Opinion
No. 106,580.
2013-10-1
STATE of Kansas, Appellee, v. Cornelius SISSON, Appellant.
Appeal from Saline District Court; Jerome P. Hellmer, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Jeffery Ebel, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Jeffery Ebel, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Cornelius Sisson raises three arguments in his direct appeal following his convictions for various drug-related and traffic violations. First, he argues that the district court abused its discretion by providing a misleading and nonresponsive answer to one of the jury's questions during its deliberations. Second, Sisson contends that the State committed reversible error by failing to provide him with exculpatory evidence before trial. Third, Sisson argues that the court committed clear error by instructing the jury that drug paraphernalia includes a digital scale. We disagree and affirm his convictions.
Facts
At about 1:47 a.m. on December 4, 2010, Salina Police Department Officer Matthew Gawith watched Sisson's car fail to signal a right turn. Consequently, Gawith, who drove in a marked police car, activated his emergency lights and eventually his siren.
Sisson, however, did not stop his car, and Gawith thus gave chase. During the chase, Gawith witnessed Sisson commit at least six moving violations: He ran a stop sign, drove 50 miles per hour (mph) in a 30 mph zone, twice failed to stay within his lane, and failed to signal a right turn at least twice.
Sisson, the sole person in the vehicle, stopped his car about 10 blocks from where the chase began. Police Officer Aaron Carswell, who joined the chase in a separate police car, helped Gawith arrest Sisson. The officers searched Sisson's person and car; they found a digital scale with white powdery residue—perhaps cocaine—and a bag apparently containing marijuana.
At about this time, Officer Crystal Gile began to retrace the route of the chase. A few blocks away from the scene of arrest, Gile found and confiscated nine bags apparently containing marijuana and one bag apparently containing crack cocaine.
On January 28, 2011, the State filed a 14–count amended complaint against Sisson in the Saline County District Court. The complaint alleged two distinct counts of marijuana possession: simple possession and possession with intent to sell. The complaint also alleged that Sisson possessed drug paraphernalia, fled and eluded police, possessed cocaine, possessed more than 28 grams of marijuana without a tax stamp, and possessed more than 1 gram of cocaine without a tax stamp. Like the original complaint, the amended complaint did not delineate which source of cocaine—the residue found on the scale or the bag found in the street—formed the evidentiary basis for the charge.
A preliminary hearing ensued. There, Gawith made a passing remark about a video recording of the chase. Specifically, when asked whether he could see Sisson throw anything from his car window, Gawith replied, “No, there was enough dust and stuff coming off the gravel, and, if I may elaborate, I looked at the video later to see if I could see it and there was just too much dust ... to see on that particular street.” (Emphasis added.)
Also at the hearing, Gawith twice referred to the residue on the scale that appeared to be cocaine. The State, however, did not argue that the residue could satisfy the cocaine possession charge.
Sisson's trial followed his preliminary hearing. After Gawith testified that a video camera located inside his patrol car recorded the entire chase, the State sought to admit the video recording into evidence. But Sisson objected, stating that “we've never been provided a copy of that video, so I've never had a chance to review it, I have no idea what's on it.” In response, the State said that the video has been available “the whole time” and that the court had not issued a discovery order. Sisson, however, told the court that he had sent a request-for-discovery letter to the State. This letter has not been included in the appellate record.
Ultimately, the district court admitted the video into evidence but ordered the State to make the video available to defense counsel for review. The State then played the video to the jury. Interestingly, the video proved to be a help and hindrance to both parties. The State used the video to show that the car chase occurred and that Sisson had committed a host of moving violations. But defense counsel, particularly in closing argument, used the video to demonstrate that it failed to show when and where, if at all, Sisson threw drugs out of his car window. Indeed, the video highlighted an important weakness in the State's case against Sisson, in that none of the officers actually witnessed Sisson throw anything out from his car window.
