Opinion
110,836.
06-05-2015
STATE of Kansas, Appellee, v. Desiree BOONE, Appellant.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Desiree Boone appeals her convictions for involuntary manslaughter and aggravated assault on three grounds. First, she contends the district court improperly diluted the State's burden of proof when it provided the prospective jury panel with an outdated instruction on reasonable doubt prior to voir dire. Second, Boone argues the district court violated her constitutional right to a jury trial when its final instructions stated to the jury that it must base its verdict entirely upon the evidence admitted and the law as given in the instructions because this essentially forbade the jury from exercising its power of ification. Finally, Boone claims the district court abused its discretion when it determined that the mitigating factors she cited in support of her request for a downward dispositional departure were not substantial and compelling reasons to depart from the sentences prescribed by the Kansas Sentencing Guidelines Act (KSGA).
We find no reversible error in any of the district court's instructions given either before jury selection or upon final submission of the case to the jury. We affirm on Boone's first two issues. As to her sentencing issue, we have no jurisdiction to address the issue since she received a presumptive sentence under the guidelines. We dismiss the appeal on that issue.
The issues raised by Boone render the factual details of the crimes immaterial to a resolution of this appeal. Suffice it to say that Boone apparently fired a single shot from her handgun in the living room of a house. The bullet passed through a wall and struck Earle R. Sullivan, Jr. in the head killing him. Boone claimed at trial that she accidentally discharged the gun.
The State had originally charged Boone with one count of second-degree murder, i.e., unintentionally but recklessly killing Sullivan under circumstances manifesting extreme indifference to the value of human life, and one count of aggravated assault, i.e., using a pistol to place Adam Barney, Boone's cousin, in reasonable apprehension of immediate bodily harm. At Boone's trial, Barney and Boone provided differing accounts of the events precipitating Sullivan's death.
At the conclusion of the trial, the jury convicted Boone of involuntary manslaughter, a lesser-included offense of second-degree murder, and aggravated assault. Subsequently, the district court denied Boone's request for a downward dispositional departure and sentenced her to a controlling prison sentence of 44 months.
The Instruction on Reasonable Doubt Given the Prospective Jury Panel Prior to Voir Dire
Before voir dire, the district judge read several preliminary instructions to the venire panel, which he prefaced with the following remarks:
“Most of you probably aren't familiar with the trial process and certainly don't know anything about the particulars of this case. Because of that, before the jury selection process will start, I'm going to give you some information about the case, and I'm going to give you some preliminary instructions. These instructions are actual instructions that a jury will receive at the end of the case, but they are not the complete package of instructions. Hopefully they will make you a little more comfortable with what you're going to be called upon to do as a juror and understand what your role, your function, your job would be. They are actual instructions, so to make sure I get them right, I am going to read them verbatim.”
The district judge included among its preliminary instructions an outdated version of Pattern Instructions for Kansas (PIK)-Criminal 3d 52.02 on reasonable doubt:
“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 any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
This instruction, which is identical to the pre–2005 version of PIK Crim.3d 52.02, deviates slightly from the most recent version of PIK Crim.3d 52.02. See State v. Womelsdorf, 47 Kan.App.2d 307, 332–34, 274 P.3d 662 (2012), rev. denied 297 Kan. 1256 (2013). In 2005, the PIK Committee “changed the word ‘any’ to ‘each’ in the last sentence of the instruction in order to be consistent with the instructions throughout PIK Crim.3d which state, ‘To establish this charge, each of the following claims must be proved ...’ “ Comment, PIK Crim.3d 52.02 (2004 Supp.) (The amended version of PIK Crim.3d 52.02 is identical to PIK Crim. 4th 51.010.). Although the use of PIK instructions is not required, it is strongly recommended, as these “ “ ‘instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions.’ “ [Citation omitted.]” State v. Acevedo, 49 Kan.App.2d 655, 663, 315 P.3d 261 (2013), rev. denied 300 Kan.–––– (2014).
Significantly, however, while the district court provided the prospective panel with an outdated reasonable doubt instruction at the outset of the proceedings, in its final instructions to the sworn jury before submitting the case to it at the end of the trial, the court instructed on the most recent version of the reasonable doubt:
“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.)
Boone contends the district court improperly diluted the State's burden of proof when it provided the prospective panel at the outset of trial with the outdated version of PIK Crim.3d 52.02. She argues the district court's use of the word “any,” rather than “each” in the last sentence of the instruction created an unconstitutional ambiguity, as “[a]mong linguists and grammarians, ‘any’ is a famously difficult word” that can change meaning depending upon the context in which it is used. Consequently, Boone claims that by leaving the prospective panel to define the meaning of the word “any,” the district court authorized the jury to convict her “without first determining that the State had proved every element of th[e] offense[s] beyond a reasonable doubt.”
