Opinion
No. 106,986.
2013-08-30
STATE of Kansas, Appellee, v. Timothy J. COOPER, Appellant.
Appeal from Wyandotte District Court; John J. McNally, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Christopher Mann, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; John J. McNally, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Christopher Mann, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Timothy J. Cooper appeals his conviction for one count of aggravated battery. For the reasons below, we affirm.
Facts
On the morning of November 12, 2009, Richard Fleig was raking leaves at a home in Wyandotte County, Kansas. As he was working, he saw a van pull up in the driveway. Two men whom Fleig did not know got out of the van and approached him. One of the men asked Fleig if he knew a girl named Hillary. Fleig initially responded, “No,” but then he recalled one of his daughter's friends and told the men, “[Y]eah, I do.” At that point, the man who had been driving the van (later identified as Cooper by Fleig) and the two other occupants of the van attempted to punch Fleig but only grazed the top of his head. Fleig ran away from the men, calling for his dog and grabbing a metal pole for protection. Fleig then ran toward the van, which had backed toward the street, and challenged the men to come back and fight. At that point, Cooper produced a gun and shot at Fleig from within the van. Fleig testified that he heard several gunshots.
Fleig was struck in the right foot by a bullet. He described feeling pain in his leg as the van drove away and saw blood “gushing out” of his foot. One of the occupants of the van testified that Fleig fell to the ground after Cooper fired the gun. Fleig called 911 and removed his shoe to stop the bleeding, observing a hole in the shoe and the sock. Police responded to the scene and found Fleig lying in the driveway. Fleig was transported to KU Medical Center for treatment. The emergency room nurse testified that Fleig suffered a single gunshot wound to his right great toe with a graze wound to the top of his foot, which caused Fleig a great deal of pain. She noted that such a wound could cause nerve damage or cause a burning pain in his foot. Although the nurse could not recall if there was an exit wound on Fleig's foot, investigators at the crime scene collected a bullet fragment from Fleig's shoe. Photographs introduced at trial showed that Fleig sustained an injury to his big toe and in the middle of his foot. Fleig testified at trial that the bullet “blew part of [his] toe off” and “a little chunk” out of the ball of his foot, and he noted that the wound still “hurts every now and then.” Several other witnesses testified that Fleig's foot was bleeding at the scene, that his sock and shoe were bloody, and that his sock and shoe each had a hole in it.
After locating Cooper, the police found among his personal items a handgun consistent with the bullet located in Fleig's shoe and the bullet casing that was recovered from the scene. Cooper was charged with aggravated battery.
During deliberations, the district court received three questions from the jury. The court discussed each of these three questions in chambers with both counsel and Cooper present, outside the presence of the jury. The district court and both counsel agreed on the answers that would be provided to the jury, and the transcript reflects that the jury continued deliberations after receiving those answers. There is no indication in the record that the jury was brought into open court to receive the answers to its questions or that the answers were provided to the jury in the presence of Cooper. Instead, it appears that the district court simply wrote the answers on the same paper on which the questions were written and returned the paper to the jury.
The jury ultimately convicted Cooper of aggravated battery as charged.
Analysis
On appeal, Cooper challenges the procedure used by the district court to respond to the jury questions as well as the district court's failure to give a lesser included offense instruction.
1. Did the procedure used by the district court to respond to the jury questions deny Cooper his statutory or constitutional rights?
Cooper asserts the district court's decision to submit written answers to the jury questions outside of his presence, instead of in open court, was contrary to K.S.A. 22–3420(3) and violated his constitutional rights to be present at all critical stages of his trial, to an impartial judge, and to a public trial.
Resolution of this issue requires statutory and constitutional interpretation. This presents a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
As a threshold matter, this court must assess whether Cooper may raise this issue for the first time on appeal. Cooper did not object to the district court's written response to the jury questions at the trial below. Generally, issues that have not been raised before the district court cannot be raised on appeal, and constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012); State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). However, there are several exceptions to this general rule: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or assigned a wrong reason for its decision. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). To that end, the United States Supreme Court has found that the accused's right to be present in the courtroom at every stage of his or her trial is one of the most basic of the rights guaranteed by the Confrontation Clause of the Sixth Amendment to the United States Constitution. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Moreover, the Kansas Supreme Court has found that the defendant's right to a public trial is one of his or her fundamental rights. State v. McNaught, 238 Kan. 567, 577, 713 P .2d 457 (1986).