Also at trial, the State elicited testimony from Cynthia Wood, a forensic chemist who confirmed that the bag found on Sisson's person contained marijuana and that the scale contained a small amount of cocaine residue that could not be weighed. With respect to the drugs found in the street by Gile, Wood testified that one of the bags contained cocaine and that three of the nine remaining bags she tested contained marijuana.
Following the State's case-in-chief, Sisson testified in his own defense. According to Sisson, he used the scale to measure the amount of seasoning in his cooking. Sisson previously gave this same explanation to police.
Afterward, the district court, without objection from Sisson, submitted its instructions to the jury. Jury Instruction Nos. 9, 10, and 11 concerned the drug paraphernalia charge. Instruction No. 11 stated that drug paraphernalia “means all equipment, and materials of any kind which are used or primarily intended or designated for use in preparing, packaging, repackaging a controlled substance.” The instruction then stated that drug paraphernalia includes “scales.” Jury Instruction No. 13, meanwhile, concerned the cocaine possession charge and required the State to prove, in part, that “Sisson intentionally possessed cocaine.”
During deliberations, the jury asked the court the following question: “Re: possession of cocaine. Are we considering cocaine residue on the scale as an amount sufficient to allow [the State] to prosecute for possession?” Accordingly, the court discussed this question with Sisson and the State. Sisson told the court that he thought the cocaine possession charge was linked to the cocaine found in the road rather than the residue found on the scales. In rebuttal, the State argued that the court should instruct the jury that a conviction on the charge necessitated jury unanimity on at least one source of the cocaine possession—the cocaine residue found on the scale or the cocaine bag found in the road.
The district court agreed with the State and thus responded to the jury: “You must find unanimously as to which item they believe to be cocaine.”
Ultimately, the jury convicted Sisson of the following charges: possession of marijuana (simple possession), possession of drug paraphernalia, possession of cocaine, and fleeing and eluding a police officer while committing five or more moving violations. The jury, however, acquitted Sisson of the following charges: possession of marijuana with intent to sell, possession of more than 28 grams of marijuana without a tax stamp, and possession of more than 1 gram of cocaine without a tax stamp.
After trial, the district court ordered Sisson to serve a 58–month prison sentence. Sisson appeals his convictions.
Did the District Court Err in Responding to the Jury's Question about the Cocaine Residue?
Standard of Review
“A district court's decision to respond to a jury's request for additional information during deliberations is reviewed for an abuse of discretion.” State v. Murdoch, 286 Kan. 661, 680, 187 P.3d 1267 (2008).
Analysis
Sisson claims the district court improperly responded to the jury's question about whether the cocaine residue could be sufficient to constitute possession. His argument is two-fold. First, he claims the court misled the jury by enabling it to convict Sisson for possessing cocaine residue even though the State based its prosecution on the cocaine found in the street. Second, he claims that the court's answer was nonresponsive and potentially restricted the jury from determining Sisson possessed and controlled the cocaine residue.
In rebuttal, the State contends that the court properly instructed the jury and, at worst, any error was harmless because the “jury clearly found that the substances located on the defendant were the basis for the convictions.”
Sisson's two arguments are addressed below.
Did the district court enable Sisson to be convicted of an uncharged crime?
Here, Sisson claims that the district court erred in its response to the jury's question because the court, in essence, enabled the jury to convict him for possession of cocaine residue even though the State based its charge and prosecution upon the cocaine found on the street.
To the extent that Sisson argues the State based its prosecution upon the cocaine found in the street, he appears correct. Nonetheless, Sisson's argument fails because the district court—perhaps by the good graces of an attentive jury—properly informed the jury on unanimity.
Sisson persuasively argues that the State appeared to base its cocaine possession charge on the cocaine found in the street rather than the cocaine residue on the scale. Three parts of the record support this argument: The charging document, the State's conduct at the preliminary hearing, and the State's conduct at trial.
