Opinion
No. 110,348.
2014-10-10
STATE of Kansas, Appellee, v. Jason E. TRAVELBEE, a/k/a Jaison E. Travelbee, Sr., Appellant.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jason E. Travelbee appeals his convictions and sentences for aggravated battery, aggravated assault, and theft. These convictions arise from a shoplifting incident at a JC Penney's store in Wichita. On appeal, Travelbee challenges the trial court's instructions to the venire panel, the prosecutor's statements during closing arguments, and the trial court's imposition of an application fee for appointed counsel. Finding no error, we affirm.
Factual and Procedural Background
On November 10, 2012, Chase Camarena and Enrique Rodriquez were loss prevention officers at the JC Penney's store. They watched Travelbee and his companion, Tracy June Cordray, take items from shelves, stuff them into their clothing, and walk from the store without paying for them. Camarena and Rodriquez confronted Travelbee and Cordray on the sidewalk, but the couple refused to return inside the store.
Camarena grabbed Travelbee's arm from behind and forced him to the ground. After some commotion, Travelbee got back on his feet and brandished a “camouflage folding knife” with a 4–inch blade at Camarena and Rodriquez. Keeping Camarena and Rodriquez at bay with the knife, Travelbee walked towards the parking lot while in possession of the stolen items. When Travelbee reached his vehicle and was “fumbling for his keys,” Camarena lowered his shoulder and tackled him.
At the time, Travelbee still held the knife, and it was driven into Camarena's chest, puncturing his right lung. Camarena and Rodriquez testified that Travelbee thrust the knife upward into Camarena's chest. On the other hand, Travelbee testified that as Camarena tackled him, “I fell backward, [and] he fell on top of me. When I felt the knife start to go into his body, I jerked back and dropped it to the ground.” Travelbee denied the stabbing was intentional, but he admitted to being in a “ready” position with the knife when Camarena made contact.
The trial court instructed the jury on aggravated battery committed while knowingly causing bodily harm. The jury was also instructed on the lesser included offense of aggravated battery committed negligently. The jury found Travelbee guilty of the lesser included aggravated battery committed negligently, aggravated assault, and theft. Travelbee appeals.
The Reasonable Doubt Instruction
For his first issue on appeal, Travelbee contends the trial court read to the venire panel an outdated version of the reasonable doubt instruction (PIK Crim.3d 52.02). This was one of several instructions the trial court read to the venire panel before voir dire. The trial judge prefaced these instructions:
“I'm going to give you some preliminary instructions. Hopefully this will make you a little more comfortable with the jury selection process, with the trial process, and with what your role, your function, your job would be as a juror if you're actually selected to be a juror in this case.”
With regard to reasonable doubt, the district court said:
“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.”
Travelbee did not object to the district court providing the venire panel this version of the reasonable doubt instruction.
After both parties rested their case, the trial court instructed the jury orally and in writing:
“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.”
This particular instruction was a more recent version of the reasonable doubt formulation. See PIK Crim.3d 52.02 (2010 Supp). The jury then heard closing arguments and retired to deliberate.
K.S.A.2013 Supp. 22–3414(3) establishes a preservation rule for instruction claims on appeal and
“provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous appellate review is not predicated upon an objection in the district court.” State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).
In the present case, Travelbee candidly concedes that he did not contemporaneously object to the district court's preliminary instruction on reasonable doubt which was read to the venire panel. He argues, however, that the giving of this instruction was clearly erroneous.
In our determination of whether an instruction was clearly erroneous, we “must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” 295 Kan. 506, Syl. ¶ 4.
Travelbee acknowledges State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013), where—on clear error review—our Supreme Court held an identical instruction to the preliminary instruction given here was “legally appropriate.” Travelbee attempts to distinguish Herbel by arguing such an instruction before voir dire is worse than if given before the jury retires for deliberations, as in Herbel, 296 Kan. at 1120. But this argument ignores our Supreme Court's finding that the prior version of PIK Crim.3d 52.02 was not erroneous but merely “not the preferred instruction.” 296 Kan. at 1124. As a result, the challenged instruction was not erroneous when given before voir dire as well, and considering the preferred instruction was later given to the jury panel shortly before deliberations, Travelbee has not shown error.
Prosecutorial Misconduct
For his second issue on appeal, Travelbee contends he was denied a fair trial by two instances of prosecutorial misconduct during closing arguments. The State denies these instances constituted misconduct but it maintains that, if error occurred, Travelbee was not deprived of a fair trial.
