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State v. Mills

Court of Appeals of Kansas.
Oct 3, 2014
335 P.3d 710 (Kan. Ct. App. 2014)

Opinion

No. 109,948.

2014-10-3

STATE of Kansas, Appellee, v. Leonard MILLS, Appellant.

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed October 3, 2014. Affirmed.Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed October 3, 2014. Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.

MEMORANDUM OPINION


PER CURIAM.

Pursuant to a tip from an informant, officers at the Hutchinson Correctional Facility searched Leonard Mills' cell. Inside, they found a bare razor blade and a small packet of marijuana. Subsequently, a jury convicted Mills of two counts of traffic in contraband in a correctional facility. Mills appeals from those convictions and raises issues of sufficiency of the evidence, instructional error, and prosecutorial misconduct. Finding no reversible error, we affirm his convictions.

Factual and Procedural History

In September 2011, the State charged Mills with two counts of traffic in contraband in a correctional institution. These charges stemmed from an incident that occurred in the Hutchinson Correctional Facility.

The case proceeded to jury trial. Sergeant Daniel Perugini, an officer at the Hutchinson Correctional Facility, testified about the events leading up to Mills' charges. Perugini testified that he received training on how to search an inmate's cell and on what exactly constitutes contraband-Perugini explained that marijuana (a controlled substance) and a razor blade (a weapon) each constituted contraband. He then explained that he and Corporal Jason Gaines conducted a search of Mills' cell in order to determine whether Mills possessed any contraband. Perugini searched the desk, cabinet, and trash can while Gaines searched the bed and a shelf. In a homemade desk organizer, Perugini uncovered a taped packet of paper “the same size as a Sweet ‘N Low packet” that contained what officers later confirmed to be marijuana. Gaines' search uncovered a razor blade. The officers handed the suspected marijuana and the razor blade over to the internal investigation department within the correctional facility.

On cross-examination, Perugini testified that prior to the discovery of the razor blade and marijuana, Captain Chuck Graham had instructed him to search Mills' cell for possible controlled substances. Perugini also indicated that small messages, some about the size of a sugar packet, that are passed between inmates are commonly referred to as a “kite.” Regarding the specific packet (or kite) uncovered in Mills' cell, Perugini noted that it was sealed with packing tape but that he opened it with scissors because he felt “a lump of something inside of it.” Perugini also testified that the packet containing the marijuana did not appear to have been opened previously. Perugini did not attempt to uncover the origin of the packet because it was outside the scope of his role in searching the cell. Perugini testified that he also found broken razor parts somewhere in Mills' cell but could not recall exactly where in the cell they were located. He further explained that inmates are permitted to possess intact razors provided they are “not on a razor restriction.” Mills himself was not on such a restriction.

Perugini did not, on redirect examination, recall how long he spent searching Mills' cell, but he did recall that he nearly missed the packet because “it was filed in amongst Sweet ‘N Low packets as if it was a Sweet ‘N Low packet.” Perugini also explained that although inmates are permitted to have intact razors, “[o]nce [a razor] has been altered in any way it's then considered contraband.” On recross examination, Perugini noted that the razor blade found in Mills' cell was an intact blade and that “[t]he razor blade removed from the head [of the razor] is considered a weapon.” However, he acknowledged that the other razor pieces found in Mills' cell had not been fashioned into any kind of weapon.

The State next called Gaines, the other officer who searched Mills' cell, to testify. Gaines stated that he discovered the razor blade at issue “under [Mills'] bed in a box” that contained miscellaneous paperwork. There were other boxes and a small drawer under the bed, as well. Gaines testified that no inmate is permitted to possess a loose razor blade in the facility. Gaines wrapped the blade in toilet paper and relinquished it to the internal investigation department.

On cross-examination, Gaines clarified that the box containing the razor blade was closed when he first encountered it. Gaines admitted that he never photographed, videotaped, or otherwise documented the search.