With respect to the charging document, the State did not specify in the document which source of cocaine formed the basis for the possession charge. Moreover, as Sisson contends, the parallels and differences between the cocaine- and marijuana-related charges suggest that the State intended to prosecute Sisson for the cocaine found in the street. Specifically, the State charged Sisson with possession of cocaine and possession of more than 1 gram of cocaine without a tax stamp— i.e., an amount greater than mere residue found on the scale. The State, meanwhile, alleged that Sisson possessed marijuana with intent to sell, possessed more than 28 grams of marijuana without a tax stamp, and committed simple possession of marijuana—presumably the marijuana found on Sisson's person. This suggests that the State may have based its cocaine possession charge on the cocaine found in the street because the State's cocaine charges did not mirror the marijuana charges. In fairness to the State, Sisson did not request a bill of particulars to clarify the factual basis of the cocaine possession charge.
Then, at the preliminary hearing, the State did not argue that the cocaine residue was evidence of the possession charge. Similarly, the State's efforts at trial to elicit testimony on the cocaine residue may have been intended to suggest that the scale was used as drug paraphernalia rather than, as Sisson testified, for measuring the amount of seasoning in his cooking. Or, as the State noted in closing argument, the cocaine residue on the scale linked Sisson to the cocaine found in the street to Sisson. Therefore, Sisson appears correct in his assertion that the State based its cocaine possession charge on the cocaine found in the street rather than the residue found on the scale.
Nevertheless, Sisson's argument fails. Initially, Sisson cites no cases to support his proposition that when multiple acts might satisfy one criminal charge, the criminal complaint must specify which particular act forms the State's basis for the charge. This proposition is not, as Sisson argues, supported by State v. Trautloff, 289 Kan. 793, 217 P.3d 15 (2009). Trautloff found a jury instruction to be clearly erroneous because the instruction expanded the scope of the crime charged in the criminal complaint. 289 Kan. at 802–03. Our Supreme Court noted that the jury instruction on the elements of the crime was broader than the crime specified in the charging document. 289 Kan. at 802–03. But in the instant case, the elements of the cocaine possession charge are the same in both the charging document and the jury instruction. Therefore, Trautloff does not support Sisson's argument.
Curiously, neither Sisson nor the State argues that this appears to be a multiple acts case. After all, the district court, in essence, responded to the jury's question with a last-minute unanimity instruction after the State and court discussed the holding in State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). Nonetheless, a brief word on multiple acts and unanimity instructions may help resolve this case.
A case involves multiple acts when factually separate incidents are alleged by the State in a single count of the charging document or criminal complaint, even though the State could have prosecuted the defendant under multiple counts. See State v. Voyles, 284 Kan. 239, 244, 160 P.3d 794 (2007). When the State relies on multiple acts to support one charge, a unanimity instruction is generally required to ensure that all jurors have agreed that the defendant committed one of the specific acts alleged. State v. Torres, 294 Kan. 135, 146, 273 P.3d 729 (2012). Consequently, either the State must inform the jury which act to rely upon in its deliberations or the district court must instruct the jury to agree on the specific criminal act. Voyles, 284 Kan. at 244–45. Failure to elect or instruct is error. 284 Kan. at 245.
Here, the district court remedied error, if any, by properly answering the jury's question. The jury, rather perceptively, asked the court whether the cocaine residue on the scale could also satisfy the cocaine possession charge. Consequently, the court told the jury that it “must find unanimously as to which item they believe to be cocaine.” If the jury did not ask its question, Sisson would probably have a pretty strong argument for clear error based on a lack of unanimity instruction, as the cocaine residue and cocaine found in the street constitute multiple acts of cocaine possession rather than merely multiple pieces of evidence of the same criminal act. See, e.g., Schoonover, 281 Kan. at 508.
But, in fairness to Sisson, if the State would have elected, before deliberations, only one act to serve as the factual basis for the cocaine possession charge, in all likelihood the State would have chosen the cocaine found in the street rather than cocaine residue. As stated above, Sisson raises a credible argument that he assumed the State based its possession charge solely on the cocaine found in the street.
