Opinion
No. 110,860.
2015-01-16
STATE of Kansas, Appellee, v. DaJuan WILKERSON, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge.Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
DaJuan Wilkerson, a prisoner at the Hutchinson Correctional Facility, was convicted of attempted second-degree murder of a corrections officer at the prison, aggravated battery of a state law enforcement officer, and trafficking contraband in a correctional institution. He appeals his convictions and the district court's restitution order. The events leading to Wilkerson's convictions are well known to the parties. This brief overview will suffice.
On July 6, 2010, Kansas Department of Corrections Officers William Kendall and Scott Waters were working together at the prison. When Waters finished locking down his portion of the cell house, he excused himself to use the restroom. Meanwhile, Kendall began letting out inmates for a recreation period. The only inmate out of his cell at this time was Wilkerson.
While Waters was in the restroom, he heard Kendall say, “[T]hat was disrespectful.” When Waters returned from the restroom, he found Kendall on the floor unconscious with serious injuries to his head. Waters looked up and saw Wilkerson walking toward his cell. Other officers arrived and placed Wilkerson in segregation.
Kendall sustained critical injuries to his head, as well as an injury to his shoulder. He was hospitalized for 17 days and lost partial hearing in one ear, as well as other long-term consequences. His injuries forced him to retire. His surgeon opined that the injuries were consistent with being kicked or stomped on, and the force of the blows could have been lethal.
Four blood splatters on Wilkerson's sweat pants matched Kendall's known DNA profile. Investigators searched Wilkerson's cell and found a metal shank, which was contraband.
Wilkerson argues on appeal that the prosecutor repeatedly expressed his personal beliefs about the case and twice elicited testimony about Wilkerson's decision to invoke his right to remain silent. In considering these claims, we first determine whether the prosecutor's comments were outside the wide latitude a prosecutor is allowed in discussing the evidence. If they are, we then determine whether the prosecutor's conduct prejudiced the jury against Wilkerson and denied him a fair trial. See State v. Huddleston, 298 Kan. 941, 946, 318 P.3d 140 (2014). In the second step of this analysis, we consider whether the prosecutor's conduct was gross and flagrant and whether it demonstrated ill will on the prosecutor's part. Further, the State has the burden to prove beyond a reasonable doubt that the misconduct did not affect the outcome of the trial in light of the entire record. State v. Marks, 297 Kan. 131, 135, 298 P.3d 1102 (2013).
Claimed Statements of Personal Opinion
Wilkerson argues that the prosecutor repeatedly expressed his personal opinion regarding Wilkerson's guilt by using the phrases “we believe” and “the State believes.” We review the prosecutor's remarks regardless of whether they were objected to at the time. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012).
Our Supreme Court has repeatedly held that a prosecutor may not state a personal opinion about a defendant's guilt. See State v. Bennington, 293 Kan. 503, 530–31, 264 P.3d440 (2011); State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 (2006). Expressions of the prosecutor's personal opinions are unsworn, unchecked testimony, not commentary on the evidence of the case. State v. Peppers, 294 Kan. 377, 399, 276 P.3d 148 (2012). But prosecutors may make directional statements that serve as “ ‘as an opening for the prosecutor's upcoming summation of the evidence.’ “ 294 Kan. at 399 (quoting State v. Mann, 274 Kan. 670, 689, 56 P.3d 212 [2002] ). Thus, it is permissible for a prosecutor to argue that the evidence demonstrates a defendant's guilt. Peppers, 294 Kan. at 399. But in doing so, the prosecutor must say something akin to “ ‘the evidence shows defendant's guilt’ “ in order to make a statement directional and not an expression of the prosecutor's personal opinion. 294 Kan. at 400.
In Mann, 274 Kan. at 688, our Supreme Court approved a prosecutor's statement in closing argument that “ ‘[t]he [S]tate believes that [the victim] was killed with premeditation intentionally, first degree, and this is why.’ “ There followed a discussion of the evidence pointing to guilt. Similarly, in Bennington, 293 Kan. at 530, the court approved a prosecutor's statement during closing argument: “I want to stand here right now and ask you, don't find him guilty of attempted rape. Find him guilty of rape. That's what he did.' “ The court found that before making this remark, the prosecutor had gone through the elements of rape. It concluded that a review of the entire statement showed the prosecutor was accurately describing the evidence and relating it to the elements of attempted rape versus rape. The court held that the prosecutor's remark did not exceed the wide latitude afforded to the prosecution to argue inferences from the evidence presented. 293 Kan. at 530–31.