Next, Mark Mora, the special agent from the Kansas Department of Corrections who investigated the contraband discovered in Mills' cell, testified. Mora stated that he received both the marijuana and “a razor blade out of a shaving razor” and that both are considered contraband. He further testified that an inmate may receive an exception to the contraband policy “with the authorization of the principal administrator or the warden”—an authorization that Mills lacked. Mora also explained facility protocol for searching inmates' cells and noted that, at the time of the search, the facility lacked the type of surveillance cameras that would allow cell searches to be easily recorded. Mora stated that the inmate is generally removed from his cell during a search and that neither he nor other inmates can access the cell during that time. In regard to Mills' case, Mora testified that he field tested the marijuana and also sent it to the Kansas Bureau of Investigation; the results ultimately confirmed that the substance was marijuana.

Mora testified that he personally did not know whether other razor pieces were recovered from Mills' cell. However, Mora noted that during the interview Mills suggested the razor blade came from his shaving razor after he stepped on and broke it. Mills offered no explanation for the marijuana and denied any knowledge of it.

On cross-examination, Mora explained that although he never interviewed either Perugini or Gaines, he relied on Perugini's written report when pursuing the investigation. Mora testified that he never read the “shakedown and search” report and that the marijuana came to him in a plastic baggie stored within an evidence envelope rather than the original packaging from Mills' cell. In fact, Mora did not recall seeing any package with packing tape. Mora could not recall whether Mills requested further testing such as fingerprinting on the marijuana; however, Mora stated that he would not have performed such testing even if Mills had asked him. Mora also could not remember if Mills requested any surveillance footage from the day of the search. Regardless, Mora did not review any surveillance footage.

Ultimately, Mora admitted that the extent of his investigation was collecting the items that Perugini and Gaines discovered in Mills' cell and discussing them with Mills. He reiterated that he was unaware of whether other razor parts were discovered in Mills' cell. Upon review of the shakedown and search report, Mora testified that broken razor pieces (other than the razor blade) were discovered in Mills' cell but were destroyed; Mora stated that although he would want such items preserved for evidence, broken razor pieces are not contraband “[u]nless they were fashioned into a makeshift weapon of some type.” Mora also acknowledged that Mills' version of how the loose razor blade ended up in his cell was consistent with the shakedown and search report.

On redirect, Mora explained that he did not review or preserve any video from other places in the facility because the video only archives for 5 days, and more than 5 days had passed between the search and Mora's conversation with Mills. Mora also testified that the delay between the search and the interview occurred because he was working on other cases in the same time period. Mora noted that inmates are informed of what constitutes contraband. Mora also clarified that the original packaging that had held the marijuana was in the envelope along with the plastic baggie.

When the State rested, the district court read two stipulations into the record. The first stated that Mills was “confined to the custody of the Kansas Secretary of Corrections and housed in the Hutchinson Correctional Facility” on the day of the search. The second stated that the evidence was properly preserved for trial and that the vegetation discovered in Mills' cell was marijuana. After the stipulations, Mills moved for a judgment of acquittal, which the district court denied.

Mills' first witness was Graham, who ordered the search of Mills' cell on the evening in question. Graham testified that during the inmates' evening meal an informant told him that there was contraband in Mills' cell. On cross-examination, Graham explained that he investigates every tip he receives regardless of how vague or “cryptic” it may be. He also explained that he did not know the informant's name because of the facility's large size. Graham reiterated that the only individual with access to Mills' cell was Mills himself. Aside from receiving the initial report from the informant, however, Graham was not involved in Mills' case.