Nonetheless, the district court did not abuse its discretion. Again, Sisson cites no cases to suggest that the State needed to specify, before jury instructions, which source of cocaine constituted the act of possession. If a unanimity instruction were required, the district court properly instructed the jury in response to the jury's question. This response, therefore, did not suggest to the jury that it could convict Sisson of an uncharged crime.
Was the district court's answer nonresponsive?
Sisson next argues that the district court's answer suggested to the jury that it could overlook two of the essential elements of drug possession: knowledge and control. In support of this argument, Sisson proffers two alternative responses to the jury's question:
“The district court could have told the jury that residue could support a possession conviction so long as the jury found, beyond a reasonable doubt, that Mr. Sisson had knowledge and control of the cocaine. Or the district court could have simply referred the jury to the elements instruction defining possession.”
This argument, however, potentially overlooks a longstanding rule of appellate practice: An appellate court must consider the jury instructions as a whole and not isolate any one instruction when considering whether the jury could have been misled. See, e.g., State v. Deal, 293 Kan. 872, 888, 269 P.3d 1282 (2012). This rule suggests that the court's response to the jury's question would not be considered on its own but, rather, in unison with other jury instructions. And here, the court's response did not suggest to the jury that it should disregard the other jury instructions, which expressly required the jury to determine whether Sisson possessed cocaine.
The State also makes a persuasive argument that even if error occurred, the error would not be reversible because “the jury clearly found that the substances located on the defendant were the basis for his convictions.” In support of this argument, the State cites to State v. Mitchell, No. 104,512, 2012 WL 1524025 (Kan.App.2012) (unpublished opinion), mandate issued May 31, 2012.
In Mitchell, the defendant drove away from police, fled from his vehicle on foot, and was eventually arrested. Police found a small amount of cocaine and marijuana on the defendant's person and a larger amount of cocaine in his vehicle. But at trial, the State failed to elect which source of cocaine would serve as the basis for the two cocaine possession charges: simple possession and possession with intent to sell. The district court, meanwhile, failed to instruct the jury on unanimity.
On appeal, this court determined that though the defendant was entitled to a unanimity instruction, no reversible error occurred. In support, this court observed that the jury acquitted the defendant of possession of cocaine with intent to sell—suggesting the jury did not believe the defendant possessed the cocaine found in the car—but convicted the defendant of simple possession. Additionally, the jury convicted the defendant of possession of marijuana, which further suggested that the jury believed the defendant possessed the drugs found on his person but not the drugs found in the vehicle.
Although an unpublished opinion, Mitchell nonetheless carries some weight as a persuasive authority. Here, the jury convicted Sisson of all three crimes in which the fruits of the crimes were found on Sisson's person: simple possession of marijuana; simple possession of cocaine, based on the residue; and possession of drug paraphernalia. The jury, meanwhile, acquitted Sisson of all crimes related to the drugs found on the street. Therefore, if the jury received a unanimity instruction before deliberations, the result would likely be the same.
Did the State Violate Sisson's Due Process Rights By Failing to Give Him, Before Trial, A Video Recording of the Police Pursuit of his Vehicle?
Standard of Review
Unless a defendant's due process rights are implicated, the district court has discretion on whether to admit evidence not previously disclosed in discovery. See State v. Rollins, 46 Kan.App.2d 17, 25–26, 257 P.3d 839 (2011), rev. denied February 17, 2012. However, an appellate court exercises unlimited review on a district court's determination as to the existence of a Brady violation with deference given to district court's findings of fact. See State v. Warrior, 294 Kan. 484, Syl. ¶ 13, 277 P.3d 1111 (2012).
Analysis
Here, Sisson claims that the State's failure to disclose the video recording before trial constitutes a violation of both K.S.A.2012 Supp. 22–3212 and Sisson's due process rights articulated by Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
In rebuttal, the State argues that Sisson was made aware of the video at the preliminary hearing and therefore cannot claim he was unfairly surprised by its admission at trial. The State also argues that the video did not prejudice Sisson's defense because he was acquitted of all charges stemming from the illegal drugs he allegedly threw out from his car window.