We now turn to the comments at issue here. We will save for another day a discussion of whether the jury, knowing the prosecutor has brought these charges and spent considerable time, effort, and taxpayer money bringing the case to trial, might conclude on its own that the prosecutor probably harbors some belief in the defendant's guilt. Here, the prosecutor made the following remarks during his opening statement:
“ We believe that the fact that Mr. Wilkerson was the only inmate out of his cell when the attack occurred and the fact that Mr. Kendall's cognitive abilities, physical abilities were so hampered will show to this jury that it was, if not attempted murder of Mr. Kendall based on the severity of the attack, certainly aggravated battery of a law enforcement officer, in this case a state corrections officer.” (Emphasis added.)
We do not consider this to be an improper argument. In it, the prosecutor does not express his personal opinion of Wilkerson's guilt, but rather expresses his belief in what the facts to be presented at trial will show.
The prosecutor used the phrase again a short time later, prompting an objection from defense counsel:
“[THE STATE:] We believe at the conclusion of the evidence
“[THE DEFENSE]: Objection to the words we believe, judge.
“THE COURT: What either counsel believes is not relevant. You are the sole deciders of the facts in the case and I will instruct you at the end of this case, statements and arguments of counsel are not evidence.
“Proceed, Mr. Gilligan.
“[THE STATE]: Thank you, Your Honor. That the evidence will show beyond a reasonable doubt that it was Mr. Wilkerson that perpetrated the actions on Mr. Kendall and that the actions rose to certainly the possibility of attempted murder and certainly aggravated battery of a law enforcement officer and that he possessed contraband.” (Emphasis added.)
There is nothing improper about these remarks. The prosecutor simply made fair comment on what the evidence would show. There is no expression of the prosecutor's personal opinion of Wilkerson's guilt. The prosecutor is entitled to state that the evidence will demonstrate the defendant's guilt.
Next, during his closing argument, the prosecutor stated:
“[THE STATE:] What transpired is what we're here for. What did we determine? Your determination is going to be based on the evidence that you heard and the state believes that the evidence has shown the following.
“[THE DEFENSE]: Objection again to the categorization of believed, judge.
“THE COURT: It does not matter, ladies and gentlemen, what either attorney believes. It's only what you believe. You are the sole determiner of the facts, and statements and arguments of counsel are not evidence.
“Proceed, Mr. Gilligan.” (Emphasis added.)
Here, the prosecutor reminded the jury that it would have to decide what happened based upon the evidence presented at trial. We find nothing improper in describing to the jury what the prosecutor believes the evidence shows.
Later, after a detailed discussion of the evidence, the prosecutor stated: “Ladies and gentlemen, the state believes that when you look at the fact that lethal force was applied that it's certainly a, a possibility for attempted murder. You've got someone intentionally applying lethal force to another human being. When you apply lethal force you intend to kill it.” (Emphasis added.) We consider this to be fair comment on the evidence and not an expression of the prosecutor's personal opinion regarding Wilkerson's guilt.
A short time later, the prosecutor concluded: “ We believe that the state has shown each element of the crimes that we've alleged and we believe that the defendant's guilty.” (Emphasis added.) We consider the initial remark to be fair comment on the evidence. But the concluding remark “we believe that the defendant's guilty” was improvident and, under our current standards, probably improper.
During his rebuttal argument, the prosecutor stated:
“[THE STATE:] Ladies and gentlemen, the state believes that the evidence shows
“[THE DEFENSE]: Again he's using the words believe, judge.
“THE COURT: Again, ladies and gentlemen, do not consider whatsoever what counsel believe. It is totally your decision to make. Statements and arguments of counsel are not evidence.
“[THE STATE]: That if you find that Mr. Wilkerson did not intend to kill Sergeant Kendall, certainly the evidence is there to show that DaJuan Wilkerson caused great bodily harm. You've heard the injuries.” (Emphasis added.)
This final remark was fair comment on the evidence produced at trial.
Taken as a whole, and with the exception of the prosecutor's remark in closing that “we believe that the defendant's guilty,” we do not conclude that the prosecutor was trying to convince the jury to convict Wilkerson based simply upon the prosecutor's assertion that Wilkerson was, in fact, guilty.
With respect to the one clear statement of personal opinion, we note that the trial court repeatedly reminded the jury of the irrelevance of the prosecutor's personal beliefs. Further, the court instructed the jury: “Statements, arguments and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. If any statements are made that are not supported by evidence they should be disregarded.” The prosecutor's single expression of personal opinion did not prejudice the jury and deny Wilkerson a fair trial. See State v. Simmons, 292 Kan. 406, 422, 254 P.3d 97 (2011). The prosecutor's sole expression of his personal opinion on the issue of guilt was not gross and flagrant and was not the product of ill will. Finally, when considering the evidence as a whole, we are satisfied that this one remark did not change the outcome of the trial. Multiple witnesses testified that Wilkerson was the only inmate out of his cell when Kendall was attacked. The laboratory analysis of blood splatters on Wilkerson's sweatpants revealed a DNA profile that matched Kendall's known DNA profile. We find no reversible error.