Next, Mills testified on his own behalf. In regard to his razor, he explained that he broke his disposable razor after he dropped it on the floor and stepped on it the morning of the search. Because “[t]here's no set policy how to dispose of a razor,” Mills simply put the broken pieces in the trash can. Mills then went about his usual routine until the evening meal, when an inmate called Buckles “stopped and handed [Mills] a kite.” Mills testified that he pocketed the kite without looking at it because Buckles had “given [him] kite after kite after kite.” Mills explained that Buckles “wanted [him] to help him with his debts” and used the kites to offer Mills sexual favors in exchange for money. Mills described a kite as a note contained within another sheet of paper. The outer sheet is taped shut in such a way that the inner note will be hidden from the officers in the facility and will remain intact when the kite is opened. Contraband, on the other hand, is “not usually hidden or enclosed” because an inmate “want[s] to see what's there” when purchasing contraband. Mills testified that he never opened the kite from Buckles but instead put it on his desk organizer before he “laid down and took [his] evening nap.” Within about 10 minutes, the officers arrived to cuff him and move him to segregation while they searched his cell.

Mills admitted that he never informed Mora that the kite originated from Buckles because “[y]ou don't snitch” in prison. Mills also noted that he did not “really believe there was a box of, of papers as [Gaines] described” under his bed. But even if there was such a box, Mills testified that he did not hide a razor blade in it, noting that “you go to jail for that.”

On cross-examination, Mills testified that he elected against opening the kite because of Buckles' repeated harassment, but he acknowledged that he did not throw it in the trash. Mills also noted that although he keeps boxes of other items (namely clothing) under his bed, he does not always keep them closed when he is not using them. On redirect examination, Mills reiterated that he told Mora about breaking his razor, as well as stating that he asked Mora to review the video “that's in the cell house watching [his] cell” because he believed that video would show Buckles passing him the kite. Mills provided no information regarding other inmates who might have planted or otherwise caused the contraband to be in his cell.

After the defense rested and the district court again denied Mills' motion for acquittal, the district court and the parties discussed jury instructions. Prior to trial, Mills had submitted proposed jury instructions to the district court. The instructions he submitted for each trafficking charge proposed that the instruction include additional language requiring that the State prove “[t]hat Leonard Mills was not authorized to have possession of the contraband in question. The district court presented both parties with its proposed instructions, which did not include Mills' additional language. When asked for objections, Mills objected to the instruction that defined possession but not the instructions for the two trafficking charges. The district court overruled Mills' objection and proceeded with the trial.

Ultimately, the jury found Mills guilty of both charges. The district court sentenced Mills to a controlling departure sentence of 122 months' imprisonment to run concurrent with Mills' preexisting life sentence.

Mills timely appealed.

ANALYSIS

There was sufficient evidence to convict Mills of traffic in contraband.

On appeal, Mills first argues that the State provided insufficient evidence to convict him of traffic in contraband. Concerning the razor blade, Mills contends that the State failed to prove that it constituted contraband; concerning the marijuana, Mills contends that the State failed to prove that the marijuana was not provided to him by the facility health authority.

When the sufficiency of the evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in the light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support the conviction, this court generally will not reweigh evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).

Under the relevant statute, traffic in contraband in a correctional institution is

“introducing or attempting to introduce into or upon the grounds of any correctional institution ... or taking, sending, attempting to take or attempting to send from any correctional institution ... or any unauthorized possession while in any correctional institution ... or distributing within any correctional institution ... any item without the consent of the administrator of the correctional institution.” K.S.A.2010 Supp. 21–3826(a).

Pursuant to statute, the Secretary of Corrections “adopt[s] rules and regulations for the maintenance of good order and discipline in the correctional institutions” in Kansas. K.S.A.2010 Supp. 75–5210(f). Included among these rules and regulations is K.A.R. 44–2–103, which describes trafficking in contraband and delineates 14 categories of items that are considered contraband. Specifically, contraband “shall include but not be limited to” items such as “knives, tools, and materials such as sandpaper, whet stones or similar items used to make such knives or tools” and “narcotics or other controlled substances ... which [were] not dispensed or approved by the facility health authority.” K.A.R. 44–2–103(b)(3), (8). However, in a later portion of the regulation, contraband is instead defined as:

“(1) Any item, or any ingredient or part of or instructions for the creation of the item, that is not issued by the department of corrections, sold through the facility canteen, or specifically authorized or permitted by order of the secretary of correction or warden for use or possession in designated areas of the facility; or

“(2) any item that, although authorized, is misused in a way that causes some danger or injury to persons or property.” K.A.R. 44–12–902(a)(1), (2).