At the outset, our Supreme Court has established the appropriate appellate standards of review in cases wherein prosecutorial misconduct is alleged:
“To determine whether a prosecutor committed reversible misconduct, we first decide if the challenged comment exceeded the wide latitude of language and manner afforded the prosecutor when discussing the evidence. If the comment was outside these bounds, we next decide if the comment constitutes reversible error, which requires a finding that the comment was so prejudicial as to deny the defendant a fair trial. [Citations omitted.]
“In analyzing the second step of whether the defendant was denied a fair trial, we consider three factors: ‘(1) whether the misconduct was gross and flagrant; (2) whether it was motivated by prosecutorial ill will; 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.’ No one factor is controlling. [Citations omitted.]
“Before the third factor can ever override the first two factors, an appellate court must be able to say that the State can meet the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967). [Citation omitted.]. In Chapman, the United States Supreme Court directed that a constitutional error can be deemed harmless only if the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.' [Citation omitted.] If the error does not violate the United States Constitution, the harmless error analysis is defined in K.S.A. 60–261, and the test is whether ‘there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record.’ [Citation omitted.]
“Even though we have applied this dual harmless error standard, we also have observed that as a practical matter the result of the harmless error evaluation depends on the outcome of the constitutional standard. ‘[B]oth the constitutional and nonconstitutional error clearly arise from the very same acts and omissions,’ and the constitutional standard is more rigorous. Thus, the State necessarily meets the lower statutory standard under K.S.A. 60–261 if it meets the higher constitutional standard. [Citation omitted.]” State v. Kettler, 299 Kan. 448, 472–73, 325 P.3d 1075 (2014).
Travelbee first contends the prosecutor erroneously “told the jury it could, by definition, find [him] guilty of aggravated assault without finding that he placed another in reasonable apprehension of immediate bodily harm.” Travelbee was charged with committing aggravated assault against Rodriquez only, by “knowingly” placing him “in reasonable apprehension of immediate bodily harm, with a deadly weapon, to wit: a knife.” Camarena testified that Travelbee had waved the knife at him, but Camarena said, “[A]t that point I'm pretty sure he's just bluffing.” On the other hand, Rodriquez testified to a belief that he could have been cut or stabbed when Travelbee “pulled a knife out on [me] first.”
Some additional facts provide important context to the prosecutor's argument. Travelbee testified that after being taken down, he “was afraid for my safety.” He also alleged Camarena had grabbed Cordray “real rough” and that she had called to him for help. “[S]o I pulled my knife,” Travelbee said, and he placed himself in position to protect his female companion. The following occurred in cross-examination:
“Q.... [Y]ou actually took it to a higher level by introducing a deadly weapon; is that right?
“A. Yes, I did.
“Q. And then that deadly weapon was used to further you and your wife's escape from apprehension in that situation?
“A. My idea was not to escape from the situation. It was to get to a safe place. The only place I could think of that was safe was inside my truck.”
“Q. Why the knife? Why a knife? Why bring a knife to that situation?
“A. Because there was two of them and they had already slammed ... my head into the concrete numerous times. I wasn't sure what they were going to do next.
All I know is they had grabbed my wife....
“Q. You wanted to scare them?
“A. Well, yeah. I wanted to scare them. I wanted to keep them from harming me or my wife anymore than what I was already harmed,
“Q. Right. You didn't pull out your wallet?
“A. No.
“Q. You pulled out a knife?
“A. Yes.
“Q. And opened it?
“A. Yes.
“Q. And waved it at them?
“A. Yes.”
In closing arguments the prosecutor stated:
“Agg[ravated] Assault. This is for [Rodriquez]. No physical contact, but there's a weapon involved. He either did it knowingly or it's a not guilty. Well, [Rodriquez] testified he sees the knife come out, and he's very aware of that knife. [Travelbee] testifies that he produced a knife for a specific reason because he knew it would get a response from the person on the other side. He didn't pull out his wallet. He didn't pass a note saying, have a bomb. He didn't pull out a banana. He pulled out a knife. And he waved it. That, folks, is an agg[ravated] assault by definition.”
7
Travelbee did not contemporaneously object to the prosecutor's argument. For the first time on appeal, however, he claims the prosecutor's statement erroneously “informed the jury that it need not find that [Ramirez] was placed in reasonable apprehension of immediate bodily harm.” We are not persuaded by Travelbee's argument.
