Opinion
111,254.
05-29-2015
STATE of Kansas, Appellee, v. Clinton Lee McKINNEY, Appellant.
Peter Maharry, of Kansas Appellate Defender Office, for appellant. Timothy Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Timothy Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
After falling asleep in the back of a car outside her aunt's home, 16–year–old A.J.L. awoke to discover Clinton Lee McKinney, age 36, repositioning her. Despite her best efforts to fight him off, McKinney sexually assaulted A.J.L. The State charged McKinney with several offenses, and a jury convicted him of rape, aggravated criminal sodomy, and furnishing alcohol to a minor. On appeal McKinney raises three trial errors that he contends warrant reversal of his convictions and sentence.
First, he argues that the prosecutor committed misconduct when she told the jury that McKinney “took [A.J.L.'s] innocence.” Although we find the prosecutor's comments outside the wide latitude afforded prosecutors, we find the comments did not deprive McKinney of a fair trial.
Second, he contends the district erred when the judge gave the jury the standard instruction regarding McKinney's failure to testify, when McKinney did not request it. Because Kansas caselaw and the record in this case both indicate that the instruction was not clearly erroneous, his claim of error fails.
Finally, McKinney asserts that sentencing him based on his prior criminal history without submitting that history to a jury for proof beyond a reasonable doubt is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). But our Supreme Court has repeatedly rejected this claim, and we are obligated to follow Supreme Court precedent and likewise reject McKinney's claim.
Factual and Procedural History
Although McKinney's issues on appeal are not heavily fact dependent, a brief overview of the facts elicited at trial are included to provide context.
One night in August 2012, several individuals—including McKinney, his casual girlfriend Adriana Wahwasuck, A.J.L., and other members of A.J.L.'s family—sat outside in a vehicle and drank socially. A.J.L. drank about three beers and recalled McKinney providing at least one of the three. At some point in the evening, only A.J.L. and McKinney remained outside in the vehicle. Although A.J.L. fell asleep “with her leg propped up against the [car] window,” she awoke a short time later to McKinney adjusting her position against her will. Despite A.J.L.'s attempts to fight him off, McKinney removed her shorts and underwear. A.J.L. later told a law enforcement officer that McKinney digitally raped her and told a victim-services representative that McKinney performed nonconsensual oral sex on her. At trial, A J.L. would testify first to the nonconsensual oral sex and later clarify that McKinney also raped her digitally.
At around the same time as the sexual assault, Wahwasuck exited the house in search of McKinney and discovered him in the vehicle with A.J.L. Wahwasuck, who did not at first recognize A.J.L., attempted to break up the encounter by shouting at them. Wahwasuck engaged in altercations with both A.J.L. and McKinney before eventually obtaining help at a neighbor's house. A.J.L. herself fled into the woods and remained there until police officers located her.
During a police interview, A.J.L. reported that McKinney had raped her a few weeks before the August 2012 assault, but admitted that she failed to alert anyone to the rape because “she was afraid that she would get in trouble or be taken away from her parents.” Although McKinney initially reported that the only altercation that August night involved a fight between A.J.L. and her father, he later admitted to law enforcement that he had kissed A.J.L. and performed oral sex on her. McKinney also acknowledged that “something had happened” between him and A.J.L. at an earlier date, but he could not recall any details.
The State proceeded to charge McKinney with a number of offenses related to this series of events. The State amended the complaint several times, but the final version for the first jury trial charged five offenses: rape of A.J.L. in July 2012, aggravated criminal sodomy against A.J.L. in August 2012, criminal restraint of Wahwasuck, battery against Wahwasuck, and furnishing alcohol to a minor (namely, A.J.L.). After hearing all the evidence, the jury acquitted McKinney of the charges concerning Wahwasuck but failed to reach a verdict on any of the charges concerning A.J.L.
The case proceeded to a second jury trial on a sixth amended complaint charging the three remaining offenses: rape, aggravated criminal sodomy, and furnishing alcohol to a minor. The jury ultimately found McKinney guilty of all three offenses.
The district court imposed a total of 300 months' imprisonment. McKinney timely appealed.
Analysis
The prosecutor did commit misconduct in closing argument, but it was harmless.