Mills interprets K.S.A.2010 Supp. 21–3826(a) and K.A.R. 44–2–103 as requiring that all contraband fit into one of the regulation's enumerated categories. However, the statute clearly applies to “any item” that is possessed, distributed, or otherwise handled “without the consent of the administrator of the correctional institution.” K.S.A.2010 Supp. 21–3826(a). Similarly, the list in K.A.R. 44–2–103(b) is clearly nonexhaustive, stating that contraband “shall include but not be limited to ” the categories present in the regulation. (Emphasis added.) Here, Perugini clearly stated that intact razors are permitted—and therefore not contraband—provided that the inmate in question is not on a razor restriction that prohibits his use of a razor. But Perugini, Gaines, and Mora each testified that bare razor blades not contained within a razor are contraband. In fact, Perugini explained that a razor becomes contraband as soon as it is altered from its original form. He further explained that a bare razor blade constitutes a weapon, which is banned from the facility. And Mills himself essentially admitted that he knew the razor blade constituted contraband when he acknowledged “you go to jail for” possessing one.

This testimony clearly demonstrated that although Mills was authorized to possess an intact shaving razor, the razor blade became contraband at the time it was removed from the intact razor. A rational factfinder could, based on this evidence, conclude that Mills was not permitted to retain the loose blade. Therefore, sufficient evidence supports the conviction for trafficking the razor blade.

Turning to the issue of the marijuana, Mills argues that because the State provided no evidence indicating the marijuana was not provided to Mills by the facility health authority, the conviction cannot stand. Indeed, K.A.R. 44–2–103(b)(8) states that contraband is in part “narcotics or other controlled substances ... which [were] not dispensed or approved by the facility health authority.” Mills contends that the marijuana cannot be contraband without some evidence indicating that it was not approved by the health authority.

But Kansas does not permit or recognize prescriptions of marijuana for medicinal purposes. See K.S.A.2010 Supp. 21–36a06(b)(3); State v. Cooper, 48 Kan.App.2d 671, Syl., 301 P.3d 331 (2013) (Privileges or Immunities Clause of the United States Constitution does not bar prosecution for possession of marijuana even though the defendant has a legal prescription from a state that has legalized medical marijuana.). Mills' contention that the health authority at the correctional facility would dispense marijuana, then, runs afoul of the present statutory scheme regarding controlled substances.

Moreover, circumstantial evidence supports the conclusion that the marijuana was not dispensed to Mills. Perugini and Mora each testified that marijuana is contraband. Moreover, Mora stated that Mills had not received any exemptions from the general contraband rules. Mills' statements at trial also implied that he understood the marijuana to be contraband; his defense was that he was unaware that Buckles' kite contained contraband—something he never told Mora for fear of being viewed as a “snitch.”

A verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). In the instant case, a factfinder could reasonably infer that the marijuana in Mills' cell was not dispensed by the facility health authority and was instead contraband. In fact, no facts or circumstances even so much as suggest that the marijuana originated from the facility's health authority.

As explained above, a rational factfinder could, based on the evidence, conclude beyond a reasonable doubt that both the razor blade and the marijuana at issue constituted contraband. Therefore, sufficient evidence exists to find Mills guilty of traffic in contraband in a correctional facility.

The jury instructions regarding the elements of traffic in contraband were not clearly erroneous.

Mills proposed that both jury instructions contain additional language requiring the State to prove “[t]hat Leonard Mills was not authorized to have possession of the contraband in question. He argues that the district court erred by not including the proposed language. Mills contends that excluding the proposed language is tantamount to directing the jury that his possession was unauthorized.