Although Cooper fails to argue in his brief that any of these exceptions apply, a panel of this court considered nearly identical issues for the first time on appeal in State v. Womelsdorf, 47 Kan.App.2d 307, 320–21, 274 P.3d 662,petition for rev. filed May 10, 2012. In so doing, the Womelsdorf court noted that the Kansas Supreme Court also addressed a similar issue for the first time on appeal. 47 Kan.App.2d at 320 (discussing State v. Bell, 266 Kan. 896, 918–20, 975 P.2d 239,cert. denied528 U.S. 905 [1999] ); but see State v. Groschang, 272 Kan. 652, 672, 36 P.3d 231 (2001) (time-honored rule that an issue not raised in district court may not be raised for first time on appeal applies to jury requests under K.S.A. 22–3420[3] ). Given the fundamental nature of the rights at stake, we will address the merits of Cooper's claim. a. The district court's procedure did not violate K.S.A. 21–3420(3) or Cooper's right to be present at all critical stages of his trial.
Cooper first argues that the district court's procedure of submitting a written answer to the jury questions outside of his presence violated his constitutional right to be present at every critical stage of his trial and was contrary to K.S.A. 22–3420(3), which provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he [or she] voluntarily absents himself [or herself], and his [or her] counsel and after notice to the prosecuting attorney.”
In Bell, our Supreme Court discussed the correct procedure for a trial court to follow when answering questions from a deliberating jury, finding:
“K.S.A. 22–3420(3) requires that once the jury has begun deliberations, any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence, unless the defendant is absent voluntarily. [Citation omitted.]
“K.S.A.1998 Supp. 22–3405, as well as the Sixth Amendment's Confrontation Clause and the Due Process Clause of the Fourteenth Amendment, require the defendant's presence at every critical stage of a trial. [Citations omitted.] This includes all times when the jury is present in the courtroom and whenever the trial court communicates with the jury. [Citation omitted.]” 266 Kan. at 919–20.
However, our Supreme Court later clarified these rules in State v. Wells, 296 Kan. 65, 290 P.3d 590 (2012). It found that to ensure a defendant's constitutional and statutory right to be present at critical stages of his or her trial is protected, a defendant must be present during the court's discussion with the attorneys and decision on how to respond to a written jury question. However, it concluded that
“there is no need that the court read the written answer it decided out loud to the jury in open court while the defendant is present. Simply delivering the answer the court decided upon to the jury via written note is sufficient to satisfy the defendant's right to be present. [Citation omitted.]” 296 Kan. at 92.
Furthermore, the court found K.S.A. 22–3420(3) only requires the presence of the defendant if the jury, after making a request, is taken into the courtroom so it can receive information from the district court on a point of law. In Wells, the jury never asked to be returned to the courtroom to receive the answer to its question. The Wells court therefore held that the district court did not violate the defendant's statutory and constitutional rights to be present during all critical stages of the trial when it answered the jury questions with a written note instead of while the defendant was present. 291 Kan. at 92.
Here, Cooper does not contend that he was not present in the courtroom for the discussion between the district court and the attorneys in formulating a response to the jury questions. Nor does he claim the jury requested to be returned to the courtroom to receive the answers to its questions. Cooper's complaints are that the jury was not ushered back into the courtroom to hear the district court's response to the question in his presence and that he was not present at the precise moment the court's response was communicated to the jury. However, the Wells decision clearly decides both Cooper's constitutional and statutory issues against him. Based on Wells, we find the district court's procedure in responding to the jury questions did not violate K.S.A, 22–3420(3) or Cooper's constitutional right to be present. b. The district court's procedure did not violate Cooper's right to an impartial judge.
Next, Cooper claims the district court's procedure in responding to the jury questions violated his constitutional right to an impartial judge.
Cooper argues that his fundamental right to an impartial judge was violated by sending the written answer to the jury. A criminal defendant has a right under the Due Process Clause of the Fourteenth Amendment to the United States Constitution to an impartial judge. Ward v. Village of Monroeville, 409 U.S. 57, 59–60, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). According to Cooper, the communication between the judge and jury was not complete until the jury received the written answer to its question. If no judge was present when the jury received the written answer, then no impartial judge was present, and Cooper argues that this procedure violated his right to an impartial judge under the Fourteenth Amendment. He further notes that he did not personally waive this fundamental right. Cf. State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 (1975) (“[F]or a criminal defendant to effectively waive his [or her] right to a trial by jury, the defendant must first be advised by the court of his [or her] right to a jury trial, and he [or she] must personally waive the right in writing or in open court for the record.”).