McKinney first argues that the State committed misconduct during its closing argument. Specifically, he contends that the prosecutor inflamed the jury when she stated during closing argument that McKinney “took [A.J.L.'s] innocence.”
When a claim of prosecutorial misconduct is based on comments made during closing argument that are not evidence, this court will review the issue even absent a contemporaneous objection. See State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014). Appellate review of this type of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, this court determines whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the court must then determine whether the improper comments compel reversal because the statements prejudiced the jury against the defendant and denied the defendant a fair trial. 299 Kan. at 416. This second step considers 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. Williams, 299 Kan. 509, 540, 324 P.3d 1078 (2014). None of these factors is individually controlling, and before the third factor can override the first two, an appellate court must be able to say that both the statutory and constitutional harmless error tests have been met. 299 Kan. at 540–41.
During McKinney's closing argument, he emphasized A.J.L.'s testimony regarding her alcohol consumption on the night in question, noting that “she testified that she was passed out in the car because she had had way too much to drink.” McKinney essentially argued that A.J.L.'s alcohol intake affected her memory of both sexual assaults. During rebuttal, the prosecutor directly responded to this argument by stating:
“Ladies and Gentlemen, [A.J.L.] shouldn't have been drinking, but would we be having this conversation if she had had her wallet stolen? She's a fifteen, sixteen year old [girl]. He's a thirty-six year old man. Mr. McKinney took something from her much more valuable than any wallet, he took her innocence.”
It is the final comment concerning A.J.L.'s innocence that McKinney objects to on appeal.
Prosecutors are permitted “to argue reasonable inferences based on the evidence presented at trial.” State v. Peppers, 294 Kan. 377, 394, 276 P.3d 148 (2012). However, they “should not make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.” State v. Corbett, 281 Kan. 294, 313, 130 P.3d 1179 (2006). Prosecutors must instead “guard against appeals to jurors' sympathies or prejudices.” State v. Hall, 292 Kan. 841, 853, 257 P.3d 272 (2011).
The leading case on this particular issue is State v. Brinklow, 288 Kan. 39, 200 P.3d 1225 (2009). There, the defendant repeatedly fondled his stepdaughter over a month's time. During closing argument, the prosecutor concluded some comments on the family dynamic by saying that nothing ‘ “entitle [d] anybody to take the childhood of [the victim] and that's what happened.’ “ 288 Kan. at 51–52. On appeal, the defendant contended that this statement exceeded the wide latitude afforded to prosecutors. This court determined that the statement, although improper, was not prejudicial, and our Kansas Supreme Court echoed that assessment. 288 Kan. at 51–52. Although the court noted that, as a general rule, “the admission of irrelevant evidence regarding the effect of a crime on the victim or the victim's family is error,” it determined the comment to be “isolated and fleeting” and therefore insufficient to establish prejudice. 288 Kan. at 52.
Both before and after Brinklow, statements regarding the victim's innocence have been made by prosecutors in varying contexts. For example, in one case, the prosecutor argued that the defendant stole the “ ‘innocence of a little two-year-old girl.’ “ State v. Downey, No. 96,583, 2008 WL 142117, at *4 (Kan.App.) (unpublished opinion), rev. denied 286 Kan. 1181 (2008). Without significant discussion, this court determined that the statement was improper because it effectively “argue[d] the moral turpitude of [the defendant's] actions rather than criminal liability.” 2008 WL 142117, at *5. However, the court also determined that the statement failed to prejudice the defendant as both the defendant and his counsel acknowledged that the sexual abuse occurred. 2008 WL 142117, at *5. Moreover, the court determined that defense counsel's remarks regarding the heinousness of the abuse during opening statements “suggest[ed] that the prosecutor's statement was not gross and flagrant and did not show ill will.” 2008 WL 142117, at *5.
