Opinion
No. 107,007.
2013-03-15
STATE of Kansas, Appellee, v. Christopher L. CASH, Appellant.
Appeal from Sumner District Court; R. Scott McQuin, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Evan C. Watson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sumner District Court; R. Scott McQuin, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Evan C. Watson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Christopher L. Cash was charged with one count of an off-grid rape in case No. 10CR89 and three counts of aggravated indecent liberties with a child in case No. 10CR231. The cases were consolidated for trial where Cash was convicted of the single count of rape and found not guilty on all three counts of aggravated indecent liberties with a child. Cash now appeals his conviction raising allegations of multiple trial errors.
The Underlying Circumstances
A.H. was 13 years old when she became involved with 19–year–old Cash. A.H. met Cash in early 2010 through a friend's older brother. The two started a relationship which led to consensual sexual intercourse.
B.H. was 15 years old when she became involved with Cash, also in early 2010. B.H. testified she engaged in consensual sexual intercourse with Cash on three occasions.
Police Officer David Dougherty interviewed Cash after advising him of his Miranda rights. Cash indicated he was willing to talk with Dougherty. During the interview, Cash confessed to having sexual intercourse with both A.H. and B.H. Cash provided Dougherty with a written statement regarding his sexual relationship with A.H., which was admitted at trial.
Cash presented no evidence. Based on the testimony of A.H., B.H., and Dougherty, and Cash's written confession, the jury convicted Cash of rape committed against A.H. in 10CR89 and found him not guilty of the three counts of aggravated indecent liberties with a child involving B.H. in 10CR231.
At Cash's sentencing, the trial court found substantial and compelling grounds warranted a departure from the statutorily prescribed sentence under Jessica's Law. Cash received a downward durational departure sentence of 127 months in prison with lifetime postrelease supervision. Cash has filed a timely appeal raising six issues of trial error.
Discussion
The trial court's written responses to jury questions
Cash contends the procedure used by the trial court to respond to the jury's questions during deliberations—in writing rather than calling the jury into the courtroom for responses in the presence of the defendant and counsel—violated K.S.A. 22–3420(3) and multiple constitutional rights. Statutory and constitutional interpretation presents an appellate court with unlimited review. See State v. Davis, 284 Kan. 728, 730–31, 163 P.3d 1224 (2007) (considering defendant's constitutional right to be present during all critical stages of trial); State v. Womelsdorf, 47 Kan.App.2d 307, 320, 274 P.3d 662 (2012), petition for rev. denied May 10, 2012.
During its deliberation, the jury submitted three separate questions to the trial court. In each instance the note was read on the record in the presence of Cash, his attorney, and the State. The first query stated: “ ‘May we see the police report? Was the police report regarding B.H. submitted into evidence? May we re-hear the police officer's testimony?’ “ The judge suggested answering the first part of the question by stating the police report was not admitted into evidence. Regarding the police officer's testimony, the judge suggested responding, “ ‘You may hear a read back of the police officer's testimony. If you want to re-hear the police officer's testimony, just ask the bailiff.’ “ Defense counsel voiced no objection to the proposed response. All the parties and the jury were present in the courtroom for a read back of the officer's testimony.
The second query asked: “ ‘If we can't agree on one charge, does that throw out all charges?’ “ The judge stated the answer should be “ ‘[n]o.’ “ A short discussion ensued with the State suggesting the addition of a referral to Instruction No. 7, stating each crime charged was separate and distinct. Defense counsel indicated he preferred the answer to only refer to Instruction No. 7. The judge concluded, “Well, they're asking a question. It's a matter of law the answer is, ‘No.’ I don't see why I can't answer that.” Defense counsel stated, “Okay,” and added, “You're just going to type it up and send it back to them then?” The judge said that was correct, and defense counsel responded, “Okay. Fine.”
The third and final query asked: “ ‘If we can't come to agreement on one particular charge, what happens?’ “ The judge proposed the following answer, “ ‘Please sign the verdict or verdicts upon which you agree. As to any verdict or verdicts you cannot agree—which you cannot agree, please leave the verdict blank .’ “ Defense counsel had no objection to that answer stating, “No. That makes sense.”
As an initial matter, Cash admits he failed to object to the trial court's procedure in responding to the jury's questions and thus is raising the issue for the first time on appeal. But he asserts the issue should be addressed because the Kansas Supreme Court addressed an identical issue for the first time on appeal in State v. Bell, 266 Kan. 896, 918–20, 975 P.2d 239,cert. denied528 U.S. 905, 120 S.Ct. 247, 145 L.Ed.2d 207 (1999).
