Opinion
No. 107,009.
2013-03-15
STATE of Kansas, Appellee v. Donte WILLIAMS, Appellant.
Appeal from Wyandotte District Court; Ernest L. Johnson, Judge. Janine Cox, of Kansas Appellate Defender Office, for appellant. Sheryl L. Lidtke, deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Ernest L. Johnson, Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Sheryl L. Lidtke, deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Donte Williams appeals his conviction for aggravated robbery. We affirm.
Factual and Procedural Background
On December 18, 2008, Christopher Lee Hathaway was driving a tow truck to a call in Kansas City. As Hathaway waited at an intersection, Williams and another man entered the truck through the unlocked passenger-side door. The intruders claimed to have a firearm and ordered Hathaway out of the truck.
Hathaway drove away thinking “it would help [him] a little bit to get them out.” Instead, the two men pushed Hathaway out the driver's side door and onto the running board. The truck then swerved across the street and struck a pole, pinning Hathaway between the door and the cab.
Hathaway was injured and fell from the truck. He called 911, and the police located the truck through its GPS system. When the police stopped the truck Williams was driving but the other intruder was never found.
At trial, Williams testified on his own behalf. He claimed that on the day of the incident Hathaway had asked about purchasing drugs, and that he and the other man (whom he called “Mike”) had entered the truck to show Hathaway the location of a drug house. Williams testified that he remained in the truck as Mike took Hathaway into the drug house.
According to Williams, Mike left the house without Hathaway, climbed behind the steering wheel of the truck and began to drive away. Williams said Hathaway ran from the drug house, jumped onto the truck, and was injured when Mike intentionally “scraped the pole.” Williams said Mike drove to a secluded area, removed some of the truck's electronic equipment, and left.
Williams testified that he has a prosthetic leg and that he could not walk home. As a result, Williams “slid over and was going to go home and get out of this truck.” Before long, he was stopped by the police.
The State charged Williams with aggravated robbery. The trial court instructed the jury on the charged crime and on robbery as a lesser included crime. The jury found Williams guilty of aggravated robbery and he was sentenced to 206 months in prison. Williams filed a timely appeal.
Denial of Motion to Continue Jury Trial
On the morning of jury trial, June 8, 2009, proceedings were delayed due to last-minute plea negotiations. The parties were unable to reach an agreement, however, and Williams' appointed counsel, Jeffrey Leiker, advised the trial court that Williams' uncle was unsatisfied with the offer. Leiker also stated that although Williams was satisfied with Leiker's representation, he felt “like he might do better with a private attorney, as opposed to court-appointed counsel.”
The trial court asked Williams what more Leiker could have done to prepare for trial. Williams responded, “[N]othing. I have nothing against Mr. Leiker at all. It's just that I know in my heart, sir, that I didn't do the alleged crime.... And I was just curious about a plea. And it come [ sic ] back half.” The trial court responded that both Leiker and the State were prepared for jury trial. The court also observed that the case was set for trial on March 20, 2009—about 2 1/2 months earlier—and that Williams' family could have retained counsel but did not do so. The trial court denied the request for a continuance, stating that “other than not just wanting to go to trial today, I haven't heard anything that justifies a continuance.”
After his conviction, Leiker filed a motion for new trial based, in part, on the trial court's denial of the trial continuance. Williams then filed a pro se motion for new trial arguing in part that Leiker had “aided and abeted [ sic ] States [ sic ] attorney Sheryl Lidtke in violating Defendants [ sic ] rights.” Williams alleged, among other claims, that Leiker “made absolutely no effort prior to trial to develope [ sic ] defense strategy.”
On November 20, 2009, the parties appeared for a hearing on Williams' motions for new trial and for sentencing. Leiker noted Williams' pro se motion and told the trial court he was “incredibly uncomfortable proceeding as [Williams'] attorney given the fact the way [ sic ] he's attacked me in this new motion.” The prosecutor agreed, noting, “I think they have an irreconcilable conflict right now.” The trial court questioned Williams, who also maintained that Leiker had a conflict of interest. The trial court continued the matters and allowed Leiker to withdraw. With respect to new counsel, Williams informed the trial court he was still indigent.