Direct Examination
Wilkerson contends that on two occasions the prosecutor improperly elicited testimony regarding his silence at the time of arrest. During the State's direct examination of Mark Mora, a special agent for the Kansas Department of Corrections, the following exchange took place:
“[THE STATE:] Were you able to go up to interrogation and find out what inmate was being held there?
“[MORA:] I did eventually find out who it was that they had placed in segregation as a possible suspect. I think that was at the time I was conducting the cursory search of the area up in B–2 cell house.
....
“[THE STATE:] And were you able to get any information from the suspect?
“[MORA:] No.”
Defense counsel objected, and the district court sustained the objection. Outside the presence of the jury the court inquired whether Wilkerson had waived his Miranda rights. He had not. The judge stated that he considered the intent of the prosecutor's question was to determine “whether he was interviewed and whether he invoked his rights to remain silent. That's the intent I got from the question.” The judge then overruled Wilkerson's motion for a mistrial and instructed the jury:
“Ladies and gentlemen of the jury, prior to your going to the jury room I sustained an objection to a question asked by Mr. Gilligan, there was no response. I will reiterate to you statements and arguments of counsel are not evidence and [are not] to be considered by you as evidence in the case, and you will totally disregard that question and any inferences from that question ‘cause I have sustained it as an improper question.”
As the prosecutor's examination continued, this exchange followed:
“[THE STATE:] Once you were advised there was an inmate in segregation did you contact the officer in segregation to determine who it was?
“[MORA:] I was already notified who it was before I made an attempt in the segregation unit to speak with him.”
Wilkerson's counsel objected again. The district court instructed the jury to “totally disregard the response of the officer in regards to that question.” Then, outside of the presence of the jury, the judge commented:
“THE COURT: This is a trained officer. The trained officer is well aware that I just sustained an objection in regards to, questions in regards to the defendant's invocation of his rights. He does not in a response bring up the issue that before he went to interview the defendant. I cannot make myself any clearer on this. I do not want to try this case again if there is conviction on a mistrial. And you do not speak about interviews when someone has invoked their Miranda rights or they've indicated they are not speaking.”
Wilkerson's counsel again moved for a mistrial, arguing that the witness' answer was “goaded by the state.” The court found “no indication that [the prosecutor] goaded that response,” denied the motion, and admonished the jury: “Ladies and gentlemen, before you went out the second time the officer made a nonresponsive statement in regards to a question asked by Mr. Gilligan. You will totally disregard the last response made by the officer in this case.”
Relying on Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), Wilkerson argues on appeal that the State may not elicit evidence at trial of a defendant's silence at the time of arrest. The State concedes that the prosecutor's initial question was improper and a violation of Doyle. But the State contends that the prosecutor's second question was not improper. The witness' response was simply unresponsive. We agree and find that the prosecutor posed a narrow question to Mora: Did he contact the officer in the segregation unit to determine the identity of the prisoner being held there? Instead of simply responding that he had been previously notified of the prisoner's identity, Mora added that he had been notified prior to “an attempt in the segregation unit to speak with [Wilkerson].” This portion of Mora's statement was not responsive to the prosecutor's question. The district court judge found no indication that the prosecutor “goaded” Mora's improper response, and the record contains no evidence to the contrary.
With regard to the prosecutor's initial exchange with Mora, we apply the same standards of review discussed earlier. In this instance, the prosecutor did not repeat or emphasize the improper question, and he did not specifically inquire about Wilkerson's silence at the time of arrest. We do not consider the question to be gross and flagrant. Further, the prosecutor's question did not demonstrate ill will on his part towards Wilkerson. The question was posed in an apparent attempt to chronicle for the jury Mora's progress as he investigated the attack on Kendall. Finally, the prosecutor's question did not prejudice Wilkerson or deny him a fair trial. The district court admonished the jury to disregard the question. Further, the evidence at trial outlined earlier satisfies us that this single question did not affect the outcome of the trial so as to require us to reverse Wilkerson's convictions.
In Camera Inspection of Records
Wilkerson claims the district court violated his right to be present at all critical stages of the proceedings and his right to a public trial when the court held an ex parte evidentiary hearing with only the prosecutor present.
