error was harmless, so a new trial on the convictions affirmed in this opinion is not warranted.
We therefore affirm Vaught's convictions other than for aggravated assault; we remand for a new trial on the aggravated-assault charge.
Factual and Procedural Background
The troubled relationship between Vaught and Gomez had come to the attention of local police in Mayetta before the events that led to the convictions now before our court. Around March 2012, the parties had decided to separate, and an officer went to their home to keep watch as Gomez moved her belongings out. The officer told the couple that they should stay away from each other, but Gomez was back in the home by July.
On July 21, 2012, police were called to the Walmart in nearby Holton. Three officers responded, and all three testified that Vaught resisted arrest and had to be taken to the ground before he could be handcuffed. After he was arrested, Gomez went to the police station and gave a detailed statement that led to the charges against Vaught.
She first told of an earlier event, on July 4, when Vaught had broken her phone in anger and broken her nose by head-butting her.
During the day, Gomez said Vaught had taken a phone out of her hand and broken it in half. She said she had tried to call her grandmother from a different phone, but Vaught grabbed that phone, threw it down the stairs, and slammed Gomez' head into the landing at the bottom of a stairway.
That evening, a friend of Vaught's, Joe Levitt, came to visit Vaught and Gomez. While Levitt was inside getting a drink, Vaught and Gomez were outside—until Gomez came rushing in with blood pouring out of her nose. She had trouble breathing, and Vaught took her to the hospital while Levitt stayed behind with Gomez' 5–year–old daughter.
At the hospital, Vaught and Gomez initially told hospital staff that she had tripped on a hose and hit her face against a wall. But when Gomez was separated from Vaught while getting some scans of her injuries, she said that Vaught had head-butted her. Her facial injuries required surgery.
Gomez told police that events on July 21 had begun with Vaught drinking and the parties discussing the medical bills from the facial surgery required after the incident on July 4. She said a verbal argument had ended up with Vaught coming at her physically. She said Vaught had said to her, “I think it's time, bitch. You're gonna die,” before he grabbed her and put her hands around her throat. She described blacking out, then he let go and she threw up. She said he had grabbed and choked her until she blacked out again, after which he let go and went outside.
Soon after that, she said Vaught had asked, “Do you want to die tonight?” and then grabbed a .270 rifle, put a clip into it, and put it to her head. She said he had then lowered it and put it by the back door.
Eventually, Vaught suggested going to the Walmart together to return movies they had rented. Vaught remained in the car with Gomez' daughter while Gomez went to return the movies. She said Vaught had come looking for her because she had been taking too long. Ultimately, Gomez asked store employees to call police.
For the events on July 4, the jury convicted Vaught of aggravated battery. For the events on July 21, the jury convicted Vaught of aggravated assault, two counts of domestic battery, three counts of obstructing official duty, and one count of disorderly conduct. The jury acquitted Vaught of two counts of criminal threat alleged to have occurred on July 21 and one count of criminal damage to property; the jury was unable to reach a verdict on the charge of attempted murder (related to the choking). The district court sentenced Vaught to 45 months in prison on the aggravated-battery conviction plus a consecutive sentence of 12 months in prison for aggravated assault. The court sentenced Vaught to 174 days in the county jail on one domestic-battery charge; that sentence was offset by time Vaught had already served before trial. The remaining sentences were run concurrently, so the total sentence was 57 months in prison.
Vaught has appealed to this court. We will discuss additional background facts in addressing the arguments he has raised on appeal.
I. The District Court's Failure to Provide a Meaningful Response to the Jury's Question About the Aggravated–Assault Charge Requires Reversal of That Conviction.
The district court must instruct the jury about the law that applies to its consideration of the case. Often, during deliberations, the jury asks for clarification or further instruction. When that happens, the district court must respond in some meaningful manner or seek clarification or limitation of the request. K.S.A. 22–3420(3) ; Boyd, 257 Kan. at 88 ; Jones, 41 Kan.App.2d 714, Syl. ¶ 3 ; State v. Sanchez, No. 106,547, 2012 WL 3290003, at *4 (Kan.App.2012) (unpublished opinion).