Generally, issues not raised before the trial court cannot be raised on appeal. State v, Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009) (constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court); State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Although there are exceptions to this rule, Cash does not claim any exception applies. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010) (stating the appellate courts may consider constitutional issues raised for the first time on appeal if the issue falls within one of three recognized exceptions—[1] The newly asserted claim involves only a question of law arising on provided or admitted facts and is determinative of the case; [2] consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or [3] the trial court is right for the wrong reason).
We observe that Cash participated in the trial court's formulation of the response to each of the jury's questions, and he does not argue the content of the responses was in any way erroneous. Further, there can be no dispute about what was communicated to the jury because the trial court's written responses to the jury are part of the record on appeal. Cash had three chances to object to the trial court's method of delivering its responses to the jury. Cash not only failed to object after the second jury response had been formulated, he acquiesced to the trial court's procedure of typing the answer and sending it back to the jury. See State v. Leaper, 291 Kan. 89, 106–07, 238 P.3d 266 (2010) (finding no reason to address defendant's argument that trial court erred in its procedures for jury's use of transcripts during deliberations by failing to object below); State v. Groschang, 272 Kan. 652, 672–73, 36 P.3d 231 (2001) (issue regarding trial court's response to jury requests under K.S.A. 22–3420[3] may not be raised for first time on appeal when defendant clearly had opportunity to voice objection or provide alternative response, yet failed to do so); State v. Smith, 258 Kan. 321, 327, 904 P.2d 999 (1995) (defendant waives his or her right to challenge trial court's response to jury request by failing to make contemporaneous objection); State v. Bruce, 255 Kan. 388, 397, 874 P.2d 1165 (1994) (applying invited error doctrine to defendant's argument on appeal regarding court's response to jury question when record showed defendant agreed to court's proposed response). Regardless, Bell and several other Supreme Court opinions have addressed the issue without regard to whether the defendant preserved the issue for appeal. Consequently, we will address the issue raised on its merits. See Womelsdorf, 47 Kan.App.2d at 320–21, 274 P.3d 662 (deciding to address identical issue after noting Kansas Supreme Court has previously addressed issue for first time on appeal).
Cash maintains the trial court's manner of responding to the jury's questions was contrary to K.S.A. 22–3420(3) and, citing State v. Coyote, 268 Kan. 726, 1 P.3d 836 (2000), violated his constitutional right to be present at every critical stage of trial. The Kansas Supreme Court recently laid this question to rest in State v. Wells, 296 Kan. 65, Syl. ¶¶ 20–21, 290 P.3d 590 (2012).
The defendant in Wells argued that despite the presence and participation of all the parties in answering the jury's question, the court deprived Wells of her constitutional and statutory rights to be present at all critical stages of trial when it responded to the jury question via a written note. Wells cited both the language of K.S.A. 22–3420(3) and the decision in Coyote to support her claim. The Supreme Court found the plain language of K.S.A. 22–3420(3) did not support Wells' argument because the statute requires the presence of the defendant only if the jury, after making a request, is taken into the courtroom so that it can hear information from the district court on a point of law. The Supreme Court noted its holding in Coyote was based on the fact the defendant was not present during the court's discussion with the attorneys on how to respond in writing to the jury's question. Wells, 296 Kan. at 90–92.
The Supreme Court outlined the protection necessary under the circumstances as follows:
“[T]o ensure that a defendant's constitutional and statutory right to be present at critical stages of his or her trial is protected, a defendant must be present during the court's discussion with the attorneys and ultimate decision on how to respond to a written jury question. But there is no need that the court read the written answer it decided out loud to the jury in open court while the defendant is present. Simply delivering the answer the court decided upon to the jury via written note is sufficient to satisfy the defendant's right to be present. See Coyote, 268 Kan. at 731, 1 P.3d 836 (noting that the district court's handling of a second written jury question complied with Kansas law; the court's conduct was described as follows: ‘The court advised counsel and the defendant of the question, provided all with an opportunity off the record for input, and after the hearing, resolved the question submitted. Then the court, in writing, answered the jury question.’ [Emphasis added.] ); accord [State v.] Burns, 295 Kan. [951, 956–57], 287 P.3d 261 [ (2012) ] (approving of procedure outlined in Coyote for answering written question from jury).” Wells, 296 Kan. at 92.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). Based on the Supreme Court's holding in Wells, we conclude the district court did not violate Cash's statutory or constitutional rights in its manner of responding to the questions presented by the jury after deliberations had begun.