On January 13, 2011, Williams appeared with newly appointed defense counsel, Zach Anthony, for a hearing on the motion for new trial and for sentencing. The trial court asked Anthony if he could locate in the trial transcript any expression by Williams of dissatisfaction with Leiker. Anthony responded: “Your Honor, the answer I believe is no. I don't believe that that happened.” Anthony further allowed, “[I]t would be a mischaracterization for me to argue [to] the Court that there was a breakdown of communication” between Williams and Leiker. The trial court denied relief, finding there was no “showing of any kind of justifiable [dissatisfaction] at the time the continuance was requested to get new counsel.”
On appeal, Williams claims he sought the continuance to “retain private counsel.” He contends the trial court's denial of the continuance “prejudiced” him by “denying him his Sixth Amendment right to counsel of his choice,” thereby denying “his right to a fair trial.” A trial court may grant a continuance “for good cause shown,” K.S.A. 22–3401, and this court reviews the ruling for abuse of discretion. See State v. Beaman, 295 Kan. 853, 862, 286 P.3d 876 (2012); State v. Kirkpatrick, 286 Kan. 329, Syl. ¶ 8, 184 P.3d 247 (2008).
In support, Williams cites State v. Anthony, 257 Kan. 1003, 898 P.2d 1109 (1995), and United States v. Mejia, 69 F.3d 309 (9th Cir.1995), while the State cites State v. Ly, 277 Kan. 386, 85 P.3d 1200,cert. denied541 U.S. 1090 (2004). We note that the defendant in State v. Cook, 281 Kan. 961, 988–89, 135 P .3d 1147 (2006), asked our Supreme Court to apply Anthony and Mejia rather than Ly because “the court's analysis in Ly is too restrictive.” As a result, Cook also should provide some guidance to resolving this issue.
Beginning with Ly, our Supreme Court held: “A defendant cannot establish prejudice from the trial court's denial of his or her motion for a continuance for the purposes of investigating evidence if he or she fails to investigate the evidence after the trial and submit any new evidence in a motion for a new trial.” 277 Kan. 386, Syl. ¶ 2. In Cook, our Supreme Court then rejected a suggestion that it ignore Ly and, relying on that case, noted the defendant had failed to submit such evidence. It therefore found no error.
At the outset, Williams fails to show he was financially able to retain private counsel, which is a focal point of why he claims his motion to continue was meritorious. Moreover, the record reflects that, upon Leiker's removal, Williams remained indigent and still did not retain counsel. Instead, he accepted the trial court's appointment of Anthony as defense counsel.
We believe Williams, like the defendant in Cook, does not show error. The State properly notes that Williams “failed to investigate after the trial whether there would have been any better plea offer available to [Williams] with new counsel.” “Mere speculation that with more time something favorable may happen for the defendant does not constitute good cause” shown for a continuance. Beaman, 295 Kan. at 864. Williams has failed to meet his burden to prove the trial court abused its discretion.
Prosecutorial Misconduct
At the start of trial, the prosecutor Sheryl Lidtke, made oral motions in limine. She said Williams had offered “speculation” to a certain “Detective Mendez ... about what [Hathaway] was doing that night,” i.e., looking for drugs. Lidtke thought “there ought to have to be something more than mere speculation before you introduce evidence of criminal activity of one of the witnesses.”
When the trial court referred to Detective Mendez' expected testimony, Lidtke informed the court that the detective would not be testifying because he was in Florida. Leiker objected that he had hand-delivered a subpoena to the police department a week before trial. Lidtke responded that the detective had “been gone longer than a week.”
The issue then arose whether to continue the trial. One question was whether Williams intended to testify, thereby placing his interview with Detective Mendez into evidence. When Williams stated that he would testify, the trial court decided Williams' own statements to the detective would be admissible.
After further discussion, the trial court informed Leiker, “I'm going to give you a few minutes to talk to your client ... about the absence of Detective Mendez.” After the break, Leiker informed the court that “while [Williams] would prefer [the detective] to be here, I think he is prepared to go to trial without him.”
At trial, Williams testified as summarized earlier. During cross-examination, Lidtke persistently questioned Williams on why he did not “tell the detective or the police officers” that Hathaway had come out of the drug house and jumped onto the tow truck as Mike was driving away. Williams answered: “He didn't ask me that. He asked me what I was doing. He didn't ask me about Hathaway.”