Here, the jury asked the court a specific question—whether it could consider the defendant's hands to be a deadly weapon when considering the aggravated-assault charge: “Count 3[.] Is the charge asking that the deadly weapon is the gun? [O]r can you count the defendant[']s hands as a deadly weapon?”
The court could have answered the question directly. The State's criminal complaint specifically charged that the deadly weapon used to threaten Gomez was the .270 rifle. In addition, in the prosecutor's closing argument, she argued that the rifle was the deadly weapon; she made no suggestion that the defendant's hands could be considered a deadly weapon when considering the aggravated-assault charge. So the court could have responded: “The State charges that the deadly weapon involved in Count 3, the aggravated-assault charge, is the .270 rifle. You may not consider the defendant's hands as a deadly weapon with respect to Count 3.”
But the court did not provide any meaningful answer to the question. Instead, it told the jury simply that “[y]ou must apply the facts as you find them to each individual instruction.” The court's response said nothing about what items could be considered a deadly weapon with respect to the aggravated-assault charge. The court's failure to provide a meaningful response violated the court's statutory duty to do so. Sanchez, 2012 WL 3290003, at *4.
On appeal, we review a judge's response to a jury's question for abuse of discretion, State v. Adams, 292 Kan. 151, 163, 254 P.3d 515 (2011), and the district court abuses its discretion when its action is based on an error of law. State v. Jolly, 301 Kan. 313, Syl. ¶ 7, 342 P.3d 935 (2015). The district court abused its discretion here when it failed to comply with its statutory duty.
The State separately argues that even if the district court erred, we should find either that the defendant invited the error or that the error was harmless. We do not find either argument persuasive on the facts before us.
It's true that the invited-error rule can in some cases lead an appellate court to decline to review whether a district court's answer to a jury's question was proper. See Adams, 292 Kan. at 163. But this was not a case in which defense counsel suggested or agreed to the district court's response to the jury's question; defense counsel here objected to it. We readily concede that the objection was not particularly cogent—a suggestion that the court tell the jury that “you have all the information you need to decide this case” and a recognition that the difference between his suggestion and the court's initial proposal was “basically ... semantics.”
We do not apply the invited-error rule here, however, because the defense did not invite the error. As defendant noted in his appellate brief, the district court announced to the parties before getting their input that it was “not gonna go back and modify the instruction” on the elements of aggravated assault in response to the jury's question, and the district court suggested the essence of its proposed answer before hearing from the parties. The court recognized as well that defense counsel was objecting to the answer given (though no party suggested a truly meaningful response).
We are unable to find the error harmless here, either. While the State's closing argument mentioned only the rifle as the deadly weapon for purposes of the aggravatedassault charge, at least one juror surely thought it at least possible that Vaught's hands could be considered the deadly weapon. There was extensive testimony about Vaught choking Gomez, and the jury failed to reach a verdict on the attempted-murder charge. We know too that the jury acquitted Vaught on some counts that relied primarily on Gomez' testimony, and Gomez was the only direct witness to the threat allegedly made with the rifle.
Vaught separately challenged the original jury instruction given by the court on the aggravated-assault charge, contending that the court should have told the jury from the outset that the deadly weapon involved in that charge was the rifle. Because we have determined that a new trial on that charge is required based on the court's response to the jury's question, we need not determine whether the court's instruction was clearly erroneous. (Since the defendant didn't object to that instruction, we may reverse for an instruction error only for clear error.) On retrial, however, we note that potential confusion could certainly be avoided by identifying the rifle as the weapon in the court's instruction about the facts the State must prove to convict Vaught for aggravated assault.
II. The Partial Lack of a Transcript of One Witness' Trial Testimony Does Not Require Setting Aside the Jury's Verdict and Ordering a New Trial.