As a preliminary issue, Mills never objected to the district court's decision to exclude his proposed language. As such, this court's standard of review requires that it determine whether the instruction is clearly erroneous. See K.S.A. 22–3414(3). This inquiry employs two steps. First, this court must determine whether there was error at all. State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). To make this determination, the court must “consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” 295 Kan. 506, Syl. ¶ 4. If such error is found, this court must then employ the second step and determine whether it is “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred”; if the court is so convinced, it must reverse the conviction. 295 Kan. 506, Syl. ¶ 5.

The two instructions at issue are identical except for the count number and the specific contraband named. As an exemplar, Instruction 6 provides:

“In Count One Leonard Mills is charged with the crime of traffic in contraband in a correctional institution. Leonard Mills pleads not guilty.

“To establish this charge, each of the following claims must be proved:

“1. That Leonard Mills intentionally possessed marijuana in a correctional institution;

“2. That Leonard Mills did so without the consent of the administrator of the correctional institution; and

“3. That this act occurred on or about the 25th day of April, 2011, in Reno County, Kansas.

‘ “Correctional institution’ means any state correctional institution or facility.”

Although not required, use of the PIK instructions “is strongly recommended” and “should be the starting point in the preparation of any set of jury instructions.” State v. Mitchell, 269 Kan. 349, Syl. ¶ 4, 7 P.3d 1135 (2000). When the facts of the case support using an unmodified PIK instruction, it is not error for the district court to use that instruction. See State v. Bryant, 285 Kan. 970, 983, 179 P.3d 1122 (2008) (finding no error in using PIK instruction based on “the straightforward facts of th[e] case”); State v. Hebert, 277 Kan. 61, 87, 82 P.3d 470 (2004) (“Modifications or additions [to a PIK instruction] should only be made if the particular facts of a case require it.”).

The instruction given in this case is nearly an exact replica of PIK Crim.3d 60.27. In fact, the only difference between the PIK Crim.3d 60.27 instruction and the one provided to the jury is that the district court inserted the appropriate verbs and other descriptive terms into the instruction. In short, the district court followed the PIK instruction, and nothing in the record suggests that the particular facts of this case warranted deviating from or otherwise altering the PIK instruction.

Moreover, Mills' argument on appeal hinges on the assumption that the “unauthorized” language in K.S.A.2010 Supp. 21–3826 is completely missing from the given instruction. However, the concept of authorization is embraced by the second element, which requires that the State prove that Mills possessed the contraband “without the consent of the administrator of the correctional institution.” K.S.A.2010 Supp. 21–3826. “Authority” is defined as the “right or permission to act.” Black's Law Dictionary 158 (10th ed.2014). Similarly, “consent” is “agreement, approval, or permission regarding some act or purpose.” Black's Law Dictionary 368 (10th ed.2014). Accordingly, someone who acts without consent—that is, without approval or permission—necessarily acts without authority. Although legally sound, adding the proposed language concerning Mills' lack of authority only serves to repeat the second element in different terms.

The instructions provided to the jury that excluded the proposed language are legally and factually sound. As such, the district court did not err in so instructing the jury

The jury instruction did not exceed the offense charged in the complaint.

Mills next argues that the jury instruction regarding the marijuana exceeded the complaint in that it included a means of committing traffic in contraband—namely, possession—that was not alleged in the charging document. Because Mills failed to object to this instruction at trial, this court again reviews the instruction for clear error. See K.S.A. 22–3414(3).

The charge in question alleged that Mills “introduce[d] or attempt[ed] to introduce upon the grounds of a correctional institution, to-wit: Hutchinson Correctional Facility, possessed in said correctional institution an item, to-wit: a controlled substance known as marijuana, without the consent of the administrator of the correctional institution.” In contrast, the first element of the jury instruction reads only that Mills “intentionally possessed marijuana in a correctional institution” without mention of introduction of the marijuana. Mills contends that, as written, the complaint fails to allege possession at all, rendering the jury instruction erroneous.