In another case, State v. Beeson, No. 107,511, 2013 WL 2918616, at *3 (Kan.App.) (unpublished opinion), rev. denied 298 Kan. –––– (November 22, 2013), the prosecutor repeatedly stated that the defendant stole his victim's innocence. Reviewing the record, this court determined that the evidence presented at trial demonstrated that the victim “did not know or understand what sex was” prior to the assault and that she in fact learned about sex from the defendant. 2013 WL 2918616, at *3. As such, this court determined that, unlike in Brinklow, the prosecutor's comments regarding the victim's innocence constituted reasonable inferences drawn from the evidence and were not misconduct. 2013 WL 2918616, at *3. The same is true in State v. Cormack, No. 101,779, 2011 WL 1196870, at *7 (Kan.App.2011) (unpublished opinion), where this court determined that the prosecutor's statements about the defendant stealing his victim's childhood constituted a reasonable inference drawn from the evidenceincluding testimony that the defendant told the victim that he wanted her “ ‘to be a kid as long as [she] could’ “ at some point before he sexually assaulted her.
Here, unlike in Beeson and Cormack, none of the evidence at trial concerned A.J.L.'s childhood or innocence. As such, the prosecutor's statement constituted an improper comment on the effect of the crime on A J.L. See Brinklow, 288 Kan. at 52. However, McKinney fails to demonstrate prejudice from this improper remark. First, like the comment in Brinklow, the statement regarding stolen innocence was isolated and fleeting. The prosecutor only referenced A.J.L.'s innocence once in rebuttal. Even considering that this comment concluded the State's closing argument, nothing about this single reference appears to be gross or flagrant. Second, a look at the comment's broader context indicates that the prosecutor was simply drawing an analogy between the offense charged and a theft. Nothing in this analogy or in the comments leading up to it suggests that the prosecutor acted out of ill will. Additionally, the evidence against McKinney—including McKinney's own statements to law enforcement, DNA evidence, and both A.J.L.'s and Wahwasuck's accounts of that evening—was direct and overwhelming.
In short, and in light of all of the evidence against McKinney, this single, isolated remark was insufficient to prejudice the jury. Therefore, although the prosecutor committed misconduct, that misconduct did not deprive McKinney of a fair trial, and his claim of error fails.
The district court did not err in giving a jury instruction regarding McKinney's failure to testify that neither party requested .
Next, McKinney argues that the district court erred when it gave the jury an instruction he never requested. McKinney contends that this instruction, which discusses a criminal defendant's failure to testify at trial, should only be given when a defendant specifically requests it. Giving the instruction without such a request, he argues, is both erroneous and prejudicial.
Preliminarily, McKinney failed to object to this instruction at trial. As such, this court must determine whether the instruction was clearly erroneous. See K.S.A.2014 Supp. 22–3414(3). When determining whether a challenged instruction is clearly erroneous, this court uses a two-step process. First, the court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate. Then, if the court finds error, it must assess “whether it is firmly convinced that the jury would have reached a different verdict without the error.” State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014). Both steps employ an unlimited review based on the entire record, and the party claiming error has the burden to prove the degree of prejudice necessary for reversal. 299 Kan. at 135.
The instruction at issue, PIK Crim. 4th 51.080, concerns a criminal defendant's decision to not testify and reads as follows: “A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference of guilt from the fact that the defendant did not testify, and you must not consider this fact in arriving at your verdict.” The Notes on Use associated with this instruction advise that it “should not be given unless there is a specific request by the defendant.” PIK Crim. 4th 51.080.
McKinney asserts that the district court's decision to instruct the jury regarding his failure to testify was prejudicial error because it impermissibly drew attention to his silence. But in State v. Perry, 223 Kan. 230, 235–36, 573 P.2d 989 (1977), our Kansas Supreme Court clearly held that an earlier version of this instruction “is not a prejudicial reference to defendant's failure to testify” or “a comment upon defendant's silence tending to impair the privilege.” There, the district court administered the instruction over the defendant's objection. On appeal, the defendant argued that instructing the jury on that issue without him expressly requesting the instruction constituted a prejudicial comment on his failure to testify. But although the court found it “preferable that trial courts not give the instruction where there is but one defendant on trial and that defendant objects,” it ultimately determined that the instruction “was applicable, germane, and accurate.” 223 Kan. at 236. As such, the court determined that giving the instruction neither prejudiced the defendant nor warranted reversal. 223 Kan. at 236. Later, in State v. Goseland, 256 Kan. 729, 738–39, 887 P.2d 1109 (1994), the Supreme Court referenced the holding in Perry when determining that giving the instruction absent the defendant's request was not clearly erroneous.