The district court used an electronic-recording device to make a record of this trial. When a transcriptionist attempted to prepare the trial transcript, she determined that about an hour and 10 minutes of the testimony of arguably the case's most important witness, Gomez, had not been recorded. Vaught contends that the absence of this testimony prevents us from making a full review of the case on appeal and that a new trial should therefore be ordered.
Due process does require that a reasonably accurate and complete trial record be available for appellate review. State v. Holt, 298 Kan. 531, 537, 314 P.3d 870 (2013). Accordingly, where the defendant has a claim of error that appears to have a substantial foundation based on the available record, but the claim can't be fully resolved because the record is incomplete or inaccurate, a new trial is the appropriate remedy. 298 Kan. at 538.
We conclude here that the defendant has not demonstrated any claim of error that has a substantial foundation based on the available record that cannot be adequately reviewed on appeal. First, Kansas court rules allow for the preparation of a substitute record where one is lost or missing. Kansas Supreme Court Rule 3.04 (2014 Kan. Ct. R. Annot. 24) sets out the method for doing so, and that process was followed here. The prosecution prepared a summary of the missing testimony, Vaught was allowed to object to it, and the court ultimately adopted a summary of that testimony. Second, we have a full transcript of the defense counsel's cross-examination of Gomez. Third, we also have a transcript of Gomez' testimony at the preliminary hearing. All of this aids us in review of any claims of error.
Vaught's main complaint is that we can't fully assess his claim that the prosecutor made improper statements in closing argument—statements that Vaught claims weren't supported by testimony at trial. One particular claim is that while the prosecutor talked about how Vaught had isolated Gomez from friends and family—said to be a sign of a controlling, abusive relationship—the summary of Gomez' missing testimony approved by the court had only one sentence about isolation: “Mr. Vaught kept her very isolated during this time.”
But prosecutors enjoy wide latitude in crafting closing arguments. State v. Killings, 301 Kan. 214, 228, 340 P.3d 1186 (2015). While they may not argue facts not in evidence, they may make reasonable inferences based on the evidence. 301 Kan. at 228. Even though the written summary of Gomez' testimony only contains a brief reference to keeping Gomez isolated, that was part of the evidence presented to the jury, according to the record before us. We do not find substantial support in this record for a claim of prosecutorial misconduct in talking about Gomez' isolation.
Vaught suggests other potential difficulties arising from the lack of a full transcript. For example, he suggests that knowing the exact words Gomez used might shed light on why the jury asked a question about whether Vaught's hands could be considered the deadly weapon for the aggravated-assault charge. We conclude that these other potential difficulties are too speculative to constitute a showing that a complete transcript might have changed the outcome of this appeal. See Holt, 298 Kan. at 538.
III. The Court's Procedure in Answering the Jury's Question in Writing, Rather Than Reading the Answer to the Jury in Open Court, Does Not Require a New Trial.
Vaught claims that the district court violated a statute, K.S.A. 22–3420(3), and various constitutional provisions by answering the jury's question in writing rather than bringing the jurors back into the courtroom to read the answer to them. (The court actually did this with two questions from the jury; its answer to the second question, which is not substantively relevant to our appeal, related to how to fill out the verdict form.) Vaught did not raise these claims before the district court, but he argues on appeal that they should be considered because they involve a question of law that can be decided based on admitted facts. See State v. McCullough, 293 Kan. 970, 998, 270 P.3d 1142 (2012). Our Supreme Court has considered this issue on appeal even when it was not raised before the trial court. See State v. Bowen, 299 Kan. 339, 354–55, 323 P.3d 853 (2014). Accordingly, we consider Vaught's claim on its merit.
Vaught is right that the district court did not comply with K.SA. 22–3420(3) as that statute read at the time of trial. It required then that the court's response “be read ... to [the jury] in the presence of the defendant, unless he voluntarily absents himself....” Vaught did not agree to be absent when the answer was given to the jury, so the court did not comply with the statute.