On redirect examination, Leiker reinforced Williams' stance that “the detective [who] took your statement” had not asked “about Hathaway or what Hathaway did.” When Lidtke returned to the issue on recross-examination, however, Leiker asked to approach the bench. He complained about the repetitive nature of Lidtke's questioning, but the trial court stated, “The way she's asked the questions so far has been to [elicit] a response from [Williams] about what he told the detective, as opposed to putting a detective's word out there like it was the statement. She's not orally using [Williams'] statement to impeach him.”
In closing arguments, Lidtke argued that Hathaway's testimony was more consistent than Williams'. She detailed how Williams' statements to the detective had omitted “that [Hathaway] came running after them. He never told the detective that [Hathaway] jumped up on to the truck. He never told the detective that they then smashed into the pole and caused [Hathaway] to jump off the truck ..., like what he said here yesterday.” Lidtke suggested that Williams, “having had six months to think about it, and realizing that he has to somehow explain the injuries that Mr. Hathaway has, [he] changes his story.”
In his closing argument, Leiker responded:
“She mentioned that [Williams] wasn't consistent with the detectives. I submit to you that he was very consistent with the detectives in this case. She asked him why he didn't tell certain facts and the answer was, They didn't ask me those questions.
“If she wanted to clear that up, we could have brought the detective in here. The State didn't produce that. It's their burden of proof, they have to show you. They didn't want to bring the detective in. They don't want you to hear what he had to say.”
Lidtke objected, stating: “That is a blatant falsehood. Could we approach, please?” At the bench, Lidtke argued: “Judge, that is totally inappropriate. Mr. Leiker knows that the detective is in Florida and unavailable. It has nothing to do with whether we want the jury to hear from the detective or not.” The trial court observed to Leiker that “it wasn't a fact ... in evidence that Ms. Lidtke made some kind of calculation not to call [the detective], and I think that's what you said.” Leiker responded: “That's exactly what I said. That's exactly what I meant.”
The trial court concluded that since the assertion was “not in evidence,” it would “tell the jury to ignore that part.” The trial court then admonished the jury: “Ladies and gentlemen, you should disregard any inference that you think might be drawn from the objected-to statement by Mr. Leiker about what Ms. Lidtke or the State intended or didn't intend by the fact that the detective, himself, didn't actively appear and testify.” Leiker thanked the judge and continued with his argument.
After the jury had retired, Leiker moved for a mistrial. Saying, “I think it's pretty obvious she called me a liar in front of the jury,” Leiker claimed “that when she did come up here and she was speaking into this microphone, she was talking at full voice, she wasn't whispering, I'm sure the jury heard all of that because they're a couple of feet from us.” Lidtke replied, “He did present a lie to this jury. That in itself is more egregious than what he's claiming I did.” Leiker said he had worked with Lidtke and knew “how thorough she is and how well she tries a case, I am absolutely positive that she deliberately did not call him.” The trial court repeated, “We didn't have any evidence that some tactical decision was made by the State.” Deciding the jury was not poisoned, especially in light of its “corrective direction,” the trial court denied the motion for mistrial.
Leiker reprised the argument in his motion for new trial. The trial court again rejected it, disagreeing that Lidtke had used “a loud and angry tone,” and finding instead “that voices were kept low ... it's not at all accurate that, in my recollection, that the jury would have been prejudiced by what happened in the bench conference itself.” The motion for new trial was denied.
On appeal, Williams contends “there is no doubt [Lidtke] called [Leiker] a liar,” and that the “comments constituted error.” The State “concedes that it was probably improper to imply that [Leiker] was not being honest.” The State explains this as “an emotional response” to Leiker's accusation regarding the detective, however, and it also argues any misconduct was not prejudicial.
“Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that a prosecutor is allowed in discussing the evidence. Second, if misconduct is found, an appellate court must determine whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial.
“When a prosecutor makes an improper comment during closing argument, an appellate court conducts a harmlessness inquiry, determining whether the misconduct was so prejudicial that it denied the defendant a fair trial. Three factors are considered. First, was the misconduct gross and flagrant? Second, was the misconduct motivated by ill will? Third, was the evidence of such a direct and overwhelming nature that the misconduct would likely have had little weight in a juror's mind? None of these three factors is individually controlling.
