Opinion
No. 107,064.
2013-02-1
STATE of Kansas, Appellee, v. Marshall C. HERNDON, Appellant.
Appeal from Scott District Court; Wendel W. Wurst, Judge. Meryl Carver–Allmond, capital appellate defender, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Appeal from Scott District Court; Wendel W. Wurst, Judge.
Meryl Carver–Allmond, capital appellate defender, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Convicted of two counts of rape and two counts of aggravated criminal sodomy of his 13–year–old daughter, Marshall C. Herndon asks us to overturn his convictions because the district court gave an outdated version of the recommended reasonable doubt instruction to the jury. The instruction used the term “any of the claims” instead of the now approved term “each of the claims.” Finding no clear error in the use of the instruction, we will not reverse Herndon's convictions. But, we agree with Herndon that the district court erred when it ordered him to serve both lifetime postrelease supervision and lifetime parole. The State concedes the point, and we vacate that portion of his sentence.
The facts of the trial provide a context for understanding the appeal.
Herndon's daughter, N.H., testified that in the fall of 2010, Herndon sexually abused her. N.H. said Herndon stuck his penis in her vagina, her mouth, and her “butt” while in her parents' bedroom. N.H. also testified that on another occasion, Herndon sexually abused her while in the living room of her parents' house. In that particular instance, Herndon stuck his penis in her vagina while she was bent over a chair. N.H. was 13 years old at the time of the crimes.
Although N.H. initially told law enforcement officers that a boy from school touched her inappropriately, she later told police that it was Herndon who raped her. Herndon's mother testified that when she spoke with Herndon about the abuse allegations, Herndon told her that “what [N.H.] said was true”—although he later told his mother that a lot of things N.H. was saying were not true.
Herndon's defense at trial was that the rapes were staged. Herndon testified that he had suffered physical pain for years because of back and shoulder injuries and he had attempted suicide on five different occasions. Herndon recalled watching an Oprah Winfrey episode about a man who wanted to kill himself, but wanted to make it look like he had raped his daughter so his wife and family would not be angry with him for committing suicide. Herndon explained that he and N.H. agreed to devise such a plan, and he denied sexually abusing N.H. Herndon said he knew it would be easier for his wife to go on with her life despite his decision to commit suicide if she had a reason to hate him.
In this appeal, Herndon argues the district court committed reversible error when it provided the jury with an erroneous instruction on reasonable doubt. Herndon says there is a reasonable likelihood the jury interpreted the instruction in a way that allowed it to convict him without determining the State had proved every element of the charged offenses.
Our standard of review is clear.
Herndon argues that because the instruction given in his case mischaracterized the State's burden of proof, the giving of the instruction was structural error, requiring reversal of his convictions. Herndon argues the clear error standard urged by the State is inapplicable. Herndon claims that to require a showing of clear error conflicts with the United States Supreme Court's opinion in Sullivan v. Louisiana, 508 U.S. 275, 280–82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), where the Court determined a constitutionally deficient reasonable doubt instruction cannot be harmless error.
However, Herndon did not object below to the instruction he now complains about. The State argues the clear error test applies when this court reviews a jury instruction not challenged below—and under this test, the giving of an erroneous instruction does not necessarily require reversal. To determine the applicable standard of review, we look to prior Kansas cases for guidance.
The jury instruction Herndon complains about states:
“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 was taken from PIK Crim.3d 52.02. The language of the current version of this instruction, PIK Crim. 4th 51.010, is identical to the above instruction with the exception of one word. PIK Crim. 4th 51.010 reads:
“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.)
In State v. Womelsdorf, 47 Kan.App.2d 307, 274 P.3d 662 (2012), petition for rev. filed May 10, 2012, this court considered the use of the word “any” in the reasonable doubt instruction. The court determined the instruction was “substantially correct” and the jury could not have reasonably been misled by it. 47 Kan.App.2d at 334. In reaching its conclusion, the court recognized Sullivan but applied the clear error test when determining the reasonable doubt instruction was not clear error and, therefore, not grounds for reversal. 47 Kan.App.2d at 330, 334. Before that, in State v. Beck, 32 Kan.App.2d 784, 787–88, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004), this court rejected the very argument made by Herndon. There, the court determined the use of the word “any” in the second sentence of the reasonable doubt instruction does not create ambiguity or result in a conviction where only one element of the crime is proved.
With that guidance, we will apply the clearly erroneous standard of review as argued by the State.
That standard has been explained most recently in State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012), where our Supreme Court clarified the standard of review when a defendant raises an instructional issue for the first time on appeal. The Williams court stated that in this situation, the reviewing court determines whether the instruction given is clearly erroneous. 286 P.3d at 199. To determine whether the giving of an instruction is clearly erroneous, the reviewing court first determines whether the instruction is erroneous—a legal question subject to unlimited review. 286 P.3d at 202. If the reviewing court determines the district court erred in giving the instruction, the court next engages in a reversibility inquiry. 286 P.3d at 202. To determine whether an instruction requires reversal, the court determines if the instruction is clearly erroneous— i.e., “whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 286 P .3d at 202. This determination requires a review of the entire record and a de novo determination. The burden to show clear error is on the defendant.
