Opinion
No. 105,389.
2012-06-29
The CITY OF SHAWNEE, Appellee, v. Todd VALLE, Appellant.
Appeal from Johnson District Court; John P. Bennett, Judge. Catherine A. Zigtema, of Maughan & Maughan LC, of Lenexa, for appellant. Karen L. Torline, of Shawnee, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Catherine A. Zigtema, of Maughan & Maughan LC, of Lenexa, for appellant. Karen L. Torline, of Shawnee, for appellee.
Before BUSER, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Todd Valle appeals his conviction for misdemeanor battery. First, Valle claims the district court erred in making comments regarding his constitutional rights to remain silent and to testify at trial. Second, Valle asserts the district court's comments interfered with his constitutional rights to counsel and to present a defense. Finally, Valle complains that the district court failed to instruct the jury on self-defense. We affirm the conviction.
Factual and Procedural Background
The facts at trial showed that on July 20, 2009, Milford Weber, III, parked his vehicle in front of his house in Shawnee. Weber noticed another vehicle pull into his driveway, reverse, and squeal its tires as it accelerated towards him. Weber thought someone was “messing” with him, so he approached the driver's window as the vehicle came to a stop.
When the driver lowered the window, Weber realized it was a stranger. At trial, Weber identified the stranger as Valle. According to Weber, Valle began “cussing, cussing, cussing” about running him “off the road” and “trying to kill” him. Weber then realized that Valle had followed him home, and he told him, “ ‘You need to get out of here.’ “
Weber testified that Valle instead “slam[med] his door open at me which knock [ed] my items ... out of my hand.” Weber shoved the door back and stepped away. As related by Weber, Valle got out and swung at him, striking the top of his head. Weber then placed Valle in a “bear hug” so “he couldn't swing again.”
The two men fell into the yard, but Weber maintained his grip. Valle, however, was able to wrap his legs around Weber's right leg and jerk it. Weber said he “heard a loud pop” and his “leg bent like it shouldn't.” Weber said when Valle “kept just jerking on my knee,” he thought, “this guy is tearing my knee up.” Consequently, Weber swung three times at Valle's head, making contact on the third try. Valle went limp for a moment, and Weber adjusted his hold. At about this time, Weber's wife Amy came out and called the police.
Amy testified that when she came out of the house her husband and Valle were on the ground “struggling with each other.” Amy did not witness the start of the fight, however, or the injury to her husband's knee. Amy recalled, “They were both kind of trying to swing at each other.”
At trial, Valle testified on his own behalf, and his account was different than Weber's testimony. Valle admitted to following Weber home after being cut off in traffic, and he recalled yelling at Weber about his driving. Valle claimed, however, that during the verbal exchange he heard “a loud thump on the side of my car” and, assuming Weber had kicked it, he got out to see if the car was damaged. As related by Valle, Weber slammed the door into his leg and “was right on top of me” with a chokehold. According to Valle, “[t]here was basically no fight” because Weber “completely had control of the situation from the git-go.” Valle specifically denied ever striking Weber or injuring his knee.
Valle was convicted of battery in the Municipal Court of Shawnee (City). He appealed to the district court for a trial de novo. Prior to trial in the district court, Valle filed proposed jury instructions. These included a self-defense instruction which the prosecutor brought to the district court's attention on the morning of trial.
The prosecutor objected to the instruction because Valle was “the initial aggressor in this case .... [t]hat instruction would not be appropriate.” When the district court questioned defense counsel, Michelle Durrett, about the “evidence of self-defense,” specifically, whether “your client's got to testify,” she answered, “He's going to testify.” After more comments, the district judge addressed Valle directly:
“THE COURT:.... Sir, you understand—The self-defense that you're going to claim is going to be based upon your evidence, not the City's evidence. So the—You're going to have to testify in the case.
“Do you understand that?
“MR. VALLE: Yeah.
“THE COURT: If you're going to testify, then your attorney's going to be allowed to make—If you have not decided or
“MS. DURRETT: It's decided.
“THE COURT:—don't make the opening statement until after the close of the City's evidence. You can wait to make your opening statement when you've decided.
“But if you decide that he's going to testify, I'll allow you to testify [ sic ] to what your evidence is going to be.
“MS. DURRETT: Okay.
“THE COURT: Whether I give the instruction or not will depend on what I hear after the evidence comes in.
“But both of you I guess can argue what you think the instruction—what the law is going to be, but these are the laws.
“I'm not sure what instruction I'll give-whether I'll give this self-defense.
“I certainly wouldn't give it unless you had evidence that it was self-defense which I assume could only come from [Valle].
