Appeal from Seward District Court; Clint B. Peterson, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Seward District Court; Clint B. Peterson, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., GREEN and BUSER, JJ.
Hassen Ahmedin appeals his conviction and sentence for rape, arguing juror misconduct, prosecutorial misconduct, and violation of statutory and constitutional rights when he was denied an interpreter for posttrial and sentencing proceedings. Concluding that Ahmedin's claims of error are either baseless or harmless, we affirm his conviction and sentence.
Factual and Procedural Background
On June 25, 2009, Ahmedin had sexual intercourse with J.Z. at her boyfriend's apartment, claiming the encounter was consensual. J.Z. left the apartment immediately after the encounter, met with the police, gave a statement, and submitted to a sexual assault examination. Ahmedin was charged with rape and criminal restraint and bound over for trial. In November 2009, a jury trial was conducted but resulted in a hung jury.
At a second jury trial in February 2010, Ahmedin testified in his own defense. He indicated that J.Z. was the aggressor and she never asked him to stop. Following the encounter, J.Z. asked him for $20, but he said he had no money. He then got up to take a shower, and after he got out of the shower J.Z. smiled and winked at him as he left the room. Shortly after he had finished taking a shower, the police arrived at the residence.
The jury found Ahmedin guilty of rape. At the hearing on his motion for new trial and sentencing, the district court declined to have an interpreter present, reiterating its previously expressed belief that Ahmedin adequately understood English. The motion for new trial based on jury misconduct was denied, and Ahmedin was sentenced to a presumptive 155 months' imprisonment. Ahmedin timely appeals.
Further factual detail is provided below to the extent necessary to our analysis of the issues framed.
Did the District Court Abuse Its Discretion in Denying Ahmedin's Motion for New Trial Based upon Juror Misconduct?
Although Ahmedin cited two instances of juror misconduct in his motion for new trial, on appeal he argues only one: that a juror failed to disclose that she was engaged to an assistant county attorney. We review an order denying a motion for new trial for an abuse of discretion. State v. Mathis, 281 Kan. 99, 103–04, 130 P.3d 14 (2006). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
If a defendant's constitutional rights have been violated during a trial, a judge's discretion to deny a motion for a new trial is limited. A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial. State v. Jenkins, 269 Kan. 334, 338, 2 P.3d 769 (2000).
The record shows that after the jury was sworn in and J.Z. began her testimony, defense counsel reported to the court that he had just learned that juror M.D. was engaged to an assistant county attorney. The defense objected to M.D. remaining on the jury, questioning whether she could remain unbiased. The district court overruled the objection, noting defense counsel should have been more careful in asking questions during the voir dire process. During voir dire of the group in which M.D. was called, none of the jurors were asked—by the State or the defense lawyers—whether they knew or were related to the attorneys, law enforcement officers, or any witnesses. In fact, Ahmedin's attorney asked only broad questions about their understanding of reasonable doubt, the State's burden of proof, and whether they or a family member had ever been accused of a crime.
During the second day of trial, the court again addressed M.D.'s presence on the jury. At this time, defense counsel argued that the defense had disclosed their relationships with potential jurors to the State before trial and yet the State had failed to advise them of M.D.'s relationship to an assistant county attorney. The State argued that judges' and attorneys' spouses served on juries all the time and that no bias had been shown. Again the court reiterated that the defense made choices regarding the questions that were asked of potential jurors. The judge also noted that M.D.'s father was a defense attorney in town and overruled the defense's objections.
After the defendant testified, the jury was excused, but M.D. was questioned about her ability to be impartial. She advised the court that she was engaged to an assistant county attorney but she would not be influenced by that relationship in deciding the case. She also testified that she had not had contact with her fiance since the trial started, except for seeing him in the courthouse, and that they had not discussed the case. Finally, she stated that she had not heard anything about this case prior to being called for jury service.
K.S.A. 22–3423(1)(e) permits the district court to grant a mistrial if a juror's false statement during voir dire prevents a fair trial. In the few Kansas cases addressing a juror's failure to disclose information, the Kansas Supreme Court has stated that “ ‘[j]uror misconduct in civil and criminal cases is not a ground for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party's rights. The party claiming prejudice has the burden of proof.’ [Citation omitted.]” State v. Hopkins, 257 Kan. 723, 725, 896 P.2d 373 (1995) (denial of mistrial when juror in rape case failed to disclose that his ex-girlfriend had been raped); see also State v. Weaver, No. 97,921, 2009 WL 2242420, at *3–4 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1104 (2010) (mistrial not warranted when the jury foreman failed to disclose during voir dire that he used to be a police officer).