We apply the abuse of discretion standard of review when considering the trial court's decision regarding a discovery request. State v. Kessler, 276 Kan. 202, 212, 73 P.3d 761 (2003). When the question of whether the trial court complied with specific statutory requirements for admitting evidence, our interpretation of the applicable statute is de novo. See State v. Stafford, 296 Kan. 25, 47, 290 P.3d 562 (2012).
At 2:22 p.m. on August 19, 2013, the day before trial commenced, the State filed its motion pursuant to K.S.A. 22–3212(e), see K.S.A.2013 Supp. 22–3212(g), to exclude potential K.S.A. 60–422 evidence. The State asserted that it possessed a document “that is and should be private and irrelevant to the case but involves matters pursuant to K.S.A. 60–422. Should the document become public record, it would embarrass the witness but be inadmissible in evidence.” The State asked the district court to use the procedure outlined in K.S.A. 22–3212(e) to examine the document in camera.
The State's certificate of service for the motion stated that the prosecutor had placed a copy of the motion in defense counsel's box, apparently the courthouse mailbox assigned to defense counsel. There is no indication a copy of the motion was delivered to the court in chambers. Thus, it is unlikely the district court was aware of the motion before the trial began the following morning. The notice of hearing stated the motion would be taken up at commencement of the jury trial or as soon thereafter as the court directs.
The following day, at the beginning of Wilkerson's jury trial, both parties sought orders in limine. The State moved in limine to exclude references or testimony regarding a criminal charge pending against Sergeant Master Robert Raigoza of the Kansas Department of Corrections. Raigoza's testimony related to his involvement in initially restraining Wilkerson and in collecting the sweatpants containing the blood splatters later tested and found to match Kendall's DNA profile.
The district court granted the State's motion in limine over Wilkerson's objections. The State made no mention of its motion for an in camera inspection of records filed the afternoon before trial, and there is no indication that the court conducted an in camera inspection of Raigoza's personnel file or was even aware of the motion until sometime later.
Following Wilkerson's convictions he moved for dismissal or for a new trial. One of his grounds for relief was that his counsel was not aware of the State's motion for an in camera inspection of Raigoza's personnel file until after the trial had concluded. At the hearing on the motion, defense counsel told the court she was not aware of the motion “until I went up to the DA's office and was handed that matter.” She asserted that she did not have a mailbox at the courthouse, and the motion was not served on her as claimed by the State. She stated: “If the Court did indeed inspect evidence at the request of the State without the defendant's knowledge that violates his right to a fair trial.” The court stated: “The court made a ruling in camera and the matters within the file were not relevant to this proceeding.” The court did not state when that inspection took place, and defense counsel did not ask. Nor did she ask whether the prosecutor was present during the inspection.
The district court denied the motion, and Wilkerson filed his notice of appeal on October 8, 2013. While this appeal has been pending, the district court entered and filed with the clerk of the district court the following order:
“NOW on this 10th day of June, 2014, the Department of Corrections is hereby directed to provide to the District Court the personnel file of Robert Raigoza, Jr. for inclusion in the record on appeal. The file remains sealed unless viewing is approved by the undersigned or a Judge of the Court of Appeals.”
On appeal, Wilkerson argues that the district court violated his rights to be present and to a public trial by “ruling on an evidentiary matter in camera with only the prosecutor present.”
K.S.A. 22–3212 deals with the discovery and inspection of relevant documents “which are or have been in the possession, custody or control of the prosecution.” K.S.A. 22–3212(e), see K.S .A.2013 Supp. 22–3212(g) (same), states:
“Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, enlarged or deferred or make such other order as is appropriate. Upon motion, the court may permit either party to make such showing, in whole or in part, in the form of a written statement to be inspected privately by the court. If the court enters an order granting relief following such a private showing, the entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.”
At some point the district court inspected Raigoza's personnel record and determined that “the matters within the file were not relevant to this proceeding.” There is nothing in the record to suggest that the prosecutor was present during the court's examination of Raigoza's personnel records. Without such a record, we presume the action of the trial court was proper. State v. Goodson, 281 Kan. 913, 919, 135 P.3d 1116 (2006).
Further, we find no statutory provision or case authority supporting the proposition that a defendant has the right to participate in the court's review of evidence pursuant to K.S.A. 22–3212(e) or K.S.A.2013 Supp. 22–3212(g). We trust Wilkerson is contending that taking a matter under advisement violates his right to be present at all critical stages or his right to a public trial. The in camera inspection of Raigoza's personnel file was the functional equivalent of the court taking a matter under advisement after hearing the positions of the parties.