Cooper correctly states that the lack of an impartial judge is considered a structural error and is therefore not subject to the harmless error rule. A constitutional error does not automatically require reversal of a conviction, but there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error. These infractions are known as “structural defects.” Arizona v. Fulminante, 499 U.S. 279, 287–90, 306, 309–10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The presence of a judge who is not impartial and the right to a public trial are considered so basic to a fair trial that their infractions are structural defects. Fulminante, 499 U.S. at 309–10 (citing Waller v. Georgia, 467 U.S. 39, 49 & n. 9, 104 S.Ct. 2210, 81 L.Ed.2d 31 [1984], and Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 71 L.Ed. 749 [1927] ).
In this case, however, the district court's procedure did not constitute error. In Womelsdorf, a panel of this court considered the same issue and concluded that the district court's written answer to the jury did not violate the defendant's constitutional right to an impartial judge because, rather than providing the jury with the additional information it was requesting, it simply reminded the jury to consider only the evidence admitted during trial. Similarly, here, the district court's responses to the three jury questions denied it the additional information it wanted for two of the questions and simply rephrased the instruction already provided to the jury for the other question.
The jury's first question was whether the district court could provide synonyms for the word reasonable, to which the district court responded: “No.” The district court also told the jury “no” in response to their third question of whether the alternate juror could come in to deliberate with the jury without voting toward a verdict. The jury's second question was for clarification on the instruction on how to interpret eyewitness testimony in regard to the length of time of observation. That instruction stated:
“In weighing the reliability of eyewitness identification testimony, you first should determinate whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting.”
The district court's answer, which both counsel approved, stated: “The amount of time the witness had to observe the person being identified.” This response simply clarified that the jury should consider the amount of time the witness had to observe the person being identified, which the original instruction essentially already stated, although not as clearly.
Like in Womeisdorf the district court did not provide any additional information to the jury. Therefore, because Cooper had an impartial judge present at the time the instructions were first read to the jury, he was not denied his constitutional right to an impartial judge when the district court delivered a rephrasing of this instruction in writing to the jury. c. The district court's procedure did not violate Cooper's right to a public trial.
Cooper next contends that the district court's procedure in responding to the jury questions violated his constitutional right to a public trial.
A criminal defendant has a right under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights to a public trial. In re Oliver, 333 U.S. 257, 267 n. 18, 68 S.Ct. 499, 92 L.Ed. 682 (1948). As discussed above, the infringement of this right is a structural error that cannot be treated as harmless. See Fulminante, 499 U.S. at 308;Waller, 467 U.S. at 46–50; but see State v. Dixon, 279 Kan. 563, 599–600, 112 P.3d 883 (2005) (recognizing that not every violation of the right to a public trial is free from harmless error review, despite Fulminante ruling), disapproved of on other grounds by State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010). The United States Supreme Court has noted that the requirement of a public trial is for the benefit of the accused, so that the public may see he or she is fairly dealt with and not unjustly condemned.
Cooper's argument again relies on the assertion that the communication with the jury was not effective until the jury received the written answer in the jury room, where “the public was not present.” As the State notes, there is no Kansas caselaw or United States Supreme Court case extending the right to a public trial to responses to jury questions posed after the jury has begun its deliberations. Furthermore, the Womelsdorf court addressed this same issue and concluded that the district court's procedure in responding to the jury question in writing did not violate the defendant's constitutional right to a public trial. This is because the court found:
“Nothing about the district court's written response to the jury question, which is now available to the public as part of the court file, was hidden from public view. Obviously, the public was not present when the bailiff delivered the written response to the jury room, but jury deliberations are never open to the public.” 47 Kan.App.2d at 325.
For these same reasons, we find the district court's procedure in responding to the jury questions in writing did not violate Cooper's constitutional right to a public trial.
d. Because the district court did not err in responding to the jury questions in writing outside Cooper's presence, there was no cumulative error.
Finally, Cooper asserts that even if the above issues do not rise to the level of reversible error, the cumulative effect of these errors operated to deny Cooper a fair trial, requiring a reversal of his convictions.
Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. If the evidence is overwhelming against the defendant, however, no prejudicial error may be found based upon this cumulative error rule. Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). In addition, “[c]umulative error will not be found when the record fails to support the errors raised on appeal by the defendant.” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
As discussed above, the district court's procedure of responding to the jury questions in writing outside Cooper's presence was not error, so there cannot have been cumulative error.