The jury instruction for rape and the verdict form
The trial court's instruction to the jury as to the elements of the off-grid crime of rape under K.S.A.2009 Supp. 21–3502(a)(2) omitted as a necessary element the age of the defendant. Instead, if the jury found Cash guilty of rape, the verdict form required that the jury answer “yes” or “no” as to whether it found the defendant was 18 years of age or older at the time of the offense.
Cash did not object to the trial court's failure to include his age at the time of the alleged offense in its jury instruction on the elements of rape under K.S.A.2009 Supp. 21–3502(a)(2). Although Cash acknowledges the panel reviews this issue under the clearly erroneous standard, he asserts the error was structural. The State contends the instruction on rape, which included the verdict form wherein the jury answered “yes” to the question of whether it found Cash was 18 years of age or older at the time of the offense, was not erroneous. The State further maintains the evidence of Cash's age was undisputed in any event and, if the instruction was error, it constituted harmless error.
Reviewability of jury instructions is controlled by K.S.A. 22–3414(3), which states that “[n]o party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection....” The statute then provides an exception by adding “unless the instruction or the failure to give an instruction is clearly erroneous.” K.S.A. 22–3414(3).
Because Cash presented no objection to the trial court, our first consideration is whether the instruction and verdict form were clearly erroneous. See State v. Williams, 295 Kan. 506, Syl. ¶¶ 3–4, 286 P.3d 195 (2012). If clearly erroneous, we will then proceed to a reversibility inquiry. The definition of “clearly erroneous” provides the test for reversibility—whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. This requires a review of the entire record and, thus, involves a de novo determination. The burden to show clear error is on the defendant. 295 Kan. at 516, 286 P.3d 195.
Because the State sought to convict Cash of the off-grid crime of rape under K.S.A.2009 Supp. 21–3502(a)(2) and (c), his age at the time of the offense was an element of the offense. See, e.g., State v. Chanthaseng, 293 Kan. 140, 151, 261 P.3d 889 (2011); State v. Brown, 291 Kan. 646, 662, 244 P.3d 267 (2011).
The jury instruction on this charge stated:
“The defendant is charged with the crime of rape. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved:
“1. That the defendant had sexual intercourse with A.H.;
“2. That A.H. was under 14 years of age when the act of sexual intercourse occurred; and
“3. That this act occurred on or about February, 2010, in Sumner County, Kansas.”
This instruction, following PIK Crim.3d 57.01, charged the crime of rape under K.S.A.2009 Supp. 21–3502(a)(2), a severity level 1 person felony. When the offender is 18 years of age or older at the time of the offense and the State wishes to enhance the defendant's sentence to an off-grid felony, the Notes on Use for this instruction recommend the trial court include the following question in the verdict form: “ ‘If you find the defendant guilty of rape, do you also unanimously find beyond a reasonable doubt that the defendant was 18 years of age or older at the time the offense was committed?’ “ PIK Crim.3d 57.01, Notes on Use. In the present case, the verdict form allowed the jury to find Cash not guilty or guilty of the crime of rape. The verdict form then asked the jury to find whether Cash was 18 years of age or older at the time of the offense, using the language from the Notes on Use, and gave the jury the option of checking either “Yes” or “No.” The jury checked “Yes.”
Citing State v. Osburn, 211 Kan. 248, 256, 505 P.2d 742 (1973), Cash contends the jury verdict form used in his case constituted a special verdict form not favored under Kansas law. Accordingly, in the absence of this special question, Cash maintains the jury was never asked to pass on the essential element of his age at the time of the offense.
There has been minimal to no discussion of special verdicts in Kansas criminal caselaw since the Osburn decision. Although special verdicts are disfavored in criminal law, the jury in this case was still charged with finding whether Cash was not guilty or guilty of rape. The request for the additional finding of whether he was 18 years old or older at the time of the offense—only after the jury found him guilty of rape—would not appear to fall within the category of a prohibited special verdict. See State v. Robinson, 476 N.W.2d 896, 903 (Minn.App.1991) (disagreeing with Osburn and finding the “better reasoned rule is that a special interrogatory may be used in a criminal case if it relates solely to sentencing and does not tend to lead a jury to a finding of guilt”), affd. as modified480 N.W.2d 644 (Minn.1992); Nepveu, Beyond “Guilty” or “Not Guilty”: Giving Special Verdicts in Criminal Jury Trials, 21 Yale L. & Pol'y Rev. 263 (2003).