Sisson's two arguments on this issue are addressed below.
Did the State violate K.S.A.2012 Supp. 22–3212?
K.S.A.2012 Supp. 22–3212(b)(1) is as follows:
“ [U]pon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution, and which are material to the case and will not place an unreasonable burden on the prosecution.” (Emphasis added.)
Three additional subsections of the statute are of note: First, Subsection (d) states, “The prosecuting attorney and the defendant shall cooperate in discovery and reach agreement on the time, place and manner of making the discovery and inspection permitted, so as to avoid the necessity for court intervention.” K.S.A.2012 Supp. 22–3212(d). Second, Subsection (e) permits a district court, upon a sufficient showing, to “order that the discovery or inspection be denied, restricted, enlarged or deferred or make such other order as is appropriate.” K.S.A.2012 Supp. 22–3212(e). Third and finally, Subsection (g) authorizes a broad array of sanctions for violations of discovery orders in criminal cases, including permitting the discovery or inspection of materials not previously disclosed, granting a continuance, prohibiting the party from introducing into evidence the material not disclosed, or entering such other order as the court deems just under the circumstances. K.S.A.2012 Supp. 22–3212(g); Rollins, 46 Kan.App.2d at 25.
Sisson briefly argues that the State violated the provisions of K .S.A.2012 Supp. 22–3212 by failing to disclose the existence of the video recording before trial. This argument is without merit. Initially, Sisson had not included his request-for-discovery letter in the appellate record, and he also did not seek a pretrial order from the district court to ensure that the video or other similar evidence would be made available to him. Moreover, the State, albeit in passing, put Sisson on notice about the video when Gawith testified at the preliminary hearing that he reviewed the video and could not see Sisson throwing drugs out from his window. Therefore, even if the State violated the provisions of K.S.A.2012 Supp. 22–3212, Sisson failed to seek any remedy afforded under the statute before trial. This weakens his argument that the district court abused its discretion. See Rollins, 46 Kan.App.2d at 26 (district court did not abuse its discretion by admitting evidence not disclosed in discovery when defendant failed to request to review evidence before trial, made no assertion that the contents of the evidence surprised him, and did not ask for a continuance to examine the evidence to more thoroughly).
Also, as discussed in the next section concerning the alleged Brady violation, admission of the video did not prejudice Sisson's defense. Were Sisson's due process rights, under Brady, violated?
Sisson next argues that the State suppressed material exculpatory evidence, the video, and thus violated his due process rights under Brady v. Maryland, 373 U.S. 83. In rebuttal, the State argues that the Brady violation, if any, did not prejudice Sisson's defense and therefore does not constitute reversible error.
Preliminarily, review of the alleged Brady violation is hindered by a lack of an available record. Although Sisson objected to admission of the video because it was an unfair surprise, he did not cite Brady as a ground for objection. Similarly, the district court did not hold a hearing or make any findings of fact on whether a Brady violation occurred. Nonetheless, the substantive law and its application to the present case are discussed below.
The State has a duty to disclose evidence favorable to the accused when the evidence is material either to guilt or to punishment, regardless of whether the prosecution acted in good or bad faith. See Brady, 373 U.S. at 87;State v. Warrior, 294 Kan. 484, Syl. ¶ 7, 277 P.3d 1111 (2012). There are three components or essential elements to a claim that a criminal defendant's rights, under Brady, have been violated: “(1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material so as to establish prejudice. [Citations omitted].”
Although Sisson can likely satisfy the first prong—and possibly the second prong—of the test, he probably cannot establish the prejudice requirement. With respect to the first prong, the video was exculpatory because it cast doubt on whether Sisson possessed the drugs found in the street. See State v. Carmichael, 240 Kan. 149, 153, 727 P.2d 918 (1986). Indeed, Sisson exploited this fact throughout trial and in closing argument. Resolution of the second prong is more difficult, especially because Gawith referenced the video at the preliminary hearing. Even assuming Sisson can establish that the State suppressed the video before seeking to introduce it at trial, his argument still fails because Sisson cannot satisfy the third element.