“MS. DURRETT: Mr. Valle, it's your full intent to testify; correct?
“MR. VALLE: Yes.
“MS. DURRETT: We've discussed this at length.
“THE COURT: The problem it would cause is if your attorney goes ahead and opens—makes an opening statement and then you don't testify, the jury's heard the evidence although it's not the evidence and I tell them it's not evidence. They've heard all this from your lawyer, but they don't get to hear any of it from the witness. Juries are pretty good about weeding that out once you tell them not to pay any attention to what she said.
“It would really be suicidal to make statements in an opening and not have any evidence of it. It would be pretty easy for the City to throw rocks at that position.
“But if the evidence is going to be of self-defense and—I'll have to decide whether it fits these—these instructions.
“I think I can't rule.
“I'll—I thank you for bringing it to me, because I will have my eyes and ears open.
“You'll be allowed to bring it up in opening.
“MS. DURRETT: Okay. I'm not planning on leaning heavily on the opening to begin with in [ sic ] the event that Mr. Valle changes his mind.
“However, I do believe that—My understanding is that he completely intends to testify. With that anticipation—That's always been his statement. We expect that will happen.”
Durrett did not object to the district court's remarks.
During voir dire and opening statement, Durrett did not mention self-defense. She did tell the jury, however, that Valle would testify. In particular, Durrett indicated Valle would tell the jury how Weber attacked him. Durrett also told the jury she was “confident that after hearing all the facts from ... Mr. Valle that you'll come back with a verdict of not guilty.”
When the City rested its case, the district court asked Durrett if she wished to “present any witnesses.” Durrett called Valle to the stand. The district court made no statements to Valle regarding his decision to testify.
During the jury instructions conference, the district court did not include a self-defense instruction in the packet of proposed instructions. The district court asked counsel: “Any other instructions the parties want me to give?” Durrett responded: “None by the Defense, Your Honor.” The district court instructed the jury to find whether Valle had either “intentionally and/or recklessly caused bodily harm to another person” or “intentionally caused physical contact with another person in a rude, insulting or angry manner.” No self-defense instruction was requested by the defense or provided to the jury. Valle also did not object to the district court's failure to provide a self-defense instruction.
In closing argument, Durrett did not argue self-defense but reiterated Valle's account of Weber's aggression. The jury found Valle guilty and he appeals.
Violation of the Defendant's Rights to Testify and Remain Silent
For the first time on appeal, Valle contends “the colloquy between [him] and the [trial] court impermissibly coerced [him] into waiving his right to remain silent.” Valle suggests that “[b]y failing to conduct a colloquy informing [him] of his right to remain silent in the face of the [trial] court's pretrial comments, the record is silent as to whether the waiver of his right to remain silent was knowing and voluntary.”
Valle contends that absent such a waiver, his conviction must be vacated. Valle cites the Fifth Amendment to the United States Constitution, § 10 of the Kansas Constitution Bill of Rights, and K.S.A. 60–423(a), all of which provide a criminal defendant with an “absolute right not to be called as a witness.” State v. Nott, 234 Kan. 34, 36, 669 P.2d 660 (1983). This right is part of a criminal defendant's general right to remain silent, which is grounded in the Fifth Amendment's privilege against self-incrimination. See State v. Gant, 288 Kan. 76, Syl. ¶ 2, 201 P.3d 673 (2009); State v. Longobardi, 243 Kan. 404, 407, 756 P.2d 1098 (1988); State v. Hamilton, 222 Kan. 341, 344, 564 P.2d 536 (1977); City of Liberal v. Witherspoon, 28 Kan.App.2d 649, 652, 20 P.3d 727 (2001).
A defendant who testifies, as did Valle, “waives the right not to be called as a witness.” Nott, 234 Kan. at 36. The question on appeal is, therefore, whether Valle's waiver was knowing, intelligent, and voluntary under all the circumstances. See Escobedo v. Illinois, 378 U.S. 478, 490 n.14, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); State v. Hickles, 261 Kan. 74, Syl. ¶ 3, 929 P.2d 141 (1996); State v. Hale, 206 Kan. 521, Syl. ¶ 3, 479 P.2d 902 (1971); Witherspoon, 28 Kan.App.2d at 652.
We review “the factual underpinnings of the trial court's decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard.” State v. Mattox, 280 Kan. 473, Syl. ¶ 3, 124 P.3d 6 (2005) (waiver of Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694,reh. denied385 U.S. 890 (1966),] rights); see also State v. Demon, 335 Wis.2d 681, 699, 799 N.W.2d 831 (2011) (applying deferential standard to underlying facts and unlimited standard to legal questions when deciding whether defendant “knowingly, voluntarily, and intelligently waived his right not to testify”).