Our review of Kansas authorities on this question reveals that we have not found reversible juror misconduct unless a juror gives a false or deceptive answer to a direct inquiry. When a prospective juror gives a false or deceptive answer to a question pertaining to his or her qualifications with the result that counsel is deprived of further opportunity to determine whether the juror is impartial, and the juror is accepted, a party deceived thereby is entitled to a new trial even if the juror's possible prejudice is not shown to have caused an unjust verdict. Kerby v. Hiesterman, 162 Kan. 490, Syl. ¶ 3, 178 P.2d 194 (1947); see also Peoples Bank of Pratt v. Integral Ins. Co., 251 Kan. 809, 815, 840 P.2d 503 (1992) (error in denying new trial in wrongful death action where juror gave false information on juror questionnaire and plaintiffs' counsel did not disclose to court or defense counsel that one of the firms representing plaintiffs was actively representing the juror in civil litigation).
Our Supreme Court has not been impressed with allegations that a juror has merely failed to volunteer information that may be relevant to his or her qualifications. In Hopkins, the court reasoned:
“[The prospective juror] did not make a false statement or give misleading information. He was asked if he had heard everything that had occurred. He was not asked if he would have responded to any of the questions asked of other potential jurors. What he was asked by the prosecution was: ‘Is there anything or something that sticks out in your mind that you want to talk about?’
“Based on that question, the defendant asked the trial judge to find that juror misconduct occurred. During voir dire defendant's counsel asked no questions of this juror in the general area complained of. Potential jurors are not required to be mind readers. Juror misconduct must be based on more than the failure to volunteer information a potential juror speculates or surmises is important to counsel. The trial judge did not err in finding there was no juror misconduct.” (Emphasis added.) Hopkins, 257 Kan. at 726, 896 P.2d 373.
Here, the juror did not misrepresent or provide false or misleading information during voir dire. She was never asked if she was related to any of the attorneys or anyone in law enforcement. There has been no showing of prejudice. We must conclude that Ahmedin's claim of juror misconduct must fail given the current state of Kansas law on this subject.
Although neither party has cited to federal or out-of-state authorities, we note in passing that some courts have recognized that juror bias may sometimes be inferred despite no affirmative misstatements by the juror. See, e.g., McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556–57, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (Blackmon, J., concurring) (a party is entitled to a posttrial hearing with the opportunity to establish “actual bias or, in exceptional circumstances, that the facts are such that bias is to be inferred”); Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O'Connor, J., concurring) (“[T]here are some extreme situations that would justify a finding of implied bias ... includ[ing] a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.”); see also United States v. Polichemi, 219 F.3d 698, 704–05 (7th Cir.2000), cert. denied531 U.S. 1168, 121 S.Ct. 1131, 148 L.Ed.2d 997 (2001) (15–year employee of United States Attorney's Office held biased as a matter of law); Manuel v. State, 541 P.2d 233, 237 (Okla.Crim.App.1975) (prospective juror's failure to disclose his marriage to employee of district attorney's office in rural area required new trial); State v. Sellhausen, 338 Wis.2d 286, 809 N.W.2d 14 (2012) (member of judge's family cannot be found to be per se prejudiced). Because any such implied bias doctrine has not been recognized in Kansas, and because it appears to be inconsistent with our Supreme Court's clear statement of applicable law in Hopkins, we are not inclined to consider implied bias here.
For these reasons, we reject Ahmedin's claim of juror misconduct.
Did the District Court Abuse Its Discretion in Denying Ahmedin's Motion for New Trial Based upon Prosecutorial Misconduct?
Ahmedin also contends he was deprived of a fair trial due to the prosecutor's comments in closing argument. Specifically, Ahmedin focuses on the prosecutor's final comment:
“There is one thing, the last thing. If she would not have told, a rapist would not have been caught, and you would not have the opportunity today to find this man guilty for what he did to [J.Z.], and I ask that you do so.”
In his brief, Ahmedin suggests that both the prosecutor's reference to Ahmedin as “a rapist” and his reference to the jury's “opportunity” to find him guilty constituted prosecutoral misconduct.
In its ruling on Ahmedin's motion for new trial, the district court held that reversible error could not be based on a case of misconduct when no contemporaneous objection was made. The court also relied on the two-step process for analyzing prosecutorial misconduct. The court first concluded the prosecutor's statement referring to Ahmedin as a rapist exceeded the latitude granted to a prosecutor when discussing the evidence and that the State's evidence was not overwhelming. The court then determined, however, that there was no corroboration for Ahmedin's version of events and that Ahmedin's witness, Said Goodir, was “so uncredible [ sic ] as to be itself credible evidence of the defendant's guilt.” Consequently, the court found the prosecutor's use of the term “rapist” did not deny Ahmedin a fair trial and a new trial would not be permitted because of the lack of a timely objection.