As a preliminary matter, a review of the record indicates that the district court instructed the jury using language very similar to that Mills proposed. The proposed instruction reads that Mills “had possession of marijuana while in the Hutchinson Correctional Facility” with no mention of introduction or attempted introduction. The actual instruction used, to which Mills now assigns error, stated that the jury must find that Mills “intentionally possessed marijuana in a correctional institution.” Both this court and our Supreme Court have held that “[w]hen defendant's requested instruction is given to the jury, the defendant cannot complain the requested instruction was error on appeal.” State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011); see also State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012) (holding that “a defendant cannot challenge an instruction ... when there has been on-the-record agreement to the wording of the instruction at trial”); State v. Hargrove, 48 Kan.App.2d 522, 553–54, 293 P.3d 787 (2013) (discussing the difference between applying the invited error rule to tactical jury instruction decisions versus instructions that “were the product of inadvertence or negligence” when the erroneous instruction implicates a defendant's constitutional rights).

During the trial, the district court retired to chambers to review the parties' proposed jury instructions and compile a final set of instructions for review. The district court reviewed the final instructions with the parties, and, as previously mentioned, Mills failed to object to the wording of the element at issue. Because the district court and parties agreed to the wording at trial—wording that Mills himself proposed—the invited error doctrine applies and bars Mills from now asserting that this instruction constitutes error.

But Mills' argument fails on its merits, as well. A complaint or information “must set out the specific offense alleged against the defendant in order to inform the defendant of the nature of the accusation against him or her and to protect the defendant from being convicted on the basis of facts that were not contemplated in the initial charges.” State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009). Accordingly, jury instructions must “be confined to issues made by the pleadings and should not be broader or narrower than the information.” 289 Kan. at 802. Accordingly, any instruction that includes elements of a crime that were excluded from the complaint or information is erroneous. 289 Kan. at 802.

However, “an information should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.” State v. Micheaux, 242 Kan. 192, 199, 747 P.2d 784 (1987). In such a reading, “ ‘the elements of the offense may be gleaned from the document as a whole.’ “ State v. Huerta–Alvarez, 291 Kan. 247, 255, 243 P.3d 326 (2010).

A close reading of the instant complaint reveals that it in fact alleges possession. Although the document is poorly worded, it clearly alleges that Mills both introduced and possessed the marijuana at the facility. In his brief, Mills claims that the alleged possession is merely the factual basis underlying the charge, not the charge itself. However, those facts that support the charge are set off with the phrase “to-wit” whenever they appear in the complaint. In contrast, the phrase “[p]ossessed in said correctional institution” is not set off by “to-wit,” indicating that it is a separate portion of the charge rather than part of underlying factual basis. It therefore appears that possession is indeed an element of the crime charged.

Moreover, even if the complaint cannot be read as charging possession, the facts of this case distinguish it from Trautloff and other cases where the breadth of the jury instruction required reversal. An overbroad jury instruction—that is, one that instructs on an element of the crime that is not charged in the complaint—may be excused “only where the substantial rights of the defendant are not prejudiced.” Trautloff, 289 Kan. at 802. However, “ ‘prejudice will not be found where the challenged instructions are supported by the evidence, do not charge an additional crime, do not surprise the defendant, and do not mislead the defendant in preparation of his defense.’ “ State v. Wade, 284 Kan. 527, 536, 161 P.3d 704 (2007).

In Trautloff, the instruction encompassed “the broadest possible theory of misconduct under the statute,” while the complaint itself charged the defendant very narrowly. 289 Kan. at 802. Although overwhelming evidence existed to find the defendant guilty under the broad jury instruction, the evidence tending to prove the narrowly tailored charge “was minimal and circumstantial.” 289 Kan. at 803. Because our Kansas Supreme Court found “a real possibility that the jury would have rendered a different verdict if the district court had instructed only” the elements as charged, the court reversed the conviction at issue. 289 Kan. at 803.