We begin the analysis with some important procedural considerations. As a general rule, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). Of course, there are exceptions to the general rule, see State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010), but Valle does not assert or brief any of them. Not only did Valle fail to raise this issue with the district court, he has waived or abandoned any exception which might have allowed appellate review. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
There is another basis to decline review. The burden is on the appellant to designate a record to support a claim of error at the trial court. Without such a record, the claim of error fails. State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). Critical to his argument, Valle alleges, “In this case, the circumstances of the case may or may not have caused the defendant to feel that he had to testify in his own defense.” (Emphasis added.) We may not speculate, however, regarding these matters. Because this issue was not presented to the district court, the court made no findings regarding the waiver and whether Valle or Durrett believed the district court's remarks were coercive in some manner.
On the other hand, it appears from the record that prior to the district court's comments, Valle and his attorney had discussed this matter fully before deciding that Valle was going to waive his right to remain silent and testify in his own defense. In fact, our independent review of the record reveals no suggestion that Valle's pretrial decision to testify was anything other than voluntarily and knowingly made with the advice of Durrett. Regardless, we are unable to review “the factual underpinnings of the trial court's decision” and “the ultimate legal conclusion” when the district court made no factual findings or legal conclusions regarding the matter because the issue was not raised below. Mattox, 280 Kan. 473, Syl. ¶ 3;Demon, 335 Wis.2d at 699.
The third procedural impediment to appellate review is that Valle has not briefed or argued whether the district court's comments were reversible or harmless error. Assuming Valle was coerced to testify at trial, his claim is subject to a harmless error analysis. See United States v. Leggett, 162 F.3d 237, 248 (3d Cir.1998); United States v. Goodwin, 770 F.2d 631, 637–38 (7th Cir.1985); People v. Watkins, 247 Mich.App. 14, 28, 634 N.W.2d 370 (2001); People v. Cuccia, 97 Cal.App. 4th 785, 791–92, 118 Cal.Rptr.2d 668 (2002).
The harmless error standard for constitutional errors is found in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987 (1967), which requires proof 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.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012); see also Goodwin, 770 F.2d at 637 (applying Chapman to a claim the trial court coerced a criminal defendant to testify). On appeal, Valle does not conduct an analysis of the Chapman standard or brief an argument of prejudice. An issue not briefed is deemed waived or abandoned. McCaslin, 291 Kan. at 709.
Finally, our Supreme Court has cautioned district courts that “[T]here is a danger that by asking a defendant if he or she is aware of his [or her] right to testify, a trial court may inadvertently influence a defendant to waive the equally fundamental right against self-incrimination.” Taylor v. State, 252 Kan. 98, Syl. ¶ 5, 843 P.2d 682 (1992). In the present case, however, Valle did not incriminate himself for the simple reason that he did not admit to battery at trial. In Wallace v. State, 553 N.E.2d 456, 461 (Ind.1990), a defendant argued on appeal that his “right against self-incrimination” was violated in a post-conviction proceeding because the trial court “encouraged him to testify” about a certain matter. The Supreme Court of Indiana noted the defendant had “made no incriminating statement” during his testimony. 553 N.E.2d at 461. Here as well, we could conclude beyond a reasonable doubt from the existing record that, assuming there was a coercive effect from the trial court's comments, the outcome of the trial was not affected.
For all of these reasons, we decline appellate review of this issue.
Violation of the Defendant's Rights to Counsel and to Present a Defense
On a related issue and for the first time on appeal, Valle argues that
“[b]y interjecting its opinion that presentation of the defense would require testimony [by Valle], and informing [him] that he would be required to testify, the [district] court impermissibly interfered with [his] right to present a defense, the defense strategy as determined by counsel for the defense, and [his] personal right to testify.”
Valle continues: “The second guessing or commentary on the defense strategy from the bench inappropriately undermined the trust and confidence in the attorney client relationship to which [he] is entitled.” Valle suggests this violated his “right to counsel and consequently right to a fair trial.”
“When a criminal defendant claims that a district judge has interfered with his or her constitutional right to present a defense, we review the issue de novo. [Citation omitted.]” State v. Carter, 284 Kan. 312, 318–19, 160 P.3d 457 (2007). That being said, “the right to present a defense is subject to statutory rules and caselaw interpretation of the rules of evidence and procedure.” State v. Wells, 289 Kan. 1219, Syl. ¶ 6, 221 P.3d 561 (2009). Thus, the standard of review depends upon the statutory rules and caselaw in question.