“In considering whether a prosecutor's misconduct denied the defendant a fair trial, the State, as the party benefitting from the prosecutorial misconduct, bears the burden to establish beyond a reasonable doubt that the error did not affect the defendant's substantial rights or, in other words, that there is no reasonable possibility the error affected the verdict.” State v. Marshall, 294 Kan. 850, Syl. ¶¶ 1, 3, 8, 281 P.3d 1112 (2012).
As to the first step, a prosecutor should not call a defense attorney or a defendant a liar. See State v. Magdaleno, 28 Kan.App.2d 429, 436–37, 17 P.3d 974,rev. denied 271 Kan. 1040 (2001); State v. Lockhart, 24 Kan.App.2d 488, Syl. ¶ 3, 947 P.2d 461,rev. denied 263 Kan. 889 (1997). However, a “prosecutor is allowed to make fair comment on trial tactics ... so long as care is taken not to inappropriately disparage opposing counsel.” State v. Crum, 286 Kan. 145, Syl. ¶ 4, 184 P.3d 222 (2008).
In the State's briefing and at oral argument Lidtke admitted that her comment impugning Leiker's honesty was improper. While conceding error, however, the State suggests Lidtke's “ ‘blatant falsehood’ “ comment was “incited by misconduct of [Leiker] himself.” There is a rule that “[n]o prejudicial error occurs where the questionable statements by a prosecuting attorney are provoked and made in response to prior arguments or statements by defense counsel.” State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009). We will not apply the rule in this instance.
Leiker's assertion about the detective's absence was improper, but Lidtke had just as little evidence for her prior assertion that Williams had spent his time in jail devising testimony to fit the facts. Given Lidtke's attack on his client, Leiker's assertion was not as unexpected as the State maintains on appeal. We, therefore, accept the State's concession that Lidtke's “ ‘blatant falsehood’ “ comment was improper.
Turning to the second step, Williams' arguments are conclusory. We deem points raised incidentally but not briefed to be waived or abandoned on appeal. State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011). We further agree with the State that Lidtke's “blatant falsehood” comment did not deny Williams a fair trial.
The prosecutor's comment was not gross and flagrant because it was brief and made only once. See Marshall, 294 Kan. 850, Syl. ¶ 6 (listing factors indicating gross and flagrant misconduct). The comment also did not indicate ill will, given that it appeared spontaneous and in immediate reaction to Leiker's unfounded allegation. Moreover, the comment was not “repeated, or in apparent indifference to a court's ruling.” 294 Kan. 850, Syl. ¶ 7. Finally, given the trial court's prompt admonishment to the jury and the considerable evidence of guilt, we are persuaded that “there is no reasonable possibility the error affected the verdict.” 294 Kan. 850, Syl. ¶ 8.
Questions Regarding Victim's Background
In opening statements, Leiker told the jury that Hathaway “decided to have a little bit of fun. And he flagged down my client to show him where to have some. This is a little bit of a drug area, if you know that area.” When the State called Hathaway, Lidtke began with questions about his age, his residence, his connections to Wyandotte County, his family background, his educational history, and his work history. Lidtke then directly asked Hathaway if he used illegal drugs, which he denied.
Next, Lidtke asked Hathaway about the location of his current employer and whether he drives his own vehicle to work. Hathaway said he formerly drove his own vehicle but now would “take a tow truck home with me.” The following exchange occurred:
“Q. So they allow you to take a company truck to and from work?
“A. Yes, ma‘am.
“Q. You live here in Wyandotte County. Do you live with somebody?
“A. Yes, ma‘am.
“Q. Who is that?
“A, My girlfriend and our seven kids.
“Q. And how long have the two of you been together?
“A. Almost eight years.
“Q. And are the eight kids yours and hers together?
“A. Right.”
Leiker objected and asked to approach the bench. He complained about the mention of Hathaway's “kids and his family responsibilities,” along with “a big background for his Wyandotte County basis.” Leiker argued “[i]t has nothing to do with the trial” and “[i]t's only being used to bolster credibility.”
Lidtke denied “trying to bolster [Hathaway's] credibility,” but she did state:
“Mr. Leiker is trying to paint him out to be a drug user, so I think I should be allowed a little leeway to demonstrate that he doesn't have the characteristics that a typical drug user might have, that he's a family man, that he has a good, stable job, and he's never used drugs before in his life.”