The central point of the prosecutor's statement was that Travelbee had knowingly placed Rodriquez in apprehension of immediate bodily harm, not that the jury could assume such an apprehension. The prosecutor was arguing, based on Travelbee's admissions in cross-examination, that he had pulled a knife and waved it to frighten Rodriquez. The prosecutor's reference to a “definition” was merely a rhetorical device for making the point—that unlike with the other absurd examples the prosecutor listed, the expected result of brandishing a knife would be to produce an apprehension of immediate bodily harm in the victim. In this regard, “prosecutors have some freedom to employ colorful language when arguing the State's case.” State v. Maestas, 298 Kan. 765. 777, 316 P.3d 724 (2014).
Travelbee also suggests the prosecutor's statement “could have misled or confused the jury because there was testimony at least one of the victims here was not placed in a reasonable apprehension of immediate bodily harm.” Travelbee then summarizes Camarena's testimony, but Camarena was not a victim of this crime, as the prosecutor clearly indicated in his statement. We conclude the prosecutor's argument did not exceed the wide latitude of language and manner afforded to the prosecutor when discussing the evidence.
Next, we address a second argument made by the prosecutor which Travelbee claims was reversible error. This statement occurred at the end of the prosecutor's first closing argument:
“You know, as I sat at my kitchen table last night writing this closing, I'm sitting there, I'm thinking to myself, you know, why, why did [Camarena] push so hard. Why did [Camarena] go after a guy with a knife. [Camarena] did not have a weapon. And then it dawned on me. [Camarena] looked at this guy, and thought he wasn't that dangerous. [Camarena] considered the facts, probably the appearance, and he has a female with him, and he thinks, he's not going to hurt me. Look at him, he's not dangerous. [Camarena] was wrong. [Camarena] got stabbed in the chest. When you consider the facts of this night and what happened, don't make the same mistake that [Camarena] did. Thank you.”
Travelbee raises two objections. First, he argues “the prosecutor created an imaginary script of what he believed Camarena thought during the incident.” With respect to an imaginary script, Travelbee cites State v. Jeffrey, 31 Kan.App.2d 873, 881, 75 P .3d 284 (2003), which, in turn, had cited State v. Kleypas, 272 Kan. 894, Syl. ¶ 83, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), overruled on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006). In Kleypas, our Supreme Court stated:
“A prosecutor is allowed to introduce relevant evidence to show the victim's mental anguish and, further, to make arguments and inferences from the evidence that the victim suffered such mental anguish, where relevant. However, prosecutorial comments referring to what the victim was thinking are improper because they ask the jury to speculate on facts not in evidence. It is improper for a prosecutor to create an ‘imaginary script’ in order to create and arouse the prejudice and passion of the sentencing jury.” 272 Kan. 894, Syl. ¶ 83.
The Kleypas precedent is not particularly applicable to the facts of the present case. Here, the prosecutor was not addressing Camarena's mental anguish but rather his bold recklessness. It is unclear why such an imaginary script would necessarily inflame the jury. The argument was certainly less inflammatory than in Maestas where the defendant was on trial for murdering his mother. The prosecutor there stated:
“ ‘And ladies and gentlemen, I ask you to look at this. This is not an easy case. The family has lost their mother, have to go through this with their brother. But you have to look at Lorenza Maestas, you have to look at these pictures as a result of Mr. Maestas' actions. And I wonder, as Mr. Maestas stood above his mother, stabbing her on the bed and on the floor, after she'd screamed for him to stop, was this a nightmare that's coming true, this is a worst nightmare of hers, or was this something that Mr. Maestas had been dreaming of? ’ “ Maestas, 298 Kan. at 776.
Our Supreme Court held this was “within the wide latitude to craft arguments based on the evidence.” 298 Kan. at 777. Our Supreme Court allowed that the statement was “a bit nonsensical and speculative,” but it believed the statement was “not improper under the facts. The victim was asleep in bed when the attack commenced, and the prosecutor was attempting a play on words given that circumstance.” 298 Kan. at 778.
Here as well, trial evidence supported the prosecutor's statement. Unlike in Kleypas and Jeffrey where the victims did not testify and the script was therefore imaginary, in the present case Camarena testified. He recounted an apparent disdain for Travelbee's capabilities, stating, “He had to be taken down,” but “at that point I'm pretty sure he's just bluffing.” Camarena further admitted under cross-examination to “tackl[ing] a man that you kn[e]w had a knife with him at one point in time.” Camarena was of course visible to the jury, and another witness agreed he was “the taller of the two loss prevention guys.” Travelbee's size was not mentioned in the testimony, but it was visible as well, and Camarena testified Travelbee “was stronger than what I thought.” The jury's direct perception of these two men as they described their conflict was all part of the evidence. See Todorovic v. U.S. Atty. Gen., 621 F.3d 1318, 1325 (11th Cir.2010) (demeanor “refers to the ‘carriage, behavior, bearing, manner and appearance of a witness .’ [Citations omitted.]”); 3A Wigmore on Evidence § 946 (Chadbourn rev. 1970) (“The witness' demeanor ... is always assumed to be in evidence.”).