Boone concedes she did not object to the district court's preliminary instruction on reasonable doubt. As such, she cannot prevail on her claim of error unless the instruction was clearly erroneous. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). Appellate courts utilize a two-step process in determining whether a challenged instruction was clearly erroneous: (1) the court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record; (2) if the court finds error, it must assess “whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 297 Kan. at 204, 299 P.3d 309.
Boone acknowledges that in State v. Herbel, 296 Kan. 1101, Syl. ¶ 9, 1122–24, 299 P.3d 292 (2013), our Supreme Court determined that an instruction identical to that provided to the prospective panel in this case was not clearly erroneous. Boone attempts to distinguish the case on the basis that the instruction in Herbel was given before the jury retired for deliberations and “the instruction at issue [here] was given by the district court prior to the introduction of evidence, [which] thereby taint[ed] the entire trial.” Additionally, Boone claims that unlike Herbel, the district court did not remedy its use of the outdated instruction by contemporaneously providing the prospective panel with elements instructions, which contain the following language for each charge: “ ‘[T]o establish this charge, each of the following claims must be proved.’ [Citation omitted.]”
Boone's attempt to distinguish Herbel fails. Our Supreme Court determined that “[w]hile the older PIK instruction ... was not the preferred instruction, it was legally appropriate. [Citations omitted.]” (Emphasis added.) See Herbel, 296 Kan. at 1124, 299 P.3d 292. Therefore, if the pre–2005 version of PIK Crim.3d 52.02 does not qualify as a clear misstatement of the law when given to a jury at the close of evidence, as in Herbel, 296 Kan. at 1120, 299 P.3d 292, it follows that the instruction does not somehow morph into bad law when provided to a venire panel. See also State v. Travelbee, No. 110,348, 2014 WL 5312939, at *1–2 (Kan.App.2014) (unpublished opinion), petition for rev. filed November 10, 2014, a panel of this court addressed this very issue and concluded that the pre–2005 version of PIK Crim.3d 52.02 was not erroneous when given before voir dire.
Accordingly, because the preliminary reasonable doubt instruction given to the venire panel properly and fairly stated the law, the district court did not erroneously instruct the jury as to the State's burden of proof.
The District Court's Instruction to Jurors That It Was Their Duty to Render a Verdict Based Entirely Upon the Evidence Admitted and the Law As Given In the Instruction
Boone contends the district court violated her constitutional right to a jury trial when it read the third sentence of PIK Crim. 4th 68.010 to the jury, which states: “Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions.” Boone claims that PIK Crim. 4th 68.010 misstates the law because, in actuality, “ ‘[j]uries possess the power to decide a case in a manner which is contrary to the applicable facts and law, i.e., the power of jury ification.’ “ According to Boone, if the district court had not erroneously instructed the jury in this regard, “there is a very real possibility the jury would have ified and acquitted [her] entirely of the charges based upon a belief that [she] was acting recklessly by handling the gun, but that her fear was not unjustified.”
Again, Boone concedes she did not object at the instruction conference nor did she object when the instruction was read in open court. Consequently, we employ the clearly erroneous principle that we employed in addressing Boone's first issue. See Smyser, 297 Kan. at 204, 299 P.3d 309 ; see also State v. Lewis, 299 Kan. 828, 856, 326 P.3d 387 (2014).
As an aside, we note at this point that while complaining about this language in the jury instructions, Boone does not challenge or even mention the other instances where the district court gave a similar directive to the jury both orally and in other places in its written instructions, for example just prior to recesses during the trial.
As recognized by the court in Silvers v. State, 38 Kan.App.2d 886, 888, 173 P.3d 1167, rev. denied 286 Kan. 1180 (2008), jury ification is:
“ ‘A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.’ [Citation omitted.]”
Jury ification is always a possibility because there is nothing prohibiting a jury from acquitting a defendant based upon the jurors' sympathies or individualized notions of right and wrong. However, our Supreme Court has expressly disapproved of the use of a jury ification instruction that tells a jury that they “may do what they think is fair” or that they are entitled to act upon their conscientious feelings as to a fair outcome and to acquit the defendant if they believed justice required such a result. See State v. Naputi, 293 Kan. 55, Syl. ¶ 4, 65–67, 260 P.3d 86 (2011), State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973). On the other hand, neither may the trial court's instructions specifically forbid a jury from exercising its power of ification nor may it “compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.” State v. Smith–Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014).
