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State v. Petty

Court of Appeals of Kansas.
Jul 27, 2012
281 P.3d 597 (Kan. Ct. App. 2012)

Opinion

No. 105,251.

2012-07-27

STATE of Kansas, Appellee, v. Richard PETTY, Appellant.

Appeal from Reno District Court; Richard Rome, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Reno District Court; Richard Rome, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.

MEMORANDUM OPINION


PER CURIAM.

Richard Petty asks us to overturn his aggravated assault and criminal possession of a firearm convictions. He claims his right to confront one of the witnesses was abridged when the court allowed a recorded police interview of the witness to be shown to the jury, while the witness at trial claimed that he could not remember many of the facts of the case. Because the witness here was able to testify about some of the facts of the case, we hold that he was available for cross-examination and, therefore, Petty was not denied his constitutional right of confrontation.

Petty also contends his sentence was illegally increased because his criminal record was not proved to a jury beyond a reasonable doubt. Going further, Petty argues the court could not sentence him to the aggravated sentence from the sentencing grid without proving the aggravating factors beyond a reasonable doubt. Kansas Supreme Court precedent to the contrary controls these points, and we deny Petty any relief on them.

Finally, for the first time, Petty raised the issue that his speedy trial rights were violated at sentencing. The trial court summarily ruled Petty had waived his right to a speedy trial without first making any findings of fact. We will not speculate about this, but rather remand the case to the district court to make findings on this point.

Summary of the facts.

Richard Petty met with Rickie Caudillo in a parking lot in January 2009. Caudillo noticed that Petty kept sticking his hands in his pocket. When Caudillo asked what was in Petty's pocket, Petty pulled out a pistol and put it in Caudillo's face. Caudillo backed up towards a truck as Petty began shooting at him. Caudillo felt something hit his foot or shoe. Ultimately it was determined that Caudillo was hit by a bullet. As Caudillo ran from Petty, Petty shot at Caudillo two times.

The State charged Petty with aggravated assault with a firearm against Caudillo and criminal possession of a firearm. After Petty pled not guilty to the charges, the district court set a trial date of July 28, 2009. This matter was later continued at Petty's request and rescheduled for trial October 13, 2009. Again, at Petty's request, the trial court granted another continuance and the matter was reset for January 19, 2010.

According to Petty, he was ready for trial on January 19, 2010, but on that day, Petty told the State of potential witnesses he may call to testify about his place of residence. Petty says that in response the State requested a continuance to investigate these witnesses even though Petty believed no investigation was necessary because the witnesses were not alibi witnesses. The record indicates the State requested a continuance so that it could investigate Petty's late alibi notice. There is no record of the proceedings held on January 19, 2010. Despite Petty's claim the additional witnesses were not alibi witnesses, the record does reveal Petty did, in fact, file a notice of alibi on January 21, 2010. In early February, the trial was rescheduled for April 5, 2010. The jury trial was held on April 5, 2010, and Petty was found guilty on both charges.

At sentencing, Petty argued for the first time that his statutory right to a speedy trial had been violated. Petty contended that the 58 days from June 1, 2009, and July 28, 2009, and 80 days between January 19, 2010, and April 5, 2010, should be assessed to the State. The State countered that Petty waived his right to a speedy trial by proceeding to trial without making a motion to dismiss on speedy trial grounds. The State also noted that Petty had yet to make such a motion and the State had not been informed that the motion would be argued at sentencing. The State also claimed Petty was being held on another case in addition to the present charges.

The district court held Petty waived his ability to raise the speedy trial issue by proceeding to trial. The court made no findings of fact or conclusions of law on the merits of Petty's speedy trial claim.

Confrontation of witness.

Petty claims the district court violated his Sixth Amendment right to confront his witnesses when it allowed the State to introduce Charles Rorie's video interview with the police. Petty argues that because Rorie was unable at trial to recall the events that occurred on January 11, 2009, he was unavailable for cross-examination. In Petty's view, the district court therefore violated his right to confront Rorie when it allowed the State to introduce Rorie's previous statement to the police. We view this as a question of law over which we exercise unlimited review. State v. Leshay, 289 Kan. 546, 547, 213 P.3d 1071 (2009).

A brief review of the facts is helpful at this point. At trial, Caudillo, the victim in this case, testified he could positively identify Petty as the person who shot at him twice. No other person present at the shooting testified about this. Martelli Costello, a witness for the State, picked Petty up from the scene. Costello said he noticed that Petty had a gun when he got into Costello's car, but did not testify that he saw Petty shoot the gun. Kreighton Morris, who was also in the car when Costello picked Petty up, testified he heard the gunshot but said he did not notice that Petty had a gun. Morris said he thought he saw Petty with a gun for the first time when he entered the car.