Cash's age at the time of the offense was properly submitted to the jury on the verdict form. But even if use of a special verdict was improper, both a verdict form and jury instruction are subject to the harmless rule error. See Unruh v. Purina Mills, LLC, 289 Kan. 1185, 1197–98, 221 P.3d 1130 (2009) (while not technically a jury instruction, the verdict is part of the packet sent with the jury which includes the instructions and assists the jury in reaching its verdict; therefore, it is appropriate to apply the same standard of review applicable to the review of instructions); State v. Hunter, 41 Kan.App.2d 507, 513, 203 P.3d 23 (applying clearly erroneous standard of review to a verdict form), rev. denied 289 Kan. 1282 (2009). Furthermore, the omission of an element in the jury instruction does not amount to structural error. See State v. Kemble, 291 Kan. 109, Syl. ¶ 9, 238 P.3d 251 (2010) (error in failing to instruct on an element of the crime is error but not structural error); State v. Reyna, 290 Kan. 666, 679–81, 234 P.3d 761,cert. denied––– U.S. ––––, 131 S.Ct. 532, 178 L.Ed.2d 391 (2010).
Cash contends the only evidence presented at trial regarding his age at the time of the offense was A.H.'s testimony that both Cash and his friend told her that he was 19 years old. Cash overlooks additional evidence concerning his age. Officer Dougherty testified Cash was 19 years old at the time he interviewed him, which was not long after Cash's relationship with A.H. ended. While Cash did not testify at trial, his written statement was admitted in which he lists his date of birth as November 28, 1990. Consequently, overwhelming and uncontroverted evidence established Cash's age at the time of the offense and any instructional error was harmless. See, e.g., Chanthaseng, 293 Kan. at 151–52, 261 P.3d 889 (if a reviewing court finds beyond a reasonable doubt that the omitted element of the defendant's age in a Jessica's Law case was uncontested and supported by overwhelming evidence, the erroneous instruction is found to be harmless); Kemble, 291 Kan. at 129–30, 238 P.3d 251;Reyna, 290 Kan. at 682, 234 P.3d 761.
We conclude the trial court's instruction and verdict form submitted to the jury were not erroneous. Requesting that the jury provide its finding as to Cash's age after a general verdict of guilty does not constitute a special verdict form. Finally, any perceived error is not clearly erroneous based on the uncontroverted evidence that Cash was 19 at the time he had sexual intercourse with A.H.
The motion for a mistrial
During the prosecutor's direct examination of A.H., he asked whether she had sexual intercourse with Cash on more than one occasion, A.H. answered, “Yes.” Defense counsel objected and asked for a bench conference. Defense counsel argued the question violated an oral agreement with the State not to raise other instances of sexual intercourse and violated K.S.A. 60–455. Defense counsel moved for a mistrial. The trial court ruled it was sustaining the objection because of the parties' agreement and the court would admonish the jury to disregard the question and answer. Thereafter, the trial court instructed the jury to disregard the State's last question and the witness' response and denied the motion for mistrial.
Cash argues the State violated the pretrial agreement regarding introducing evidence that he and A.H. had sexual intercourse on other occasions, which also violated his rights under K.S.A. 60–455. The State maintains Cash cannot show prejudice because the jury was presumed to have followed the trial court's order to disregard the question and answer and, further, the error would amount to harmless error.
In State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012), the Kansas Supreme Court held:
“K.S.A. 22–3423(1)(c) permits a trial court to declare a mistrial because of ‘prejudicial conduct, in or outside the courtroom, which makes it impossible to proceed with the trial without injustice to the defendant or the prosecution.’ Applying this statute, a trial court must engage in a two-step analysis. First, the trial court must decide if “ ‘there is some fundamental failure of the proceeding.’ “ State v. White, 284 Kan. 333, 343, 161 P.3d 208 (2007) (quoting State v. Lewis, 238 Kan. 94, 97, 708 P.2d 196 [1985] ). If so, in the second step of the analysis, the trial court must assess whether it is possible to continue the trial without an ‘injustice.’ This means, as we explained in White, that if there is prejudicial conduct, the trial court must determine if the damaging effect can be removed or mitigated by an admonition or instruction to the jury. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial. White, 284 Kan. at 343, 161 P.3d 208.”
We review the trial court's decision denying a motion for mistrial under an abuse of discretion standard. State v. Harris, 293 Kan. 798, 814, 269 P.3d 820 (2012); Leaper, 291 Kan. at 96–97, 238 P.3d 266. Judicial discretion is abused if
“judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” Ward, 292 Kan. at 550, 256 P.3d 801.