Leiker replied, “Unless he's going to testify as an expert to what illicit drug users do and their common habits, she can't get into that.”
The trial court overruled the objection, telling Leiker: “Your client is questioning his credibility and the State has the opportunity to lay a foundation for the anticipated charges to his credibility.” The court stated it had thought Leiker was objecting “because we had talked about sympathy,” adding it did not “see any of this having to do with sympathy.” Leiker responded “That's fine,” clarifying that his “objection was just that the testimony about his seven kids has nothing to do with this. And relevancy is really the objection, Judge.” The court again overruled the objection.
Lidtke then established that five of Hathaway's children were his own and that two were his girlfriend's children by another man. Lidtke also elicited that all seven children live with Hathaway, that their ages range from 1 to 14, and that they go to school in Wyandotte County.
On appeal, Williams challenges the evidence regarding the children, their number, their parentage, their residence, and their schooling. He argues the evidence was “designed” to play on the “jury's sympathy for [Hathaway].” Since Williams did not object at trial on this basis, however, any issue regarding sympathy was not preserved for appeal. See K.S.A. 60–404; State v. Harris, 293 Kan. 798, 813–14, 269 P.3d 820 (2012); State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011).
On appeal, Williams does renew his argument that the evidence “had no relevance to any material fact concerning what happened in the tow truck on December 18, 2008.” He asserts in a conclusory fashion that “Hathaway's testimony about his children was neither probative nor material.” The State contends the testimony was only “generic background information.”
“K.S.A. 60–401(b) defines relevant evidence as ‘evidence having any tendency in reason to prove any material fact.’ [Citation omitted.] This definition encompasses two components: whether the evidence is probative and whether it is material. [Citations omitted.] Probative evidence is evidence that “ ‘furnishes, establishes or contributes toward proof.’ “ [Citation omitted.] It is reviewed under an abuse of discretion standard. [Citation omitted .] Material evidence goes to a fact at issue that is significant under the substantive law of the case. [Citation omitted.] The determination whether evidence is material is reviewed under a de novo standard. [Citation omitted.]” State v. Garza, 290 Kan. 1021, 1027, 236 P.3d 501 (2010).
Courts recognize that “some background of any witness is appropriate and provides an initial basis for assessing credibility.” State v. Jacobs, 129 N.M. 448, 463, 10 P.3d 127 (2000). Background evidence elicited by preliminary questioning “is generally admissible although it may not relate to a consequential fact.” 2 Weinstein & Berger, Weinstein's Federal Evidence § 401.04[4][a] (2 ed.2012). “Even when such evidence is of low probative value in itself it can tell the jury something about the witness or party as a person and that person's experience in life, and this is generally considered to be relevant evidence.” 2 Weinstein's Federal Evidence § 401.04[4][a].
Considering Williams' defense at trial, the challenged evidence was admissible background information. But even if it was not, Williams does not show reversible error. See Smith, Sheriff v. Wilson, 5 Kan.App. 379, Syl. ¶ 1, 48 P. 436 (1897) (“Error in permitting preliminary questions to be propounded to witnesses, is not, necessarily, reversible.”). Since Williams alleges a violation of statutory evidentiary limitations, this court “applies the statutory harmless error standard of K.S.A. 60–261 and K.S.A. 60–2105 to determine if there is a reasonable probability the error affected the outcome of the trial in light of the record as a whole.” State v. Warrior, 294 Kan. 484, Syl. ¶ 15, 277 P.3d 1111 (2012). The State, as the “party benefiting from the introduction of the evidence,” has “the burden of persuasion.” 294 Kan. 484, Syl. ¶ 15.
Williams does not argue prejudice—once again abandoning or waiving the issue on appeal. See McCaslin, 291 Kan. at 709. The State does argue against prejudice, and we conclude the State has met its burden. See Warrior, 294 Kan. at 513. The evidence regarding the children could not have reasonably affected the outcome of the trial. All the jury knew was that Hathaway had a number of children with a live-in girlfriend, who in turn had children with another man. It is unlikely this information significantly affected Hathaway's credibility with the jury. Assuming there was error, it was harmless.