The only witnesses other than Caudillo that provided direct testimony that Petty shot the gun were the law enforcement officers involved in the case. Detective John Moore testified that after the shooting, he interviewed Rorie, a witness present at the shooting. The interview was video/audio recorded. Moore testified that Rorie told him Petty had a gun during the shooting and that he was waving it around at everyone. Moore said Rorie told him Petty went after one man, later identified as Caudillo, with a gun and the first shot was then fired. Officer Darren Truan also testified that Rorie told him Petty had a gun and he was pointing it at everyone.

Rorie then testified that he saw Petty outside the apartment on the evening of the shooting. But when asked whether Petty had anything, Rorie responded that he could not remember. Rorie recalled talking to the police that evening, but when asked whether he told police that he saw Petty with a gun, Rorie stated, “I don't remember.”

The court then granted a recess so Rorie could review his video interview with the police. The defense objected to this on the basis of hearsay. The defense counsel explained that because Rorie said he could not remember the facts, he could not effectively cross-examine Rorie with regard to the video. Defense counsel argued that showing the video violated Petty's right to confrontation. The State responded that Rorie was present and available for cross-examination. Ultimately the district court allowed Rorie to review his recorded statement to the police officers.

When Rorie returned to direct examination, he agreed that on the video he told Moore that Petty had a gun. When asked whether he told Moore that he saw Petty waving a gun around, Rorie agreed that he told Moore this on the video but said he did not remember. Rorie said he remembered running, but that was all he remembered. Rorie testified he did not see the shot and did not remember seeing Petty with a gun, but agreed that on the video he said he saw Petty with a gun.

At this point, the State requested the court play the video interview to the jury. The defense objected. The district court refused to show the video.

The defense was then given the opportunity to cross-examine Rorie. On cross-examination Rorie testified he did not remember what happened on January 11, 2009. Defense counsel asked, “So today I can't ask you what you remember or any recollection of that?” Rorie responded, “If I answered any questions today, it wouldn't be the truth because I really don't remember.” Rorie said he remembered talking to the police that night, but could not remember what was said. Rorie said he remembered a shooting, but he did not remember a lot about it.

After further argument on the point, the district court held the State could cross-examine Rorie by offering his prior inconsistent statement based on State v. Stinson, 43 Kan.App.2d 468, 227 P.3d 11 (2010). The district court ultimately allowed the jury to view the video of Rorie's interview with the police. In our view, three cases are pertinent here. State v. Young, 277 Kan. 588, 601–02, 87 P.3d 308 (2004); State v. Osby, 246 Kan. 621, 632–33, 793 P.2d 243 (1990); State v. Lomax & Williams, 227 Kan. 651, 608 P.2d 959 (1980). These three cases show a classic statement of a rule of law that has been clarified over the years. Lomax held that where a witness claimed a complete loss of memory as to the identification of the defendants and the events that occurred on the date of the crime, it was reversible error for the district court to admit that witness' prior statements given to the police. 227 Kan. at 661. It was a fundamental denial of the right to cross-examination because such a witness was unavailable for cross-examination. Then, our Supreme Court in Osby refined the Lomax standard for deciding whether a witness was available. The Osby court held that if the witness while testifying at trial answers some questions concerning the subject matter of his prior statement, yet refuses to answer others, the declarant is considered available for purposes of cross-examination and his prior statement may be admitted into evidence. See 246 Kan. at 632–33. Finally, in Young, the court held a witness is deemed available for cross-examination when he testifies to some facts regarding an incident but has a lack of memory of other facts regarding the incident. 277 Kan. at 601–02.

Applying these principles here, we find that Rorie was available for cross-examination, so that Petty's right to confrontation was not violated when the court admitted Rorie's prior statement. It is clear that at trial Rorie testified to several distinct facts regarding the evening of January 11, 2009. Rorie remembered that he went to Moore's house that evening and that there were “a bunch of people” there. Rorie recalled seeing Petty outside the apartment as he was heading towards the parking lot. Rorie remembered talking to the police that night. Rorie also recalled running and testified he did not see the gunshot. It was only when he was asked whether he saw Petty with a gun that Rorie indicated that he could not remember.

Simply put, because Rorie was available for cross-examination, the officer's testimony regarding Rorie's prior statements did not violate Petty's right to confront the witnesses against him. We pause here to point out that we think the court was misguided when it relied upon Stinson. The Stinson court held that the district court violated Stinson's constitutional rights when it refused to allow his attorney to impeach a witness with prior inconsistent statements. 43 Kan.App.2d at 481. The court did not rule that the witness in that case was unavailable for cross-examination. 43 Kan.App.2d at 481–82.Stinson did not deal with a confrontation issue; it dealt with an evidentiary matter. That is, whether impeachment evidence should be admitted. There is a factual distinction as well in that the witness in Stinson did not testify that he could not recall the underlying facts of the case, but instead provided testimony that differed from his prior testimony. Stinson simply involved the defense attorney's ability to impeach a witness when he provides inconsistent facts, not a witness' failure to recall the facts of the case, which is what occurred here.