Sisson cannot satisfy the prejudice prong of the Brady test as articulated in Warrior. The State's failure to disclose exculpatory evidence before trial is not reversible error when the evidence becomes available to the defendant during trial and does not prejudice the defendant's ability to defend against the charges. See State v. Humphrey, 258 Kan. 351, 356, 905 P.2d 664 (1995). Here, the jury acquitted Sisson of all crimes related to the drugs found in the street; therefore, Sisson was not prejudiced on any of those charges.
Sisson, however, argues that the late disclosure and admission of the video “prevented defense counsel from proper investigation of the circumstances of the pursuit and prevented defense counsel from limiting publication of the recording to that portion that supported his theory of the defense.” Arguably, the better practice would be for the district court to order a brief recess so that Sisson could review the video and prepare a defense before the State played the video to the jury. But, Sisson's argument for prejudice is so broad that essentially any late disclosure of evidence would constitute reversible error simply because it hindered defense counsel's preparation. And, as the State observes, even if the video had not been admitted into evidence, Gawith gave uncontroverted testimony that Sisson committed at least five traffic infractions—hardly a surprise to Sisson, the sole person in the vehicle that eluded Gawith—which would be sufficient to prove that Sisson fled from and eluded police. Therefore, even if the State's disclosure of the video violated the first two prongs of the Brady test, Sisson cannot prove that the disclosure prejudiced his defense, and therefore his conviction should be affirmed.
Did the District Court Err in Instructing the Jury that Drug Paraphernalia Includes Scales?
Standard of Review
“An appellate court reviewing a district court's giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). See also K.S.A. 22–3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” 288 Kan. at 451–52.
Analysis
In his final argument, Sisson claims that Jury Instruction No. 11, which told the jury that drug paraphernalia includes scales, was clearly erroneous because the instruction “essentially directed the jury that scales are paraphernalia.” In support of his argument, Sisson largely relies on State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003).
In rebuttal, the State cites a recent opinion by another panel of this court which, though unpublished, is directly on point and should apply here. See State v. Keel, No. 106,096, 2012 WL 4373012 (Kan.App.2012) (unpublished opinion), petition for rev. filed October 22, 2012. In Keel, the defendant, citing Brice, argued that the district court committed clear error by instructing the jury that drug paraphernalia shall include but not be limited to a pipe or bong. That panel, however, found that the instruction
“did not literally and expressly state that the objects found in Keel's residence were drug paraphernalia. Rather, the instruction merely listed specific objects that could constitute drug paraphernalia. Such language was necessary to inform the jury which objects the State claimed to be drug paraphernalia.” 2012 WL 4373012, at *5.
Moreover, the instruction was not clearly erroneous because a separate jury instruction necessitated the jury consider various factors when determining whether an object constitutes drug paraphernalia. 2012 WL 4373012 at *5. Therefore, no clear error occurred.
The same rings true here: Sisson's jury instructions, like those in Keel, did not literally and expressly state that the scale was drug paraphernalia, were necessary for the jury to determine which object the State claimed to be drug paraphernalia, and necessitated the jury to consider a host of factors when determining whether the scale was drug paraphernalia rather than to convict Sisson simply because he possessed a scale. Therefore, the instruction was not clearly erroneous. See also State v. Sophaphone, No. 102,472, 2010 WL 3324403, *1–3 (Kan.App.2010) (unpublished opinion) (no clear error when jury instructed that charge of drug paraphernalia required the State to prove “[t]hat the defendant knowingly possessed with intent to use drug paraphernalia, to-wit: a glass pipe for inhaling methamphetamine in the body ”), mandate issued December 8, 2010.
Sisson's convictions are affirmed.