Similarly, in State v. Odell, No. 105,311, 2013 WL 310335, at *2–5 (Kan.App.2013) (unpublished opinion), this court reversed a conviction for traffic in contraband when the State charged the defendant with either introduction or distribution of contraband but the district court instructed the jury solely on possession. This court reasoned that although “evidence of both possession and introduction of [the contraband] was substantial, there was, at best, minimal circumstantial evidence that [the defendant] distributed this contraband to others within the facility.” 2013 WL 310335, at *5. Because a properly instructed jury “may not have concluded that [the defendant] distributed the contraband,” the defendant suffered prejudice sufficient to require reversal. 2013 WL 310335, at *5. In Wade, our Supreme Court reversed a conviction based on an erroneously broad jury instruction as well, finding that the defendant was surprised by the instruction and that the error impacted his decision to testify on his own behalf. 284 Kan. at 537.

None of these issues arise in Mills' case. As Mills' own brief points out, the State's entire case focused on Mills' possession of the marijuana. In fact, as previously noted, Mills clearly understood the State's focus on possession, as his proposed jury instruction reflected only that theory of the case. Moreover, Mills' defense essentially argued that his possession of the marijuana was the inadvertent consequence of accepting a kite from Buckles and not an intentional act on his part. Nothing in the record suggests that Mills was surprised by the challenged instruction or that the error misled Mills in preparing his defense. If anything, Mills prepared a defense that focused on the erroneous instruction, not on the charge as he interprets it on appeal.

Similarly, the challenged instruction is supported by the evidence. The State's entire case hinged on the fact that Mills possessed the marijuana in question, and testimony elicited at trial focused on where and when the officers recovered the marijuana. In short, the record as a whole indicates that Mills' substantial rights were not prejudiced as he suffered no surprise, his defense was not impacted, and the instruction matched the evidence the State presented.

In sum, we find that Mills' claim of instructional error is barred by the invited error doctrine. But even on the merits, the instruction given was not clearly erroneous as it did include the language contained in the complaint regarding possession of marijuana and conformed to the evidence submitted. So it was both factually and legally appropriate. Accordingly, there was no error.

The State did not commit prosecutorial misconduct during closing argument.

Finally, Mills argues that the State committed prosecutorial misconduct during closing argument. Mills specifically objects to the following comment by the prosecutor made while discussing the weight and credibility of the testimony:

“Obviously the parties don't agree on what happened and on what the circumstances were. The state presented its witnesses as to what it believes the evidence shows and what happened. The defendant also testified and presented his version of events and what happened. It's for you to decide which version of events is more credible, which version you believe beyond a reasonable doubt.” (Emphasis added.)

Mills contends that this comment either diluted the State's burden of proof or shifted the burden of proof to the defense because it erroneously informed the jury that it needed to believe Mills' version of events beyond a reasonable doubt in order to acquit him.

Although Mills failed to object to this comment during the trial, a claim of prosecutorial misconduct based on comments made during closing argument that are not based on the evidence will be reviewed on appeal even when a contemporaneous objection was not made at the trial level. See State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012). That said, appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the court must determine whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must determine whether the improper comments constitute plain error—that is, whether the statements prejudiced the jury against the defendant and denied him or her a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).

We will assume, without deciding, that the comment made by the State—suggesting that Mills must prove his version of the events beyond a reasonable doubt—was outside the wide latitude afforded prosecutors. So we turn to the prejudice prong of the analysis.

When considering the prejudice prong of the prosecutorial misconduct analysis, this court must consider three factors: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012). None of these three factors is individually controlling, and before the third factor can override the first two, this court must determine that the misconduct constitutes harmless error under both the statutory and constitutional tests. State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030 (2011).