The abuse of discretion standard applies to the two-part question noted above: (1) Did the trial court abuse its discretion when deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion when deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice? Ward, 292 Kan. at 551, 256 P.3d 801.
The analysis of the first question varies with the nature of the misconduct, for example, whether the allegation is based on the actions of the witness or the State. The appellate court's vantage point on the second question—whether the conduct makes it impossible to proceed without injustice—may be broader than that of the trial court because the appellate court can examine the entire record whereas the trial court may have made its assessment before the end of trial. Ward, 292 Kan. at 551, 256 P.3d 801.
Regarding the first part of the inquiry, the trial court essentially found there was not a fundamental failure in the proceeding. The trial court determined the evidence could have been admissible under K.S.A. 60–455 but, in light of the parties' agreement not to introduce evidence of additional instances of sexual intercourse outside the single count of rape, the court implicitly found the State violated the agreement.
After the trial court stated it would sustain the objection and admonish the jury to disregard the question and answer, defense counsel argued the evidence was prejudicial because the State did not comply with the procedures under K.S.A. 60–455 and created an unfair risk of surprise. In response, the trial court pointed out that defense counsel was aware of the additional allegations of sexual intercourse that occurred in another county but, again, because there was an understanding that the parties would not delve into this area, the court sustained the objection.
Cash argues the prejudice that occurred in his case was not cured by the admonition as demonstrated by the fact the jury acquitted him of all counts involving B.H. but found him guilty of the one count involving A.H. According to Cash, the evidence presented in both cases was essentially the same except for A.H.'s positive response to the State's question of whether there had been other acts of sexual intercourse with Cash, so it would appear the jury was swayed by this knowledge. The State asserts that if this evidence was as prejudicial as Cash maintains, the jury likely would have convicted him of all the charges. See State v. Holman, 295 Kan. 116, 129, 284 P.3d 251 (2012) (jury's acquittal of some charges shows jury did not exaggerate importance of the K.S.A. 60–455 evidence).
The evidence against Cash and in support of the State's case-in-chief was substantial. The trial court took immediate action, sustaining Cash's objection and promptly admonished the jury to disregard the question that was asked and the answer that was given. We find unpersuasive under the totality of the evidence, together with the action of the trial court, that the impropriety resulted in an unjust verdict. We conclude that there is no reasonable probability that the error affected the trial's outcome. See Ward, 292 Kan. at 569, 256 P.3d 801 (outlining application of harmless error standards to apply in determining degree of certainty required to conclude an injustice did not occur).
The acceptance of the jury's verdict
Cash next contends the trial judge accepted the jury's verdict without properly inquiring into the accuracy of the verdict as required by K.S.A. 22–3421. The State maintains because Cash exercised his right to have the jury polled and the jury poll showed the verdict to be unanimous, there was no reversible error.
Cash is asking the panel to interpret K.S.A. 22–3421. Accordingly, the issue is one of law and the panel exercises unlimited review. See State v. Hernandez, 294 Kan. 200, 207, 273 P.3d 774 (2012). Furthermore, appellate courts exercise de novo review over issues of jury unanimity. Womelsdorf, 47 Kan.App.2d at 326, 274 P.3d 662;State v. Dayhuff, 37 Kan.App.2d 779, 784, 158 P.3d 330 (2007).
When the jury reached a verdict, the judge asked the clerk to read the verdict in open court. After the clerk read the verdict on all counts, the judge asked the presiding juror, “[I]s that the jury's verdict?” The presiding juror answer, “That's correct.” The judge then asked the parties if they wished to have the jury polled. Defense counsel asked the judge to poll the jury. Each juror then affirmed that this was his or her verdict.
K.S.A. 22–3421 sets out the procedure for obtaining a jury's verdict by stating:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.”
Cash contends the trial judge failed to follow the procedure under K.S.A. 22–3421 by making an inquiry of the jury as to whether the verdict announced was its verdict. Cash admits he did not object to this procedure but suggests, without elaboration, that the panel should address the issue because it involves facts not in dispute; the issue is a question of law pertaining to the fundamental right to a unanimous jury verdict; and addressing the issue will be determinative of the case. We do not agree with Cash's assessment that the issue should be extensively addressed. The trial judge followed K.S.A. 22–3421 by asking the presiding juror whether the verdict was the jury's verdict. Cash alleges, without explanation, that the “plain language of K.S.A. 22–3421 requires the court to conduct a proper inquiry of the full jury, a duty that was not carried out in this case.” Cash may be suggesting the judge's inquiry made to the presiding juror instead of to the collective jury was inadequate. In any event, at Cash's request, the jury was polled with each juror answering “Yes” to the clerk's question, “[I]s this your verdict along with 11 other jurors?” Even if we were to conclude the trial judge should have gone further to confirm the verdict as unanimous, the polling confirmed that it was a unanimous verdict. Thus, we conclude while the better practice may be for a trial judge to address the jury collectively rather than only the presiding jury, Cash's claim of reversible error fails.