We see no reason to grant relief to Petty on this point.

Petty's two sentencing claims.

Petty argues two points to us concerning his sentence. First, he contends the district court violated his constitutional rights when it used his prior convictions to increase his sentence without requiring these prior convictions to be proven to a jury beyond a reasonable doubt. Secondly, Petty contends the district court violated his constitutional rights when it sentenced him to the aggravated number in the sentencing range without proving the aggravating factors beyond a reasonable doubt.

Our Supreme Court has taken a contrary view in a recent case that controls the issue here. In State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011), the court upheld State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), where the court refused to extend Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to hold that an increased sentenced based on prior convictions is unconstitutional. The McCaslin court held that the imposition of enhanced sentences based on a defendant's criminal history was proper.

The McCaslin court also held that an appellate court lacks jurisdiction to review a presumptive sentence. Citing State v. Johnson, 286 Kan. 824, 840–42, 190 P.3d 207 (2008), the court agreed that under K.S.A. 21–4704(e)(1), the law grants a judge discretion to sentence a criminal defendant to any term within the presumptive grid block as determined by the conviction and the defendant's criminal history. The court lacks jurisdiction to consider a challenge to a presumptive sentence even if the sentence is to the longest term in the presumptive grid block for the conviction. 291 Kan. at 730. Petty was sentenced to 26 months' imprisonment, the aggravated number within the presumptive guideline for his aggravated assault with a firearm conviction. Based on McCaslin and because the district court imposed a sentence that fell within the presumptive guideline for Petty's crime, we lack jurisdiction to review Petty's challenge to his sentence.

Speedy trial violation.

Petty argues he did not waive his right to a speedy trial by proceeding to trial. We first note our standard of review over Petty's claim. The appellate court has unlimited review over the district court's legal rulings regarding violations of a defendant's speedy trial rights. The question of whether a defendant acquiesced in any delays in bringing a case to trial, thus tolling the statutory speedy trial requirement, is a factual determination. This court reviews the factual determinations of the district court to determine whether they are supported by substantial competent evidence. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009).

A brief review of the record indicates that in this case, a total of 308 days passed between the date of Petty's arraignment on June 1, 2009, and the first day of trial on April 5, 2010. Because Petty was not released on bond on the date of his arraignment, the State had 90 days to bring him to trial in order to avoid a speedy trial violation. See Vaughn, 288 Kan. at 143–44.

While it is true that a defendant waives his right to a speedy trial by a plea of guilty in the district court, according to State v. Rodriguez, 254 Kan. 768, Syl. ¶ 2, 869 P.2d 631 (1994), no Kansas case has ever ruled that a defendant must raise his speedy trial issue prior to the trial on the merits. We have been taught by our Supreme Court that because the State alone is authorized to bring a criminal prosecution to trial it is the State's obligation to ensure that the defendant is provided a speedy trial within the statutory limits. “A defendant is not required to take any affirmative action to see that his or her right to a speedy trial is observed.” Vaughn, 288 Kan. at 144. We are not prepared to rule as a matter of law that Petty waived his ability to raise a speedy trial violation simply by proceeding to trial. Because the district court held Petty waived the ability to raise his speedy trial claim, the district court made no findings of fact and conclusions of law on the merits of the claim. When the record on appeal does not support a presumption that the district court found all the facts necessary to support the judgment, this court will remand the case for additional findings and conclusions. Vaughn, 288 Kan. at 143. In Vaughn, our Supreme Court said it was “not in a position to render a factual decision” regarding the defendant's and State's involvement in the continuance that led to a possible violation of the speedy trial right. 288 Kan. at 150. The court therefore remanded for the district court to conduct a hearing on the question whether the defendant acquiesced in the continuance.

Similarly, the facts must be established here concerning the January 19 continuance in order for the court to determine whether Petty's right to a speedy trial was violated. In this appeal, Petty takes responsibility for 175 days of the days included in the speedy trial period. That is, from July 28, 2009, to January 19, 2010. The time period at issue runs from January 19, 2010, to April 5, 2010, the date the trial actually began.

In the absence of findings of fact and conclusions of law on the speedy trial issue, we are in no position to speculate about whether Petty's constitutional right was violated. We will therefore remand to the district court to make findings of fact and conclusions of law on this speedy trial issue.

We affirm Petty's conviction. The sentencing issue is dismissed for lack of jurisdiction, and the speedy trial issue is remanded to the district court for further determination consistent with this opinion.


Summaries of

State v. Petty

Court of Appeals of Kansas.
Jul 27, 2012
281 P.3d 597 (Kan. Ct. App. 2012)
Case details for

State v. Petty

Case Details

Full title:STATE of Kansas, Appellee, v. Richard PETTY, Appellant.

Court:Court of Appeals of Kansas.

Date published: Jul 27, 2012

Citations

281 P.3d 597 (Kan. Ct. App. 2012)