Here, in examining Raigoza's personnel file the district court had to make the threshold determination whether the records relating to Raigoza's termination were relevant before deciding whether their probative value outweighted their prejudicial effect. Before the court's inspection of Raigoza's personnel file, and likely before the court was even aware of the motion filed the afternoon before, the parties had the opportunity to address Raigoza's circumstances when they argued the State's motion in limine at the beginning of the trial. Wilkerson's counsel argued that Raigoza had been charged with aggravated robbery and “it is a fact that that person is no longer employed because of the aggravated robbery charge.” Though Raigoza had not yet been convicted, Wilkerson's counsel argued, “I would think it would be relevant as to [his] truth or veracity as a witness.” The court rejected this argument, stating, “Mr. Raigoza has the same presumption of innocence your client does.”
Although Wilkerson did not prevail on the issue, his counsel argued the merits of being able to inquire about the charge against Raigoza and the consequences to his employment. So even though Wilkerson's counsel did not have a copy of the State's motion for an in camera inspection at the time, she addressed this central issue for the court to consider before the court examined the records. We also note that Wilkerson does not contend on appeal that the district court erred in sustaining the State's motion in limine prohibiting testimony or comments regarding Raigoza's circumstances.
The prosecutor should have put Wilkerson's counsel on notice of the motion when it was filed. His certificate of service is evidence of his recognition of his obligation to do so. But through some unexplained error a copy of the State's motion did not find its way to defense counsel until after the trial. But in the end, this error turned out to be harmless given the opportunity Wilkerson's counsel had to address the underlying issue at the commencement of the trial. We find no error by the court in handling this matter.
Restitution
Wilkerson contends the district court abused its discretion at the sentencing hearing on October 4, 2013, when the court ordered Wilkerson to pay as restitution any expenses arising from Kendall's medical treatment and therapy rather than ordering him to pay restitution in an amount certain. In the portion of the court's journal entry relating to “Costs Ordered,” the corresponding blank for “Total Restitution” read “TBD.” The court noted that “[a] restitution order will be filed separately at a later date.”
On November 8, 2013, the State submitted a proposed restitution order to Wilkerson pursuant to Supreme Court Rule 170 (2014 Kan. Ct. R. Annot. 278). Wilkerson's counsel did not respond. On December 9, 2013, the district court entered a restitution order without a further hearing and without any waiver from Wilkerson. The order required Wilkerson to pay restitution in the amount of $177,681.17, consisting of $83,058.72 for Kendall's medical expenses, $93,080.24 for workers compensation, and $1,542.21 of other expenses.
Restitution is part of a criminal defendant's sentence. If the amount of restitution due is not available at the time of the initial sentencing hearing, the district court has the authority to retain jurisdiction to determine the proper amount. But the amount of restitution may only be set by the sentencing judge with the defendant present in open court, unless the defendant waives the right to be present. State v. Hall, 298 Kan. 978, 986–97, 319 P .3d 506 (2014). Although there are no “ ‘ “magic words” ‘ “ required from the court to continue jurisdiction for a later restitution determination, there must be something in the record reflecting that the court is holding sentencing open for a subsequent restitution decision. State v. Charles, 298 Kan. 993, 1002–03, 318 P.3d 997 (2014).
In Charles, 298 Kan. at 1002–03, our Supreme Court vacated a restitution order because the district court failed to set a specific restitution amount at the sentencing hearing and failed to maintain jurisdiction over the matter by continuing the sentencing hearing to a later date; the district court ordered Charles to pay restitution “as contained within the presentence report,” and the presentence report stated the amount of restitution was “to be determined.” Sometime later, the district court ordered restitution in a specific dollar amount without a hearing and without the defendant having waived his right to be present.
The Charles court held that Charles' sentencing was complete at the conclusion of the sentencing hearing.
“Had the judge intended to have that amount included in Charles' restitution order, he could have continued sentencing to a later hearing date, preserving subject matter jurisdiction, and then finalized the missing restitution figure at a continued hearing in open court with Charles present. See Hall, 298 Kan. 978, Syl. ¶ 1. In the alternative, had the judge stated his intention to continue the proceeding and Charles validly waived his right to be present in open court for further hearing, the judge could have finalized restitution by written order.” 298 Kan. at 1003.
At the time of Wilkerson's sentencing hearing, the State had not yet determined Kendall's total expenses incurred as a result of his injuries. Wilkerson's PSI stated that restitution was yet to be determined. The district court neither continued the matter to a later date nor did it seek a waiver from Wilkerson so the court could resolve the issue by a written order. Accordingly, we must vacate the district court's restitution order.
Affirmed in part and vacated in part.