In summary, there was evidence Camarena was not frightened by Travelbee. While Camarena never directly testified to thinking Travelbee was not dangerous, a reasonable person could arrive at that conclusion from the evidence. In this regard, “[a] prosecutor is permitted to draw reasonable inferences from the evidence and is given latitude in drawing those inferences.” State v. Lowrance, 298 Kan. 274, Syl. ¶ 2, 312 P.3d 328 (2013). We find no error.
Travelbee's second complaint focuses on the prosecutor's remark, “When you consider the facts of this night and what happened, don't make the same mistake that [Camarena] did.” In context, we understand the prosecutor's remark to admonish the jury not to be deceived into thinking that the evidence did not establish Travelbee's dangerousness. For his part, Travelbee contends “the prosecutor improperly argued that the jury should consider [him] to be a dangerous person and that it should be a factor in deciding guilt.”
“A prosecutor crosses the line of appropriate argument by making statements intended to inflame a jury's passions or prejudices or to divert the jurors' attention from their duty to decide a case on the evidence and controlling law.” State v. Armstrong, 299 Kan. 405, Syl. ¶ 2, 324 P.3d 1052 (2014). For example, a prosecutor committed misconduct by telling a jury “ ‘you may have other victims' [lives] in your hands if we release him.’ “ State v. Spresser, 257 Kan. 664, 669, 896 P.2d 1005 (1995).
We agree the comment highlighted Travelbee's dangerousness. We are not persuaded the prosecutor explicitly or implicitly encouraged the jury to base its verdict on that fact. Our concern is that the prosecutor's comment could be understood as an effort to unduly focus the jury on the evidence of Travelbee's dangerousness rather than evidence of the elements of the violent crimes charged. While the prosecutor's statement here was certainly not as direct as in Spresser, the focus on Travelbee's dangerousness could naturally evoke a protective or reactive response from the jury.
The trial court had instructed the jury on Travelbee's right to defend himself or another. On appeal, Travelbee maintains the prosecutor's argument could have undercut this theory. He asserts a jury could conclude a dangerous man, even if he had acted in defense of himself or another, would remain a danger unless incarcerated. While we are persuaded that Travelbee's assessment of the impact of the prosecutor's vague remark is speculative, we agree the comment was outside the bounds of the wide latitude of language and manner afforded when discussing the evidence.
Nevertheless, we conclude the prosecutor's statement was not so prejudicial as to deny Travelbee a fair trial. Gross and flagrant misconduct is typically repeated or emphasized, calculated in character, or made in violation of a long-standing rule. See State v. Marshall, 294 Kan. 850, 861, 281 P.3d 1112 (2012). In the present case, the prosecutor's misconduct was not repeated or referenced in his other closing arguments. While the comment violated the rule against appealing to the fears and prejudices of the jury, the words were more suggestive than directly argued and emphasized, keeping the misconduct from being gross and flagrant.
There is also no showing of ill will. While Travelbee would equate the intentional nature of the prosecutor's statement with ill will, an intentional act does not necessarily show ill will. Ill will is shown by “deliberate and repeated misconduct” or “indifference to the court's rulings.” State v. McCullough, 293 Kan. 970, 990, 270 P.3d 1142 (2012). In other words, although the prosecutor here meant to say what he said, the evidence does not show he meant to say it wrongfully. In context, the comment was more of a passing flourish than a deliberate and repeated trope. Considering also that Travelbee failed to object (as the State points out), the prosecutor was not speaking with indifference to a court ruling sustaining the objectionable remark.
Finally, having reviewed the entire record, we find the evidence was strong and, indeed, uncontroverted in most respects. The controverted points were whether Travelbee was acting in defense of himself or another and, if not, whether the aggravated battery was intentional or reckless. The second point is immaterial because the jury found the aggravated battery was reckless.
With regard to whether Travelbee was acting in defense of himself or another, his testimony and Cordray's made Camarena and Rodriquez out to be abusive and violent during the encounter. Travelbee asserted, for example, that one of the loss prevention officers “grabbed the back of my head and started slamming it into the ground. And then took my head and rubbed it across the concrete.” Cordray similarly maintained “[t]he two security officers were slamming [Travelbee's] head into the cement.” Cordray also testified that “one security officer came up and grabbed me ... by my throat.”