Lesser Included Crime Instruction
The trial court discussed proposed jury instructions and any possible lesser included crimes with counsel before the conclusion of evidence. Lidtke indicated that an instruction for “possession of stolen property” might be needed depending on Williams' testimony. Leiker agreed “that would probably be an appropriate instruction after his testimony.”
After Williams testified, Leiker requested an instruction on “possession of property, stolen property.” Lidtke then argued against it, identifying the relevant statute as “[s]ubsection 4 of 21–3701, which is being in possession of property.” Leiker argued “the evidence supports the instruction of possession of stolen property.” The trial court disagreed, however, finding no evidence that Williams intended to deprive the owner of the truck.
On appeal, Williams asserts he “requested the lesser included offense instruction of theft.” Williams does not provide a statutory citation or otherwise specify the form of theft, however. The State accurately observes, “The theft instruction requested by [Williams] fell under [K.S.A.] 21–3701(a)(4)–obtaining control over stolen property knowing it to have been stolen by another, done with intent to deprive the owner permanently of the possession, use, or benefit of said property.”
With regard to the instruction Williams requested below, possession of stolen property, we exercise unlimited review. See State v. Gallegos, 286 Kan. 869, 873, 190 P.3d 226 (2008). With respect to any other definition of theft, we review for clear error. See State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).
“To determine whether ... a failure to give an instruction was clearly erroneous, the reviewing court 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.
“If the reviewing court determines that the district court erred in ... failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” Williams, 295 Kan. 506, Syl. ¶¶ 4–5.
As applied here, a lesser included crime is “[a] lesser degree of the same crime.” K.S.A. 21–3107(2)(a). There must also be sufficient evidence, viewed in the light most favorable to the defendant, for the jury to reasonably convict of that crime. See State v. Harris, 293 Kan. at 803.
The relevant statutory elements of the crimes at issue are as follows:
“(a) Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property:
(1) Obtaining or exerting unauthorized control over property;
(2) obtaining by deception control over property;
(3) obtaining by threat control over property; or
(4) obtaining control over stolen property knowing the property to have been stolen by another.” K.S.A. 21–3701.
“Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21–3426.
“Aggravated robbery is a robbery, as defined in K.S.A. 21–3426 and amendments thereto, committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21–3427.
“Theft is a lesser degree of the same crime which embraces robbery and, therefore, pursuant to K.S.A. 21–3107(2)(a), theft is a lesser included crime of robbery and aggravated robbery.” State v. Plummer, 295 Kan. 156, Syl. ¶ 2, 283 P.3d 202 (2012). That being said, “K.S.A. 21–3701(a) describes different types of theft. Not all of them are lesser included offenses of robbery.” State v. Sandifer, 270 Kan. 591, 600, 17 P.3d 921 (2001); see also State v. Plummer, 45 Kan.App.2d 700, 704–05, 251 P.3d 102 (2011), aff'd,295 Kan. 156 (2012) (citing Sandifer on this point). For example, obtaining control over property by threat under K.S.A. 21–3701(a)(3) “is not a lesser included crime of robbery or aggravated robbery.” Sandifer, 270 Kan. at 600.
Inexplicably, Williams does not specifically brief whether possession of stolen property is a lesser included crime of robbery. There are holdings to the contrary, though for reasons we need not explain here it is unclear whether these holdings control the issue in the present case. See State v. Prince, 227 Kan. 137, 141, 605 P.2d 563 (1980); State v. Barnes, 45 Kan.App.2d 608, 617, 251 P.3d 96 (2011).
Assuming that possession of stolen property is a lesser included crime of robbery, we agree with the State that “[t]here was no evidence presented that [Williams] intended to ... permanently deprive the owner of the possession, use, or benefit of the property .” Significantly, Williams does not refute this argument on appeal. On the contrary, Williams asserts “he took the truck and was going to drive it home,” and that his “testimony was clear ... he did not do anything except drive the truck away.” But theft under any theory requires a specific intent to deprive the owner permanently of possession of the item taken. State v. Mitchell, 262 Kan. 434, 438, 939 P.2d 879 (1997). Under Williams' version of the events, he did not take the tow truck without Hathaway's permission—that was Mike's conduct—and Williams did not testify to facts showing he aided or abetted this enterprise. But Williams argues, consistent with his testimony, that he “did nothing but drive the tow truck after Mike abandoned the truck,” and the police stopped the truck a short time after the taking. Under these unique circumstances, we conclude the evidence was wholly insufficient to establish Williams' intent to permanently deprive Hathaway of the tow truck. Accordingly, we hold the trial court did not err in failing to instruct the jury on the lesser included offense of theft.
