Opinion
No. 105,953.
11-30-2012
STATE of Kansas, Appellee, v. Brian BANKS, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jennifer L. Myers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Jennifer L. Myers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM. Following a trial by jury, Brian Banks was convicted of one count of aggravated battery. Banks raises three issues for our consideration. The first issue is whether the trial court's reasonable doubt instruction violated his constitutional right to have the State prove beyond a reasonable doubt all the elements of his crime. The second issue is whether the trial court erred when it failed to give a lesser included offense instruction for his aggravated battery charge. The third issue is whether the trial court erred when it failed to give the jury an accomplice testimony instruction. Of these three issues, we find only the first to be meritorious. Accordingly, we reverse and remand for a new trial.
During February or March 2010, Marlowe Underwood separated from his wife, Andrea Underwood, and moved in with his mother. On May 6, 2010, Andrea picked up Marlowe so that he could spend some time with their children. Because Marlowe did not have his own transportation, he ended up spending the night at Andrea's house. The next day, Andrea was supposed to take Marlowe back to his mother's house. Instead, Andrea drove to a house in Kansas City, Kansas, and picked up her cousin, Brian Banks. Once they arrived at Banks' house, Andrea got out and went inside. Marlowe waited in the car for approximately 30 minutes until he got tired of waiting and decided to walk home.
After walking away from the car, Marlowe saw Andrea get in her car and leave. At the same time, Banks ran to catch up with Marlowe. Once Banks caught up to Marlowe, he asked him to call Andrea to pick them up. Before Marlowe could place the call, Andrea called him and told him to meet her at 18th Street and Washington. Marlowe agreed. Andrea picked up Marlowe and Banks and drove to a market. Marlowe became upset with Andrea because she had not taken him home, and the two began to argue. During the argument, Banks asked Marlowe if he could borrow his phone. Marlowe agreed; Banks took the phone and got out of the car. After the argument, Marlowe got out of the car to retrieve his phone from Banks. Marlowe searched the parking lot and the market for Banks, but he could not find him. As Marlowe walked back towards Andrea's car, she drove off, yelling at him to call her once he found Banks and she would come back and pick them up.
Marlowe walked back to the house where he and Andrea had picked up Banks earlier in the day. Marlowe still could not find Banks. Marlowe borrowed someone's phone and called his own phone number. Banks answered the call. Marlowe asked Banks why he had not returned his phone. Marlowe told Banks that he needed his phone and asked him where he was. Banks told Marlowe to meet him at a store located at 18th Street and Parallel Parkway. Marlowe went to the store, but Banks was not there. Marlowe started walking towards his mother's house. While Marlowe was walking, he saw Banks and Andrea in Andrea's car. Andrea stopped and Marlowe got into the car. Marlowe asked Banks for his phone, but Banks told him that he had left it at a different location. While Andrea was driving, Banks and Marlowe began to argue about the phone. Marlowe grabbed Andrea's phone and declared that he would not return it until his phone was returned. Then Andrea, Marlowe, and Banks all began to argue; Marlowe got out of the car and walked in the direction of a nearby park. After Marlowe got out of the car, Banks got out of the car and retrieved Marlowe's phone from the trunk of Andrea's car. Banks, Andrea, and Marlowe met and exchanged phones. After the phone exchange, Marlowe continued to walk across the park while Andrea and Banks went back to Andrea's car. As Marlowe walked across the park, Andrea and Banks drove past him and stopped. Banks got out of the car and jogged toward Marlowe. Banks shouted at Marlowe, who turned around. Marlowe saw Banks pull out a gun. Banks pointed the gun and fired several shots at Marlowe. One of the bullets hit Marlowe in the foot and another bullet hit him in the calf. After the shooting, Marlowe saw Banks running towards Andrea's car. Marlowe called 911.
Marlowe was taken to the University of Kansas hospital to receive treatment for his injuries. Specifically, Marlowe had surgery to repair the injury to his foot. Marlowe's foot injury was described by his treating physician, Dr. Kelly Hendricks, as a fracture. Dr. Hendricks put in a pin to prevent the fracture from moving and then placed Marlowe's foot in a splint. Dr. Hendricks also noted that Marlowe suffered from a gunshot wound to his calf, but that wound did not require surgery.
Banks was charged with aggravated battery in violation of K.S.A. 21–3414. Following a trial by jury, Banks was found guilty of aggravated battery and sentenced to 154 months' imprisonment with 36 months' postrelease supervision.
Did the Trial Court's Reasonable Doubt Instruction Violate Banks' Constitutional Right Requiring the State to Prove All the Elements of the Crime Beyond a Reasonable Doubt?
Banks first argues that his constitutional right, requiring the State to prove all of the elements of his aggravated battery charged beyond a reasonable doubt, was violated because the jury was improperly instructed. Specifically, Banks maintains that the use of the word “each” in the reasonable doubt instruction constituted a structural error requiring reversal of his conviction. The State disagrees and argues that Banks invited this error by not raising it at the trial court. In the alternative, the State concedes that the jury instruction here was erroneous, but it maintains that any error was harmless.
“The question of whether an individual's constitutional rights have been violated is a question of law.” McComb v. State, 32 Kan.App.2d 1037, 1041, 94 P.3d 715, rev. denied 278 Kan. 846 (2004). Consequently, our review is unlimited. 32 Kan.App.2d at 1041.
The reasonable doubt instruction as set out under PIK Crim.3d 52 .02 reads as follows:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Instruction No. 5, the reasonable doubt instruction given here, differed slightly from PIK Crim.3d 52.02:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Thus, the only difference between PIK Crim.3d 52.02 and Instruction No. 5 is that Instruction No. 5 used the emphasized words “each” and “each” when referring to the claims rather than “any” and “each,” which are used in PIK Crim.3d 52.02.