In marked contrast to this testimony, Camarena denied trying to “rough ... up” Travelbee, claiming instead, “I was trying to do it as, I guess, as gently as I could.” Camarena specifically denied Travelbee's assertion that he had rubbed his head into the concrete. Rodriquez admitted to touching Cordray, but he maintained they did not use force with her.
Eyewitnesses confirmed Camarena and Rodriquez' account. Stephen English, a passerby, testified that Camarena was not acting in “an abrasive manner or anything” towards Cordray and that neither Camarena nor Rodriquez “[w]ere laying hands” on Cordray when Travelbee had his knife drawn. Another passerby, Garrett Rae, testified that he did not see Camarena or Rodriquez strike Travelbee or Cordray.
The jury was instructed that Travelbee could use “a weapon or display to another person a knife when and to the extent that it appears to him and he reasonably believes such physical force or display is necessary to defend himself or someone else against the other person's imminent use of unlawful force.” The description of the threat posed by Camarena and Rodriquez as described by Travelbee and Cordray was so extreme and so contrary to accounts of the State's eyewitnesses—including two passersby not directly involved in the encounter—the jury had substantial evidence to base its conclusion that Travelbee had not responded reasonably during the encounter. Considering all three factors under the second step of the prosecutorial misconduct analysis, the prosecutor's comment about Travelbee's dangerousness did not deprive him of a fair trial.
Application Fee for Appointed Counsel
Finally, Travelbee contends the trial court abused its discretion by imposing the application fee for appointed counsel under K.S.A. 22–4529 without considering the hardship it might impose on him. Travelbee argues that because the statute grants the trial court discretion to waive all or part of the fee, the question is really one of statutory interpretation. The State agrees with Travelbee's framing of the issue, and it also agrees that this court's review is unlimited. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011); see also State v. Tague, 296 Kan. 993, 1005–06, 298 P.3d 273 (2013) (discretion is abused if it is based on an error of law).
The record shows the State filed the present case on November 15, 2012. On the same day, Travelbee made his first appearance and completed a financial affidavit for appointed counsel. Also on the same day, the trial court appointed counsel for Travelbee, imposed the $100 application fee “pursuant to K.S.A. 22–4529,” and ordered it “to be paid within 30 days.” Travelbee never challenged the imposition of the fee, and at sentencing the fee apparently remained unpaid. The trial court, therefore, included it in the journal entry of sentencing.
K.S.A. 22–4529 states in part: “Any defendant entitled to counsel ... shall pay an application fee of ... $100 ... to the clerk of the district court. If it appears to the satisfaction of the court that payment ... will impose manifest hardship on the defendant, the court may waive payment of all or part of the application fee.” Our Supreme Court has instructed that “[a] district court is to determine the propriety of imposing the K.S.A. 22–4529 application fee at the time of the initial determination to appoint counsel.” State v. Casady, 289 Kan. 150, 158, 210 P.3d 113 (2009). This initial “assessment determination does not require any subsequent findings by the district court.” 289 Kan. at 158.
If Travelbee had raised “the issue of the ability to pay” and demonstrated “circumstances that preclude payment of the application fee,” the trial court could have “reduce[d] or waive[d] a previously imposed application fee.” See 289 Kan. at 158–59. But Travelbee bore the burden of making such a showing. State v. Hawkins, 285 Kan. 842, 853, 176 P.3d 174 (2008). Since Travelbee did not raise the issue in the district court, the “fee ordered by the court [which] remains unpaid at sentencing” was properly included in the “sentencing order without additional findings.” See 285 Kan. at 853. In addition, the trial court's deferral of enforcement “of the obligation to pay the fee ... until the conclusion of proceedings” was proper so as not to impair Travelbee's right to counsel. See Casady, 289 Kan. at 158.
The result here is the same as in Hawkins:
“In this case, at Hawkins' first appearance, the district court ordered him to pay the application fee within 30 days. Apparently, Hawkins did not comply with that order and no action was taken to enforce it prior to sentencing. Nevertheless, an order was in place which Hawkins never attempted to modify. The sentencing court was not required to make any further inquiry. Accordingly, the Court of Appeals did not err in affirming the $100 application fee.” 285 Kan. at 854.
Travelbee has not shown the trial court abused its discretion by failing to comply with K.S.A. 22–4529.
Affirmed.