Acceptance of the Jury's Verdict
After the trial court received the jury's verdict in open court, it asked Leiker, “[I]s there a request that the jury be polled?” Leiker said yes, so the trial court asked each of the jurors the following question, preceded by that juror's name: “[D]o you agree that the verdict I read was the verdict of the jury by agreement of all twelve members of the jury?” Each juror answered yes. Leiker did not object to this procedure or contend that the verdict was not unanimous.
For the first time on appeal, Williams now argues this procedure violated his statutory and constitutional rights. According to Williams, “Failing to ask each juror to state that the verdict read was his or her own individual verdict, was tantamount to failing to poll the jury at all.' “ Williams asserts the jurors should have been asked: “ ‘Is this your verdict?’ “
“When appellate arguments implicate issues relating to statutory and constitutional interpretation, this court exercises unlimited review.” State v. Turner, 293 Kan. 1085, 1086, 272 P.3d 19 (2012).
The State cites State v. Holt, 285 Kan. 760, 766, 175 P.3d 239 (2008), where the defendant argued that “his right to an impartial and unanimous jury was violated when, during polling, the court clerk asked each juror, ‘Is this the verdict of the jury?’ instead of ‘Is this your [ i.e., individual] verdict?’ “ In Holt—as in this case-the defendant failed to contemporaneously object. 285 Kan. at 766.
Our Supreme Court rejected Holt's argument. First, it held the right to a unanimous jury and the right to poll the jury were statutory rights, not constitutional rights. 285 Kan. at 766–67. Second, it held the issue was not preserved due to lack of a contemporaneous objection. 285 Kan. at 769–71. Third, it held no exception applied because the defendant had not shown actual harm. 285 Kan. at 770.
Holt controls the present case. While asking, “ ‘Is this your verdict?’ “ is the “best practice,” 285 Kan. at 770–71, it was not required by constitution or statute. This issue was not preserved for appellate review.
Ineffective Assistance of Trial Counsel
On appeal, Williams claims that Leiker was ineffective at trial for failing to retain expert witnesses to testify regarding his physical and mental limitations.
When Leiker called Williams at trial, he first asked his client about “some injuries that [he] sustained a long time ago,” Williams apparently was holding his left hand, and Leiker asked him about it. Williams said it was “totally paralyzed,” and at Leiker's direction he apparently demonstrated the hand's limited range of motion. Leiker then asked Williams about his left leg, including a request to “show your injury to the jury.” Williams complied with the request. Leiker also established that Williams had these disabilities on the day of the incident.
As questioning continued, Leiker had Williams explain the significance of his disabilities. Williams said he stayed in the tow truck when Mike and Hathaway went into the drug house “[b]ecause my leg was kind of bothering me.” He said it has “like a rubber band support,” so while the other two were gone he loosened the band “to relieve some pressure from my leg.” “But my leg was still in my pants, so it looked like my leg was on.”
When stopped by the police, Williams said he did not place his hands out the window as ordered because “[m]y left hand is paralyzed. And I don't want to put one out and they think I got something. So I was hollering back at them, my left hand is paralyzed.”
Williams said that when the police removed him from the truck, “[his] leg was kinda off, but it was in [his] pants, but [his] foot was turned the wrong way.” This description was essentially confirmed by the police officers at trial, who testified that Williams' prosthetic leg came off when they removed him from the truck. The officers also acknowledged Williams' injury to his upper limb, which one officer described as a “permanent or disabling injury” to the left arm. Finally, as already mentioned, Williams testified that he could not walk home with his prosthetic leg, so he drove the truck instead.
In cross-examination, Lidtke asked Williams if his “left arm is paralyzed.” Williams said it was. She then asked about his left leg and he said it was “[a]mputated.” Lidtke suggested that Williams was able to step into the tow truck, but Williams said that “Mike opened the door and kind of helped me in.”
In his motion for new trial, Williams argued that Leiker “did not request BIDS funding for a medical doctor or expert witness to examine [Williams] and testify on his physical limitations.” Williams contended this “deprived [Williams] of the opportunity to present his defense and denied him effective assistance of counsel.” Of note, Williams did not identify any medical doctors or other expert witnesses, however, and he did not specify any expected testimony.