The district court's analysis of the allegation of prosecutorial misconduct was fundamentally incorrect. The Kansas appellate courts have repeatedly stated that an objection is not required to preserve claims of prosecutorial misconduct that occurs during opening statement or closing argument. See, e.g., State v. Miller, 293 Kan. 535, 550, 264 P.3d 461 (2011). The same standard of review applies whether or not a timely objection was made. State v. McReynolds, 288 Kan. 318, 322–23, 202 P.3d 658 (2009).
When improper comments were allegedly made by a prosecutor in opening statement or closing argument, appellate review employs a two-step analysis. First, the appellate court must decide whether the prosecutor's statements go outside the wide latitude allowed to prosecutors in discussing the evidence. Second, if misconduct occurred, the court must determine whether the improper remarks amount to plain error by prejudicing the jury and depriving the defendant of a fair trial. Miller, 293 Kan. at 550, 264 P.3d 461.
Although there are no published Kansas opinions discussing the propriety of using the term “rapist” in closing argument, the Supreme Court decision in State v. Scott, 286 Kan. 54, 78, 183 P.3d 801 (2008), provides some helpful guidance for analysis. In Scott, a capital murder case, the prosecutor referred to Scott as a “murderer” and “killer” several times in closing argument. 286 Kan. at 80, 183 P.3d 801. After reviewing the context of the references, the Court concluded that some of the comments were proper and some were improper. In delineating between the proper and improper comments, the Court reasoned:
“The consistent rule to be taken from the cases is that a prosecutor may refer to the defendant as a murderer or killer in the course of arguing the evidence shows the defendant committed the murder. See [State v.] Cravatt, 267 Kan. , 332–34 [, 979 P.2d 679 (1999) ]. However, where such statements imply the prosecutor believes something other than the evidence shows the defendant to be a murderer, such as the prosecutor's belief the defendant ‘looks like a murderer’ or has ‘cold-blooded killing eyes,’ or the statements do not relate to the evidence but are simply made to inflame the jury, such as a comment telling the jurors they are ‘eight feet from a killer,’ the argument will be held improper. See [State v.] Scott, 271 Kan. , 114, [21 P.3d 516,cert. denied534 U.S. 1047, 122 S.Ct. 630, 151 L.Ed.2d 550 (2001) ]; [State v.] Hooker, 271 Kan. [52,] 67, [21 P.3d 964 (2001) ]; [State v.] McCray, 267 Kan. [339,] 347–48, [979 P.2d 134 (1999) ].” Scott, 286 Kan. at 81–82, 183 P.3d 801.
Both parties' closing arguments focused on the issue of whether J .Z. consented to sex with Ahmedin and whether her claim of rape was false. In his closing, defense counsel discussed why J.Z. might make a false charge of rape. Counsel cited J.Z.'s fears her boyfriend, Samir, would find out about the encounter. Counsel pointed out that in J.Z.'s 911 call, she reported Ahmedin “keeps trying to have sex with me” and it was the 911 operator who first used the word “rape.” Counsel argued everything after the 911 call was a snowball that kept growing. Defense counsel noted that during the investigation process, J.Z. would cry when others were present and not cry when she was by herself. He pointed out that J.Z. testified she bit and scratched Ahmedin, but he had no such injuries when he was arrested. Finally, counsel cited inconsistencies in J.Z.'s various statements and the fact that J.Z. took no action to call anyone after Ahmedin fondled her and then left to smoke a cigarette. In conclusion, defense counsel argued that the case was all about covering up a bad decision by J.Z.
The prosecutor's final closing argument addressed defense counsel arguments. After discussing a couple of specific points, the prosecutor began a litany of the consequences J.Z. had to encounter after reporting the rape. He talked about J.Z. having to come to court repeatedly to testify and be cross-examined. If she had not reported, the prosecutor stated, she would not have had to call her mother and tell her she was raped; she would not have had to tell her boyfriend of the rape; she would not have been subjected to 7 hours of interviews and an invasive physical examination. According to the prosecutor: “All of this to perpetrate a fraud? I think not .”
After summarizing all J.Z. had to go through to prosecute the case, the prosecutor, in his very last statement to the jury, made the statement quoted above.
The majority of the prosecutor's closing statement was refuting arguments of defense counsel and addressing the evidence, and the prosecutor's last comment was made in the course of arguing the evidence showed Ahmedin committed the rape. The comment was certainly not as egregious as that criticized in Scott, and we conclude it was not improper.