Our Supreme Court has identified several considerations that help guide our determination of whether the prosecutor's misconduct here was gross and flagrant. For example, we must consider whether the comment was repeated, emphasized, planned, calculated, or violated well-established or unequivocal rules. See State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012). As to this factor, Mills contends that because the State's case hinged on the credibility of various witnesses, the State's misconduct rises to a level of flagrancy that requires reversal. But a review of the record indicates that, aside from the single sentence in question, the prosecutor correctly stated the burden of proof several times and properly commented on the evidence. The comment was not repeated or emphasized. Although Mills alleges that the comment was tied to another comment made in voir dire regarding whether the potential jurors understood that Mills' version of events and the State's version of events may differ, we do not see any connection between these two comments. Accordingly, although the statement in isolation was clearly a misstatement of the law, it was not repeated or emphasized, nor did it appear to be planned or calculated. In addition, the instructions clearly advised the jurors regarding the burden of proof in the case and the presumption of innocence.

Prosecutorial misconduct that appears to be deliberate or indifferent to a court's ruling will be considered a product of ill will. See State v. Marshall, 294 Kan. 850, 862, 281 P.3d 1112 (2012); see also State v. Ochs, 297 Kan. 1094, 1103, 306 P.3d 294 (2013) (citing treatise that recognized other factors courts consider in determining harmfulness of prosecutorial misconduct, including whether misconduct related to crucial issue in trial; whether prosecutor followed misconduct with apology; and whether misconduct resulted from prosecutor's failure to obey court rulings, which increases likelihood of reversal). “In an overlap with determining gross and flagrant conduct, for determining ill will [our Supreme Court] has also considered whether the conduct was repeated.” Ochs, 297 Kan. at 1103 (citing Marshall, 294 Kan. at 862). Mills argues that the statement made by the prosecutor evidenced ill will because it was an egregious violation of the presumption of innocence. Although some confusion may have existed in the State's “beyond a reasonable doubt” language, the State immediately moved to the next jury instructions, explaining: “Then we go on to the instructions that involve the actual counts. Count One the defendant is charged with the crime of trafficking in contraband. To establish this crime the state has to prove beyond a reasonable doubt the elements of that crime and the elements are listed out and there are three of them.” (Emphasis added.) At the end of its argument and in its rebuttal, the State again reiterated the burden of proof. During the closing argument by defense counsel, he also emphasized that the State was required to prove each element beyond a reasonable doubt. Moreover, the district court correctly instructed the jury on the burden of proof, as well. We find no ill will evidenced when we view the closing statements in their entirety and in context. See State v. Warledo, 286 Kan. 927, 948, 190 P.3d 937 (2008) (when analyzing the prejudicial nature of the prosecutor's improper comments, we examine the comments in the context of the record as a whole).

Finally, Mills argues that because he presented evidence that he did not know the kite contained marijuana, the evidence presented to the jury was not direct and overwhelming such that the misconduct would not have affected the jury's verdict. We disagree. Almost all the evidence involving the razor blade and much of the evidence involving the marijuana was direct and overwhelming. The contraband was recovered from his cell, and aside from Mills' story about Buckles and the kite, nothing suggested that another individual possessed or planted those items in his cell. In short, even if the statement at issue constituted misconduct, it did not lead the jury astray as the evidence directly tied Mills to both the razor blade and the marijuana.

In sum, even if this statement made by the prosecutor in closing argument constituted misconduct, it is not the type of misconduct that requires reversal because it was not motivated by ill will, was not gross or flagrant, and the evidence against Mills was direct and overwhelming.

Accordingly, we affirm Mills' convictions.


Summaries of

State v. Mills

Court of Appeals of Kansas.
Oct 3, 2014
335 P.3d 710 (Kan. Ct. App. 2014)
Case details for

State v. Mills

Case Details

Full title:STATE of Kansas, Appellee, v. Leonard MILLS, Appellant.

Court:Court of Appeals of Kansas.

Date published: Oct 3, 2014

Citations

335 P.3d 710 (Kan. Ct. App. 2014)