The Kansas Legislature has since amended the statute to allow answers to be given in writing, and it provided that the amendment should be considered a procedural rule that would be applied retroactively. K.S.A.2014 Supp. 22–3420(f). We need not determine whether that provision applies retroactively to Vaught's claim, however, because even if an error took place, we would find that error harmless. As we will next explain, we have found the constitutional error made here to have been harmless—and the test for constitutional harmless error is harder for the State to satisfy than the test for a statutory error.
Our Supreme Court held in State v. Verser, 299 Kan. 776, 788–89, 326 P.3d 1046 (2014), that the defendant's constitutional right to be present at every stage of a criminal trial was violated when the district court sent its answer to a jury question to the jury in writing, without calling the jury into court in the defendant's presence. Even so, we apply a harmless-error test—here, whether the party benefitting from the error (the State) can show beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record. State v. Herbel, 296 Kan. 1101, 1110–11, 299 P.3d 292 (2013) ; State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011).
Kansas courts consider four factors when applying this harmless-error test: (1) the overall strength of the prosecution's case; (2) whether an objection was lodged to the improper communication; (3) whether the communication concerned a critical aspect of the trial or an insignificant one, as well as the manner in which it was conveyed; and (4) the availability of a posttrial remedy to mitigate the error. Verser, 299 Kan. at 789–90.
The State's case on the convictions upheld here was a strong one, and the communications to the jury had little to nothing to do with the convictions upheld. Vaught made no objection to the district court's procedure of sending a written response to the jury. And Vaught did not attempt to raise this issue in a posttrial motion in the district court. We find the error to have been harmless, as our court has found in similar cases. State v. Knighten, 51 Kan.App.2d 417, 431, 347 P.3d 1200 (2015) ; State v. Hunter, No. 110,729, 2015 WL 1310133, at *1 (Kan.App.2015) (unpublished opinion); State v. Smith, No. 109,165, 2015 WL 1122951, at *18 (Kan.App.2015) (unpublished opinion); State v. Roland, No. 109,624, 2015 WL 326410, at *12 (Kan.App.2015) (unpublished opinion); State v. Alvarez, No. 110,710, 2014 WL 7566066, at *8–9 (Kan.App.2014) (unpublished opinion).
Vaught also claims a violation of his constitutional right to a public trial through the written-answer procedure. Our court concluded in State v. Womelsdorf, 47 Kan.App.2d 307, 324–25, 274 P.3d 662 (2012), rev. denied 297 Kan. 1256 (2013), that this does not violate a defendant's right to a public trial. We agree and find no violation of that right.
IV. The District Court Did Not Abuse Its Discretion in Allowing Certain Testimony from Deputy Holte.
Vaught's next issue deals with the testimony of Michael Holte, a Jackson County Deputy Sheriff, who gave some testimony regarding the significance of strangulation in a domestic-violence setting. He said that it greatly increases the chances that a victim will be killed. Vaught complains on appeal that this testimony should not have been admitted.
Holte began his testimony by discussing his presence at the Walmart store, where he arrived to back up other officers and observed Vaught's interaction with them. He also testified that Gomez had told him that Vaught had tried to choke and strangle her.
At that point, the prosecutor asked Vaught about his training in dealing with domestic-violence issues. Holte said that he had received special training and serves as a domestic-violence instructor to other officers at the Kansas law-enforcement training center. He said he had received training specifically about strangulation in such situations.
The prosecutor then asked about “the significance ... of strangulation in a domestic violence situation,” which drew an objection from defense counsel. He objected on hearsay grounds and that Holte hadn't been qualified as an expert. The court said that Vaught “didn't have a timely objection to that,” apparently referring to Holte's qualification as an expert witness, but also noted that Holte “says he's an expert in it and he trains other officers.” The court overruled the objection, and Holte then answered the question by saying that strangulation increases the chance of death:
“[Prosecutor:] Officer, do you remember my question?
“[Holte:] I'm sorry.
“[Prosecutor:] Basically what's the significance of strangulation in a domestic violence type situation?