Once again, we are confronted with an issue that was not raised at any time before the district court. During the trial, Valle never objected to any conduct by the district court that arguably impaired his constitutional rights to counsel or to present a defense. On appeal, Valle also fails to assert or brief any exceptions to the general rule precluding appellate review. As a result, this issue is not properly before our court. See McCaslin, 291 Kan. at 709.
Valle points to no particular district court ruling but asserts generally that the district court's statements interfered with his defense and the attorney-client relationship. We are unable to analyze this assertion, however, because it is vague and made without evidentiary support, findings of fact, and conclusions of law by the district court. The appellant must designate a record to support a claim of error by the trial court. Without such a record, the claim of error fails. Paul, 285 Kan. at 670.
Moreover, our review of the district court's comments yields the conclusion that the district court inquired into Valle's defense in order to rule on the State's objection to the proposed self-defense instruction. We find no evidence the district court encouraged or criticized the proposed defense or Valle's pretrial decision to testify on his own behalf. Moreover, the district court did not criticize Valle or Durrett, or make any statements that could be construed to undermine the attorney-client relationship. It is not surprising, therefore, that Durrett did not contemporaneously object to any of the district court comments.
On the contrary, the district court facilitated Valle's proposed self-defense theory by overruling the State's objection to the proposed instruction, and allowing Durrett to raise the defense in her opening statement. Under the circumstances, we are unable to find any record evidence the district court undermined the attorney-client relationship or had any adverse effect on Valle's defense.
The record only shows that Durrett filed a proposed self-defense instruction before trial, she had discussed the decision to testify with Valle prior to the start of trial, the decision was made that Valle would testify, self-defense was discussed with the district court immediately before the start of trial, Durrett's opening statement purposely did not reference self-defense but informed the jury that Valle would testify that Weber was the aggressor, and Valle testified that Weber had battered him while Valle did not respond in kind.
The record does not show when or why the self-defense strategy was abandoned by Durrett and Valle. But the record is sufficient to show the district court allowed Durrett the opportunity to present an opening statement and evidence of the self-defense theory. We are unable to review the constitutional issues Valle raises based on conclusory assertions and speculation. Once again, this issue was not preserved for appeal. See Gomez, 290 Kan. at 862.
Failure to Give a Self–Defense Instruction
For his final issue, Valle argues the district court erred by not instructing the jury on self-defense. At the outset, Valle seeks de novo review because he filed a proposed self-defense instruction before trial. As the City notes, however, Valle neither requested the instruction nor objected to its omission at the instructions conference. Considering these facts together with Valle's failure to testify in support of self-defense, the district court could not have known the defense wanted the instruction. We therefore review for clear error, which occurs “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.]” State v. Martinez, 288 Kan. 443, 451–52, 204 P.3d 601 (2009).
Self-defense assumes, inter alia, that a defendant made a “use of force” necessary to defend against another's “imminent use of unlawful force.” K.S.A.2010 Supp. 21–3211(a). In this regard, the defendant's subjective reasonable belief is integral to the defense. K.S.A.2010 Supp. 21–3211(a). The district court had a duty to instruct the jury on self-defense if there was evidence tending to establish it. See State v. Hill, 242 Kan. 68, 78, 744 P.2d 1228 (1987). In the present case, however, the evidence was inapposite.
Valle never claimed that he struck Weber in self-defense. On the contrary, at several times during his testimony Valle denied exerting force against Weber. In response to the question, “Were you hitting [Weber]?” Valle replied, “No, I did not.... I wasn't doing nothing to him. I wanted him to let me up.” Later in testimony Valle stated, “I never struck Mr. Weber from the whole time the incident took place. I never hit Mr. Weber, period.” Valle also specifically denied squeezing his legs around Weber's leg, causing the knee to “pop.” Moreover, on appeal, Valle admits that at trial he denied the use of force against Weber. Finally, not only did Valle deny the use of force, he never intimated that he had a reasonable belief that force was necessary to defend himself against Weber.
The jury heard Weber's account, which described Valle as the aggressor, and Valle's account, which described Weber as the aggressor. Valle admitted to following Weber home and verbally confronting him. The jury obviously accepted Weber's account. As the initial aggressor, Valle could not have prevailed on self-defense. See K.S.A.2010 Supp. 21–3214; State v. Cook, 286 Kan. 1098, 1105–06, 191 P.3d 294 (2008). We find no error in the district court's decision not to provide the jury with a self-defense instruction. We also conclude there is not a real possibility the jury would have reached a different verdict had a self-defense instruction been provided to the jury. See Martinez, 288 Kan. at 451–52
Affirmed.