As previously noted, McKinney never objected to the district court's proposed instruction. The record reflects that he never objected to the use of PIK Crim. 4th 51.080 at his first trial either. He offers no argument that the instruction is legally or factually inappropriate but instead simply contends that it prejudiced him. However, both Perry and Goseland indicate that the decision to give this instruction, even over a defendant's objection, is not prejudicial enough to warrant reversal. See Goseland, 256 Kan. at 739 ; Perry, 223 Kan. at 236. Moreover, given the significant amount of evidence against McKinney—including A.J.L.'s testimony and recorded statements, DNA evidence, and McKinney's own admission to sexually assaulting A.J.L.—it is incredibly unlikely that the jury would have reached a different verdict even if the district court had elected against the instruction. See Betancourt, 299 Kan. at 135 (under the clearly erroneous framework, the appellate court must be “firmly convinced that the jury would have reached a different verdict without the error” in order to reverse). As such, the instruction at issue was not clearly erroneous.
As a final note, the State appears to argue that McKinney acquiesced to the instruction by allowing it to be given at not one but two trials. In support of this position, the State points to language in Goseland in which the court discussed the various ways the defendant's counsel “opened the door” to the instruction. See 256 Kan. at 739. There, the defendant's counsel referenced the constitutional right to not testify during voir dire and noted that the district court would instruct the jury about the defendant's failure to testify. After the defendant officially decided against testifying, the district court warned the parties “of the intention to give the failure-to-testify instruction to the jury.” 256 Kan. at 739. The defendant never objected and in fact argued in his motion for new trial that the jury disregarded that particular instruction.
But our Kansas Supreme Court never directly addressed whether this alleged acquiescence played a role in its ultimate decision. Instead, the court simply noted the behaviors suggestive of acquiescence before affirmatively holding that the instruction was not clearly erroneous. 256 Kan. at 739. Moreover, the circumstances in Goseland are quite different than in this case. Here, neither the parties nor the district court forewarned McKinney that this instruction would be given, and neither party included the instruction in the list of proposed instructions. And although McKinney's counsel mentioned McKinney's constitutional right to not testify during voir dire at both trials, he never suggested that the jury would definitely be instructed regarding that right. Even though the district court instructed the jury regarding McKinney's failure to testify at both trials, it does not appear McKinney opened the door to the instruction and then somehow acquiesced to its use.
Regardless, our Kansas caselaw and the record both indicate that the district court's decision to instruct the jury on McKinney's failure to testify was not clearly erroneous. As such, McKinney's claim of instructional error fails.
Sentencing McKinney based on his prior criminal history did not violate his constitutional rights.
McKinney last argues that sentencing him based on his prior criminal history without submitting that history to a jury for proof beyond a reasonable doubt is unconstitutional under Apprendi. However, he concedes that State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), controls on this issue.
Because this issue is a question of law, this court exercises unlimited review. 273 Kan. at 46. In Ivory, our Supreme Court analyzed the interplay between Apprendi and the use of a defendant's prior criminal history both by considering cases decided before Apprendi and by researching decisions from other states and federal courts. Ivory, 273 Kan. at 46–47. After considering these, the court decided that Apprendi's mandate that facts other than prior convictions be submitted to a jury and proved beyond a reasonable doubt does not apply to a defendant's criminal history score. Ivory, 273 Kan. at 46. Additionally, the court declined to treat prior convictions as essential elements that require a jury's decision. 273 Kan. at 47.
This court is obligated to follow our Supreme Court's precedent unless it is departing from a prior position; as recently as September 2014, this court found that “[t]here is no indication that the Kansas Supreme Court is departing from its holding in Ivory. ” State v. Marshall, 50 Kan.App.2d 838, 853, 334 P .3d 866 (2014), petition for rev. filed October 3, 2014. Therefore, Ivory applies and the use of McKinney's criminal history score in sentencing does not violate Apprendi.
Finding no error, we affirm McKinney's convictions and sentence.
Affirmed.