“[Holte:] Strangulation shows, uh, an extreme lethality factor. Um, when-when there's signs of strangulation the lethality factors go up ten fold.
“[Prosecutor:] Okay.
“[Holte:] Um, there's a ... control aspect ... that the suspect has ... the victim's life in his hands. Um, he can render that person unconscious. You know, he can even kill them at that point in time because they go unconscious ... and that's it .”
The prosecutor proceeded with a follow-up question about the physical effects of strangulation on a victim. After a brief response, defense counsel again objected, but this time the court sustained the objection and told the prosecutor to move on:
“[Prosecutor:] What sort of ... difficulties can a strangulation victim have as far as physically?
“[Holte:] Um, strangulation victims can ... pass out, can go unconscious, even death.... One of the problems with strangulation is that you might have signs of it right away or you might have signs of it a week later.
“[Defense counsel:] Judge, I—I object again.
“The Court: Sustained.
“Let's move on.”
At that point, the prosecutor did as the court directed and “move[d] on”—asking only one more question about what Holte had told Gomez in their own conversation about the need to seek follow-up treatment for her possible injuries. Defense counsel's cross-examination was brief and did not touch on the testimony he had objected to.
Vaught contends it was error to allow this testimony; the State says it was properly admitted and that even if it wasn't, any error was harmless. We need not determine whether the district court erred in admitting the testimony because we agree with the State that even if it was admitted in error, the error was harmless.
The rules of evidence are statutory, so the harmless-error test for statutory violations applies. Under it, we determine whether there is a reasonable probability that the error affected the trial's outcome. State v. McCullough, 293 Kan. 970, 990, 270 P.3d 1142 (2012).
Vaught's response to the State's claim of harmless error is that this testimony about the lethality of strangulation “is likely what gave the jury the idea to consider” Vaught's hands as a deadly weapon. But we have ordered a new trial on the aggravated-assault charge, and we presume that the jury will be instructed in any new trial that the rifle is the only deadly weapon it may consider on that charge. Vaught was not convicted of attempted murder—the charge based on the alleged strangulation—and the State did not retry him on that charge. We conclude that there is no reasonable probability that the error affected the trial's outcome on any of the convictions upheld in this appeal.
V. Cumulative Error Does Not Require a New Trial on the Remaining Convictions.
Vaught also argues that the cumulative effect of several trial-court errors requires that he receive a new trial. But we have ordered a new trial on the aggravated-assault charge, and we have found only one error that involved any of the other charges. A single error, of course, cannot constitute cumulative error. State v. Waller, 299 Kan. 707, 728, 328 P.3d 1111 (2014). The cumulative-error rule does not require retrial on any of the convictions we have left in place.
Conclusion
We find that a new trial is required on the aggravated-assault charge because the district court failed to provide a meaningful response to the jury's question, a question that was significant to its deliberations. We therefore vacate the conviction for aggravated assault and remand that charge for a new trial. The district court's judgment is otherwise affirmed.
* * *
PIERRON, J., dissenting.
I respectfully dissent from the portion of the majority opinion that finds the court's response to the jury's question concerning whether the defendant's hands could be considered deadly weapons to be reversible error. The facts and legal arguments are well set out in the majority opinion and will not be repeated.
The State specifically named the .270 rifle to be the alleged deadly weapon. The State's evidence focused on the rifle and never mentioned the defendant's hands as possibly being deadly weapons. The first time the hands were mentioned as being possible deadly weapons was in the jury's question of whether they could be deadly weapons. Counsel agreed that part of the question was out of left field. The response by the court could have been clearer as suggested by the majority. However, considering the evidence presented at trial, there can be no reasonable belief that the jury was confused about what the dangerous weapon being charged by the State was. Apparently, the jury was satisfied by the court's answer. We should also note that defense counsel did not object to the revised instruction that, under the circumstances, appeared to be the appropriate response. The jury's inquiry about the hands appears to more of a “we have an interesting question” than a serious indication that it was considering the hands to be deadly weapons.
We should affirm.