If we were to reach the second step of the prosecutorial misconduct analysis, we must then consider additional factors. Was the misconduct so gross and flagrant as to deny the defendant a fair trial? Did the remarks show ill will oil the part of the prosecutor? And finally, was the evidence against the defendant of the nature that the misconduct would likely have little weight in the minds of the jurors? Scott, 286 Kan. at 78, 183 P.3d 801. Before the third factor may override the first two factors, the appellate court must be confident that both the harmless error tests of K.S.A. 60–261 and the federal constitutional harmless error rule are satisfied. State v. Tosh, 278 Kan. 83, Syl. ¶ 2, 91 P.3d 1204 (2004).
Here, the isolated nature of the singular reference to the attacker as a “rapist,” the lack of any direct and express connection to the defendant, and the restricted use to defend the victim's report of the incident convinces us that this was not gross and flagrant misconduct, and it does not appear motivated by ill will. Although we concede that this was a case turning on credibility and not one of overwhelming evidence of guilt, we also note the district court's observation that neither the testimony of Ahmedin or J.Z.'s boyfriend was at all credible. Therefore, even if we were to move to the second step of analysis of prosecutorial misconduct, we are not convinced that the reference to a “rapist” denied Ahmedin a fair trial. We fail to see a reasonable possibility that the misconduct contributed to the verdict. See State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011).
Did the District Court Violate Ahmedin's Statutory or Constitutional Rights When It Conducted Posttrial and Sentencing Proceedings Without an Interpreter?
On appeal, Ahmedin contends that the district court erred in finding he did not require an interpreter for posttrial proceedings, thus violating K.S.A. 75–4351(b) and his constitutional due process right to be present at all critical stages of the proceeding. Ahmedin was 34 years old and of Somali descent and had moved to the United States about 5 years before this trial. When J.Z. and Ahmedin talked on the day of the incident, they spoke English.
The arrest affidavit indicates that police interviewed Ahmedin after J.Z.'s report and that the officer had no real difficulty communicating with Ahmedin during the initial portion of the interrogation. At some point, however, “Ahmedin decided he could no longer understand” the officer when the Miranda warnings were given. (A recording was made of this interview and reviewed by the district judge, but it is not included in the record on appeal.) The arresting officer testified that after arriving at the apartment, he called out from in front of the door, asking Ahmedin to come out; the officer made the request in both English and Spanish. Ahmedin responded immediately to the officer's demand. During the arraignment, defense counsel advised that he had talked with Ahmedin “as best I could” and that Ahmedin's family advised him that he was “not as fluent in English.”
The court noted in the initial arraignment that although Ahmedin acted as if he did not understand English, he had been able to speak and communicate during the first appearance. During the arraignment, Ahmedin repeatedly indicated he did not understand the charges and he was not guilty, but he told the court his name and how old he was. He also confirmed he lived in Georgia but had moved here and was working here for 6 months. After the prosecutor read the charges, the court asked Ahmedin if he needed an attorney, but Ahmedin stated he did not understand and he did not speak English. When asked if he knew what a lawyer was, Ahmedin said, “Yeah, I want a translator, too.” Defense counsel reported he had some conversations with Ahmedin about Ahmedin's family and their contact numbers. However, the family advised counsel that Ahmedin was not fluent in English. When the court attempted to question Ahmedin, the defendant appeared not to understand the court's questions. Following a continuance, the arraignment was held with an interpreter.
Ahmedin was appointed a translator by the court for both jury trials. When he appeared for sentencing, however, Ahmedin's counsel inquired whether an interpreter would be attending the hearing. The court explained that, based on his previous factual findings, an interpreter was appointed for trial in “the abundance of caution.” However, the court believed Ahmedin understood English enough to go forward and that the State had already expended substantial money on interpreter services for Ahmedin. Ahmedin's counsel did not object to the court's ruling, although the court apparently treated the inquiry as an objection by noting the Court of Appeals could disagree with him, reverse the sentence and order a resentencing hearing. Constitutional Standard
The Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution require that a criminal defendant must be present at all critical stages of a criminal proceeding. State v. Engelhardt, 280 Kan. 113, 122, 119 P.3d 1148 (2006). Sentencing is one of the critical stages. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Because the right to be present at a proceeding necessarily includes the ability to understand the process, the need to provide interpreters to ensure this constitutional right has been recognized. State v. Calderon, 270 Kan. 241, 245, 247, 13 P.3d 871 (2000); see also United States v. Cirrincione, 780 F.2d 620, 634 (7th Cir.1985).