Before we may reach the merits of Banks' argument, we first must address the State's preliminary argument—that Banks invited the jury instruction error at trial. When addressing issues involving the invited error rule, our court has stated the following:
“[A]ppellate courts have long recognized that a party may not invite error in a case and then complain of that error as a ground for reversing an adverse judgment. State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). That common-sense rule applies in criminal and civil proceedings. Parties cannot complain to an appellate court about their own conduct—or that of their lawyers—or about rulings or decisions they have asked a trial judge to make. If parties get what they ask for from district court judges, we will not reverse judgments against them even though they may think better of their requests on appeal. As the Kansas Supreme Court stated in State v. Smith, 232 Kan. 128, Syl. ¶ 2, 652 P.2d 703 (1982): ‘Where a party procures a court to proceed in a particular way and invites a particular ruling, he is precluded from assailing such proceeding and ruling on appellate review.’
“Jury instructions present a prime instance illustrating the soundness of the invited error rule. See State v. Angela, 287 Kan. 262, 279–80, 197 P.3d 337 (2008); State v. Hernandez, 44 Kan.App.2d 524, 528, 239 P.3d 103 (2010), pet. for rev. filed October 1, 2010 (pending); State v. McCoy, 34 Kan.App.2d 185, 189–90, 116 P.3d 48, rev. denied 290 Kan. 988 (2005) (citing cases). The Kansas Supreme Court recently restated the rule this way: ‘When 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) .” State v. Schreiner, 46 Kan.App.2d 778, 788, 264 P3d 1033 (2011).
Even so, the State's argument is misplaced as our Supreme Court has noted that “the invited error rule cannot be used as pretext for violating a defendant's constitutional rights.” State v. Kesselring, 279 Kan. 671, 689, 112 P.3d 175 (2005). Here, Banks is challenging the trial court's reasonable doubt instruction. A criminal defendant's right to be proven guilty beyond a reasonable doubt is a matter of fundamental due process founded under the Fifth and Fourteenth Amendments to the United States Constitution. See Sullivan v. Louisiana, 508 U.S. 275, 277–78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). As a result, the invited error doctrine is inapplicable here.
Although the State concedes that the reasonable doubt instruction given here was erroneous, the State argues that the error was harmless. Specifically, the State maintains that “[a]lthough the instruction used the incorrect word, the instruction fairly stated the law, and when read as a whole, were substantially correct.” On the other hand, Banks relies on Sullivan v. Louisiana, 508 U.S. 275, 277–78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), in support of his argument. In Sullivan, the jury had been given an instruction defining reasonable doubt as, among other things, “an actual substantial doubt.” 508 U.S. at 277. The United States Supreme Court held that the reasonable doubt definition given at trial imposed too low of a threshold on the government, therefore denying the defendant both a constitutionally sufficient jury trial and fundamental due process. Sullivan, 508 U.S. at 278. Further, the United States Supreme Court held that the reasonable doubt definition constituted structural error, i.e., a constitutional defect so wounding that relief in the form of a new trial had to be given to the defendant without considering harmlessness.
Like Sullivan, where the United States Supreme Court found that the reasonable doubt definition diluted the government's burden of proof, the reasonable doubt instruction here also diluted the State's burden of proof. In fact, this court recently addressed a similar issue in Miller v. State, No. 103, 915, 2012 WL 401601 (Kan. App 2012) (unpublished opinion). In Miller, the jury instruction stated:
“ ‘The test you must use in determining whether the defendant is guilty is this: If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.’ “ 2012 WL 401601, at *2.
This instruction in Miller followed the Kansas pattern jury instruction, PIK Crim.3d 52.02, except that it transposed the words “each” and “any.”
Relying on Sullivan, the Miller court declared:
“The instructional defect [here] had precisely the same impact as the structural error outlined in Sullivan and certainly would have required the same result if it had been raised on direct appeal. Miller would have received a new trial without measuring the effects for harmless error. Given the flawed instruction, the best that can be said about the verdict is the jurors found one of the elements or claims proven beyond a reasonable doubt. That's all the instruction required they do to find Miller guilty.
“The jury may have found beyond a reasonable doubt that Mary Miller died on July 28, 2004, in Douglas County, as outlined in the third element. It may have had a collective reasonable doubt about whether Miller intentionally killed her or that he acted with premeditation if he did. Miller aggressively disputed those two elements during the trial. Maybe the jury found all three beyond a reasonable doubt. Maybe it found one and didn't even consider the other two. Any of those possibilities would be consistent with the instruction given in this case. We, as a reviewing court, don't know and simply cannot tell.” Miller, 2012 WL 401601, at *4.
Like Miller, the word “each” was used in the first part of the reasonable doubt instruction. In this case, the way the instruction was worded it told the jurors that they should find Banks not guilty only if they had a reasonable doubt under each of the claims. Thus, reasonable doubt would be required for each of the claims (rather than any of the claims) to aquit Banks of aggravated battery. Instruction No. 5 clearly diluted the State's burden of proof. As a result, the reasonable doubt instruction given here was a structural error undermining Banks' constitutional rights. For this reason, we reverse Banks' conviction and remand for a new trial.
We have considered Banks' other contentions (1) that the trial court erred when it failed to give a lesser included offense instruction for his aggravated battery charge and (2) that the trial court erred when it failed to give the jury an accomplice testimony instruction. None of these contentions has sufficient merit to warrant further discussion.
Reversed and remanded for a new trial.