The trial court denied the motion. The court wondered “what a doctor would have added to the inferences we all can make from the fact that a person has a prosthetic leg or a demonstratively withered arm which was also demonstrated for the jury.” The trial court concluded Leiker was not ineffective for failing to obtain “the services of a doctor to say what's well within everybody's common knowledge that one with a prosthesis has some physical limitations, that one with the obviously withered and limited left arm that was exhibited to the jury has obvious limitations.”
On appeal, Williams argues Leiker should have called an expert witness to testify regarding both his physical and mental limitations. The argument for an expert witness on mental limitations is new on appeal. Williams did present evidence of mental limitations at sentencing, but that was in support of a motion for departure, not as evidence relevant to his innocence at trial.
“Ineffective assistance of counsel claims involved mixed questions of law and fact requiring de novo review. [Citation omitted.] It is incumbent upon the movant to prove that (1) counsel's performance was deficient, and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the movant of a fair trial. [Citation omitted.]
‘The first prong of the test for ineffective assistance of counsel requires a defendant to show that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. We must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. [Citation omitted.]’
‘ “Once a defendant has established counsel's deficient performance, the defendant also must establish prejudice by showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. [Citation omitted.]’ [Citation omitted.]” In re Care & Treatment of Ontiberos, 295 Kan. 10, 31–32, 287 P.3d 855 (2012).
“Claims of ineffective assistance of counsel, as a general rule, cannot be raised for the first time on appeal. Only under extraordinary circumstances, i.e., where there are no factual issues and the two-prong ineffective assistance of counsel test can be applied as a matter of law based upon the appellate record, may an appellate court consider an ineffective assistance of counsel claim without a district court determination of the issue.” Wimbley v. State, 292 Kan. 796, Syl. ¶ 4, 275 P.3d 35 (2011).
With regard to the mental limitations claim, Williams does not show extraordinary circumstances. He also does not explain what the proposed expert testimony would have been at trial. Accordingly, this particular issue is not properly before us.
With regard to the physical limitations claim, Williams does not overcome the strong presumption of professional competence. As the trial court noted, Williams' condition was evident to the jury. The only inference needed was the effect of that condition on Williams, and the jurors could understand the effect of a paralyzed or absent limb without expert testimony. See State v. McIntosh, 274 Kan. 939, 956, 58 P.3d 716 (2002) (“Expert conclusions or opinions are inadmissible where the normal experiences and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances.”).
For example, in Commonwealth v. Hall, 48 Mass.App.Ct. 727, 728, 725 N.E.2d 247 (2000), a residence was burglarized and the suspect left through a window 4 1/2 feet above the ground. The defendant produced medical records at trial showing he was in a leg cast at the time, but the jury nevertheless convicted him. 48 Mass.App.Ct. at 729–30. The defendant argued that his trial counsel was ineffective for not calling “a medical expert to testify about the ability of a man with a leg cast to climb through a window.” 48 Mass.App.Ct. at 733. The Massachusetts Appeals Court disagreed, stating how “the defendant's mobility might have been affected by a leg cast ‘was not beyond the ordinary knowledge and experience of the jurors.’ “ 48 Mass.App.Ct. at 733–34. We agree with the Massachusetts court and the district court in the present case. Williams has not shown ineffective assistance of counsel.
Cumulative Error
Finally, Williams contends that he was denied a fair trial through cumulative error. The question presented is “whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” State v. Burns, 295 Kan. 951, Syl. ¶ 3, 287 P.3d 261 (2012). We examine “the errors in the context of the record as a whole,” considering “how the trial court dealt with the errors as they arose, the number of errors committed, the nature of those errors, the relationship of the errors to one another, and the strength of the evidence against the defendant.” 295 Kan. at 961.
While Lidtke's “blatant falsehood” comment in closing argument was improper, Williams has not shown other error, thus not showing cumulative error. See State v. Foster, 290 Kan. 696, 726, 233 P .3d 265 (2010). Moreover, we conclude, based on the record and arguments before us, that Williams had a fair trial. See Burns, 295 Kan. at 960 (discussing harmless error standard).
Affirmed.