Ahmedin cites to Calderon as support for his claim that failure to appoint an interpreter during the sentencing hearing was structural error and reversible. In Calderon, however, there was no dispute that the defendant required an interpreter. 270 Kan. at 246, 13 P.3d 871. And subsequent cases seem to retreat from Calderon's use of a structural error analysis. See Engelhardt, 280 Kan. at 124, 119 P.3d 1148 (limiting Calderon's structural error analysis to facts of that case); Shaha v.State, 44 Kan.App.2d 334, 337, 236 P.3d 560 (2010), rev. denied 292 Kan. 965 (2011) ( Calderon standard not applicable when challenge is to adequacy of interpreter).
Federal courts have recognized that the constitutional right of a defendant to an interpreter is a matter within the trial court's discretion. In determining whether a defendant is constitutionally entitled to an interpreter, the court “must balance the defendant's rights to confrontation and effective assistance against the public's interest in the economical administration of criminal law.” Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir.1989).
On this score, federal precedent instructs that we ask only whether there is “ ‘a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.’ [Citation omitted.]” U.S. v. Hasan, 526 F.3d 653, 665 (10th Cir.2008). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Sallahdin v.Gibson, 275 F.3d 1211, 1235 (10th Cir.2002).
Without having the DVD of the police interview, and being limited to the cold transcript, it is difficult to judge the level of Ahmedin's ability to speak English. The judge made his findings based on the DVD and Ahmedin's reactions in the courtroom, which are lost in a cold record. Ahmedin asserts there is no substantial competent evidence to support the finding he adequately understood English. However, we find little in the record to support a finding that Ahmedin's English skills were such that an interpreter was constitutionally required. Although Ahmedin's trial counsel expressed some difficulty in communicating with his client, these statements were tenuous at best. After the district court stated an interpreter would not be appointed for the sentencing hearing, defense made no further effort to document Ahmedin's level of understanding of English. There was no effort to establish Ahmedin's level of education or that counsel could not communicate with Ahmedin without an interpreter; in fact, there is no evidence that counsel ever used an interpreter in his private meetings with Ahmedin. The record is not inconsistent with a conclusion that Ahmedin was exaggerating his limitations with the English language.
Although it is better practice to provide an interpreter when the issue is in doubt, Ahmedin has failed to establish the lack of an interpreter at his sentencing hearing rose to a constitutional violation. We simply cannot conclude that, but for the error claimed, the result of either the motion for new trial or the sentencing would have been different. The motion for new trial was not dependent on any contribution from Ahmedin but rather turned on the alleged juror misconduct; and the sentencing was straightforward, with Ahmedin receiving a presumptive term of imprisonment that is otherwise not subject to appeal. See State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008). In the last analysis, Ahmedin's failure to get an interpreter at his hearing does not undermine our confidence in the outcome of that proceeding in any way. See Sallahdin, 275 F.3d at 1235. Statutory Standard
Even if Ahmedin was not entitled to an interpreter under constitutional principles, he contends the district court's failure to appoint an interpreter during sentencing violated the requirements of K.S.A. 75–4351(b).
Kansas statutes have been adopted to recognize the constitutional requirements discussed in Engelhardt. K.S.A. 22–3405(1) states that a defendant in a felony case “shall be present at the arraignment, at every stage of the trial ..., and at the imposition of sentence, except as otherwise provided by law.” Likewise, K.S.A. 75–4351(b) states that a qualified interpreter shall be appointed “ for persons whose primary language is one other than English ” in court proceedings that could result in a penal sanction against the person. (Emphasis added.)
Although K.S.A. 75–4351(b) states that an interpreter “shall” be appointed to someone whose primary language is not English, the Kansas Supreme Court has repeatedly held that failure to appoint an interpreter before taking a statement from an accused was not reversible error. In State v. Zuniga, 237 Kan. 788, 791–92, 703 P.2d 805 (1985), the court found that 75–4351(e), which required appointment of an interpreter before any attempt to interrogate or take a statement in a criminal case, did not require suppression of a confession made in the absence of an interpreter. The court reasoned that the statute was designed to create authority for government entities for the selection, appointment, and compensation of interpreters, and did not contain any sanctions for violations of its provisions. 237 Kan. at 791, 703 P.2d 805; see also State v. Nguyen, 251 Kan. 69, 75, 78, 833 P.2d 937 (1992) (following Zuniga.)
Given our Supreme Court's indication that the statutory mandates have no sanctions for violations, we decline to conclude that Ahmedin is entitled to a remand for posttrial and sentencing hearings. Nevertheless, we again note that the statutory mandate should not be ignored, and that where there is doubt as to a defendant's proficiency in English, the better practice is to honor the statutory mandate and appoint an interpreter.