The instruction at issue here, however, does not appear to upset the balance between encouraging jury ification and forbidding it. While PIK Crim. 4th 68.010 utilizes the word “must” rather than “should,” it does not compel the jury to enter a specific verdict; instead, it equally protects the rights of the accused and the State. Moreover, PIK Crim. 4th 68.010's description of the proper function and duty of a jury is fully consistent with the dictates of K.S.A. 22–3403(3) which states: “When the trial is to a jury, questions of law shall be decided by the court and issues of fact shall be determined by the jury.” Likewise, pursuant to K.S.A.2014 Supp. 60–247(d), “[t]he jurors must swear or affirm to try the case conscientiously and return a verdict according to the law and the evidence.” Finally, although McClanahan did not directly address the legality of PIK Crim. 4th 68.010, the reasoning behind our Supreme Court's rejection of the “ ‘do what you think is fair instruction’ “ supports its use:
“The administration of justice cannot be left to community standards or community conscience but must depend upon the protections afforded by the rule of law. The jury must be directed to apply the rules of law to the evidence even though it must do so in the face of public outcry and indignation. Disregard for the principles of established law creates anarchy and destroys the very protections which the law affords an accused.
Finally, to permit a jury to disregard the principles of law laid down by a trial court is contrary to the statutory law of this state. [Citation omitted.]
“Although it must be conceded that the jurors in a criminal case have the raw physical power to disregard both the rules of law and the evidence in order to acquit a defendant, it is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon . ” (Emphasis added.) McClanahan, 212 Kan. at 216–17, 510 P.2d 153.
In conclusion, because the third sentence of PIK Crim. 4th 68.010 merely describes the jury's legal duty to render a verdict according to the law and evidence, the district court did not err when it included this language in its instructions to the jury. As such, we need not engage in the second step of the process used in determining whether the instruction was clearly erroneous, i.e., would the jury have reached a different verdict had the instruction not been given.
The District Court's Denial of the Request for a Downward Durational Sentencing Departure
Prior to sentencing, Boone filed a motion seeking a downward dispositional departure. She alleged that the following substantial and compelling reasons justified such a departure: (1) she had a “very limited criminal history” and her most serious offenses had occurred over 10 years ago; (2) she suffered from several mental disorders; (3) the Lamed State Mental Hospital had determined her mental illness could be adequately managed with psychotropic medications and, thus, she did not require the structure of hospitalization; and (4) she had a supportive family. Following the parties' arguments, the district judge denied the motion. In detailing its rationale for the denial, the court essentially stated it had balanced the public safety needs of society with the realistic chances of offender reformation.
Boone contends the district court abused its discretion when it determined the mitigating factors she had cited in support of her motion were not substantial and compelling reasons to depart from the sentences proscribed by the KSGA. It is clear, however, we do not have jurisdiction to consider this issue because Boone received presumptive sentences. The district court imposed a controlling prison term of 44 months, which represents the standard presumptive guidelines sentence for individuals, like Boone, who have a criminal history score of I and used a firearm to commit involuntary manslaughter and aggravated assault. See K.S.A.2014 Supp. 21–6804(a) (setting forth the presumptive sentencing grid); K.S.A.2014 Supp. 21–6804(h) (“When a firearm is used to commit any person felony, the offender's sentence shall be presumed imprisonment.”).
Although our Supreme Court recently found that all departure sentences are appealable—regardless of whether they are favorable to the defendant—unless a specific provision divests the appellate court of jurisdiction, appellate courts do not have jurisdiction to review any sentence entered for a felony, committed on or after July 1, 1993, that falls within the presumptive KSGA sentencing range for the crime. See K.S.A.2014 Supp. 21–6820(a), (c)(1) ; State v. Looney, 299 Kan. 903, Syl. ¶ 4, 908, 327 P.3d 425 (2014) (finding “a defendant who requests a durational departure to a specific term, and then receives a favorable durational departure but to a term longer than the one requested ... could indeed complain the sentencing court ‘did not depart enough’ ”); State v. Williams, 37 Kan.App.2d 404, 407–08, 153 P.3d 566 (appellate court without jurisdiction to review denial of dispositional or durational departure motion), rev. denied 284 Kan. 951 (2007); State v. Huerta, 291 Kan. 831, 835–37, 247 P.3d 1043 (2011) (reaffirming that K.S.A. 21–4721 [c][1] [now K.S.A.2014 Supp. 21–6820(c)(1) ] eliminates appeals of presumptive sentences).
Affirmed in part and dismissed in part.