We find no clear error in this instruction.
Our first task is to consider whether the reasonable doubt instruction given in Herndon's case was error. “In reviewing jury instructions for error, we examine the instructions as a whole, rather than isolate any one instruction, and determine if the instructions properly and fairly state the law as applied to the facts of the case. [Citations omitted.]” State v. Ellmaker, 289 Kan. 1132, 1139–40, 221 P.3d 1105 (2009), cert. denied130 S . Ct. 3410 (2010).
We agree with the panel of this court in Beck that rejected the argument that an instruction identical to the one given here rendered the instruction ambiguous and erroneous. The Beck court stated: “We reject Beck's argument that the word ‘any,’ as used in this context, could somehow create ambiguity or result in Beck being convicted if only one element of the crime is proven.” 32 Kan.App.2d at 787.
Then, in Womelsdorf, the court reasoned that even though the then current version of PIK Crim.3d 52.02 provided the most accurate test for reasonable doubt (suggesting the instruction given at Womelsdorf's trial was arguably erroneous), the giving of the instruction was not clearly erroneous. The court stated:
“[T]he language of the jury instruction on reasonable doubt given at Womelsdorf's trial was identical to the instruction recommended in PIK Crim.3d 52.02 prior to 2005. In fact, the Kansas Supreme Court had previously held that this version of PIK Crim.3d 52.02 accurately reflected the law of this state and properly advised the jury in a criminal case of the burden of proof, the presumption of innocence, and reasonable doubt. See State v. Clark, 261 Kan. 460, 474–75, 931 P.2d 664 (1997).
“Applying the reasoning in Beck and considering the jury instructions given at Womelsdorf's trial as a whole, rather than isolating any one instruction, we find that the instructions were substantially correct and the jury could not reasonably have been misled by them. The reasonable doubt instruction given by the district court at Womelsdorf's trial was not a clear misstatement of the law, as was the situation in Miller. We conclude that the reasonable doubt instruction provided in Womelsdorf's case, while not the best practice, was not clear error. Accordingly, Womelsdorf is not entitled to a new trial based on the jury instructions.” 47 Kan.App.2d at 334.
We could say the same about Herndon's case.
The Miller opinion cited above is referring to an unpublished opinion that is relied upon by Herndon. Herndon cites Miller v. State, No. 103,915, 2012 WL 401601 (Kan.App.2012) (unpublished opinion), petition and cross-petition for review filed February 22 and March 7, 2012, when maintaining that the instruction given in his case was error. In Miller, the movant appealed the denial of his K.S.A. 60–1507 motion, claiming ineffective assistance of counsel. In particular, Miller claimed appellate counsel was deficient for failing to challenge the reasonable doubt instruction given at his trial, which read:
“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 any of the claims required to be proved by the State, you should find the defendant guilty.' (Emphasis added.)” 2012 WL 401601, at *2.
The Miller court found this instruction provided a clear misstatement of the law, which directly affected Miller's fundamental constitutional rights and required reversal of the denial of his motion and a remand for a new trial. 2012 WL 401601, at *5, 9. But this instruction differs from the instruction given in Herndon's case. While the instruction in Miller transposed the words “any” and “each” (as compared to the relevant PIK instruction), the instruction given in Herndon's case used the word “any” in both sentences of the instruction. That makes a difference.
Concerning the rape and aggravated criminal sodomy charges, Herndon's jury was instructed: “To establish this charge, each of the following claims must be proved”—followed by a list of the elements of the crimes. (Emphasis added.) In Beck, the court found that such an instruction negated any potential confusion that may have been caused by the use of the word “any” in the second sentence of the reasonable doubt instruction. 32 Kan.App.2d at 787–88. Although the better practice would be to conform to the current PIK Crim. 4th 51.010 instruction, the instruction given in Herndon's case was not clear error. There is not a real possibility the jury would have rendered a different verdict had the alternative instruction been given. Herndon's convictions must be affirmed.
Imposition of lifetime postrelease supervision was erroneous.
Herndon's next argument on appeal is that the district court erred when it ordered him to serve both lifetime postrelease supervision and lifetime parole. Citing State v. Cash, 293 Kan. 326, 263 P.3d 786 (2011), Herndon claims the imposition of “postrelease following an indeterminate sentence” constitutes an illegal sentence. The State concedes the imposition of lifetime postrelease supervision was erroneous in this case.
An illegal sentence may be corrected at any time. K.S.A. 22–3504(1). Here, the district court imposed an illegal sentence when it imposed lifetime postrelease supervision and lifetime parole when sentencing Herndon. In Cash, the court held the imposition of postrelease supervision must be vacated when a defendant is subject to parole for an indeterminate sentence. 293 Kan. at 329–31.
Likewise, Herndon was sentenced to “life imprisonment with a requirement of service of 25 years in prison before eligibility for parole”—an indeterminate life sentence for an off-grid crime. The district court erred in imposing lifetime postrelease supervision. That portion of Herndon's sentence must be vacated.
We affirm Herndon's convictions and vacate that portion of his sentence requiring lifetime postrelease supervision.