2. Was Cooper entitled to a lesser included aggravated battery instruction?
Cooper presents two arguments in support of his claim that the district court erred in deciding not to give a lesser included offense instruction on aggravated battery. First, Cooper argues the question of whether the bullet wound injuries sustained by Fleig amounted to “great bodily harm” under K.S.A. 21–3414(a)(1)(A) or merely “bodily harm” under K.S.A. 21–3414(a)(1)(B) is a factual question that should have been presented to the jury for determination. Second, Cooper argues the district court made its decision not to give the lesser included instruction by relying on what Cooper believes to be an incorrect statement of the law set forth in the comments to PIK Crim.3d 56.18, the pattern instruction in Kansas for aggravated battery applicable at the time.
Under Kansas statute, a judge is required to instruct the jury on the crime charged and on any lesser included crime if “there is some evidence which would reasonably justify a conviction of some lesser included crime.” K.S.A. 22–3414(3). When, as is the case here, a defendant fails to request or does not object to the trial court's failure to give a lesser included offense instruction, it is reversible error only if the failure to give the instruction was clearly erroneous. State v. Harris, 293 Kan. 798, 806, 269 P.3d 820 (2012); see K.S.A. 22–3414(3).
To determine whether it was clearly erroneous to give or fail to give an instruction, the reviewing court necessarily must first determine whether an error occurred. Thus, the court must review the merits of the claim of error, which presents a legal question subject to unlimited review. Only after determining that the district court erred in giving or failing to give a particular instruction does the reviewing court engage in the reversibility inquiry. The test for clear error requiring reversal is whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. This assessment involves a review of the entire record and a de novo determination. The burden of showing clear error remains with the defendant. State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012).
Based on the framework set forth above, we first must decide whether the district court erred; in other words, whether the district court was required to give the lesser included instruction because there was “some evidence which would reasonably justify a conviction” of the lesser included offense. Under K.S.A. 21–3414, and relevant to the issue presented by Cooper on appeal, aggravated battery can be committed in two ways: (1) intentionally causing great bodily harm to another person; or (2) intentionally causing bodily harm to another person with a deadly weapon. “[B]odily harm has been defined as any touching of the victim against the victim's will, with physical force, in an intentional hostile and aggravated manner.” State v. Johnson, 46 Kan.App.2d 870, 881, 265 P.3d 585 (2011). Kansas courts have generally defined great bodily harm by explaining what it is not: it is “more than slight, trivial, minor, or moderate harm and does not include mere bruising.” State v. Morton, 38 Kan.App.2d 967, Syl. ¶ 2, 174 P.3d 904,rev. denied 286 Kan. 1184 (2008).
It was the task of the district court to consider the evidence as a whole to determine if the jury should be instructed on aggravated battery by intentionally causing bodily harm to another person with a deadly weapon. If the evidence was that Fleig's injury was not slight, trivial, moderate, or minor, the district court was not required to give the lesser included aggravated battery instruction here. See State v. Brice, 276 Kan. 758, 774, 80 P.3d 1113 (2003). In this case, Fleig testified that blood was “gushing out” of his foot, and several other witnesses corroborated that his foot was bleeding at the scene. Moreover, the emergency room nurse who treated Fleig testified that he suffered a single gunshot wound to his right great toe, with a graze wound to the top of his foot, which caused Fleig a great deal of pain. Fleig further testified that the bullet “blew part of [his] toe off” and “a little chunk” out of the ball of his foot, and he noted that the wound still “hurts every now and then.” Based on the undisputed evidence regarding the severity of the physical injuries sustained by Fleig and the lingering consequences of those injuries that still existed at trial almost 2 years later, there simply is no evidentiary support from which to conclude that Fleig's injuries were slight, trivial, moderate, or minor. Thus, the district court did not err in failing to instruct the jury sua sponte on the lesser included offense of aggravated battery.
Because we have concluded that the district court did not err by declining to provide the lesser included aggravated battery instruction, Cooper's second argument on this issue is moot. More specifically, even if, as Cooper argues, the district court made its decision not to give the lesser included instruction by relying on an incorrect statement of the law set forth in the comments to PIK Crim.3d 56.18, at the end of the day there still is no evidentiary support from which to conclude that Fleig's injuries were slight, trivial, moderate, or minor; thus, we would still affirm the district court but would do so by finding its decision right for the wrong reason. See Gomez, 290 Kan. at 862.
Affirmed.