The motion to suppress
Cash argues the trial court erred in denying his motion to suppress on basically two grounds. First, Cash argues his mental state prevented him from making a knowing and intelligent waiver. Cash points out Officer Dougherty did not question him to determine his mental state at the time of the interview. According to Cash, he testified at the suppression hearing that he had been using drugs and alcohol for months before the interview and, not long before the interview, he used alcohol, prescription pills, and marijuana. Additionally, Cash testified he had, at most, 2 hours of sleep before Officer Dougherty questioned him. Cash farther noted he was diagnosed with bipolar disorder and obsessive-compulsive disorder. Second, Cash asserts Officer Dougherty's method of questioning was calculated to take advantage of his lack of full understanding, which the trial court acknowledged as “ ‘artful.’ “
When reviewing the suppression of a defendant's statements, the appellate courts use a bifurcated standard:
“In reviewing a trial court's ruling on a suppression issue, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. [Citations omitted.]” State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010).
At the suppression hearing, Officer Dougherty testified that he conducted an interview lasting approximately 25–30 minutes after Cash indicated he understood his Miranda rights and would speak with the him. Officer Dougherty admitted he did not ask Cash whether he was under the influence of drugs or alcohol or whether he was tired; however, Officer Dougherty testified Cash did not appear sleepy, nervous, or jittery. Cash's speech was not slurred, and his eyes looked normal. Officer Dougherty further testified that Cash was relaxed, engaged, and pleasant to talk to. Furthermore, Cash's answers were logically connected to the questions, and Cash was “sharp,” which Officer Dougherty explained meant Cash would correct him if he misstated something. Finally, Officer Dougherty testified he informed Cash of the nature of the investigation—sex with a minor. On cross-examination, Cash admitted he was familiar with and understood his Miranda rights because he had his rights read to him a few times in the past.
After viewing the audio-video recording made during the interview and hearing the arguments of counsel, the trial court agreed with Officer Dougherty's assessment of Cash's mental state—there was no indication Cash was under the influence or that he did not understand what was going on. The judge further stated:
“True, the officer was artful in his interrogation by suggesting he didn't believe there was a forcible rape and getting the defendant to talk. Nevertheless, defendant seemed to be talking of his own free will. I don't see any basis for suppression of the confession, so the motion is denied.”
At trial, Cash timely objected to Officer Dougherty's testimony regarding his interview.
“ ‘The fact that an accused had been drinking and using drugs does not per se establish involuntariness.’ “ State v. Norris, 244 Kan. 326, 334–35, 768 P.2d 296 (1989) (quoting State v. Baker, 4 Kan.App.2d 340, 343, 606 P.2d 120 [1980] ). The surrounding circumstances should be examined to determine if the statements were a product of a defendant's free and independent will. See State v. Swanigan, 279 Kan. 18, 23–40, 106 P.3d 39 (2005). Some factors to be considered in determining whether the defendant's mental state prevented him or her from making a voluntary statement have included whether there were markers or manifestations of drug and alcohol intoxication, the trial court's observation of a video or audio recording of the interview, and the defendant's familiarity with Miranda rights. See State v. Gilliland, 294 Kan. 519, 529–30, 276 P.3d 165 (2012).
In this case, Officer Dougherty testified Cash appeared perfectly normal, and Cash gave clear logical answers to his questions. Cash admitted he understood his Miranda rights and that he had his rights read to him on prior occasions. Further, the trial court was able to review the recording of the interview and agreed with Officer Dougherty's assessment of Cash's mental state. Substantial competent evidence supported the trial court's finding. We conclude the trial court did not err in denying Cash's motion to suppress his post-Miranda statements.
The preliminary instruction to the jury pool
Cash argues that it was clear error for the judge to give a preliminary instruction to the jury pool. According to Cash, the judge's statements appeared to be patterned after PIK Civ.3d 101.09, a civil pattern instruction that he claims has not been approved for use in criminal cases.
The judge made opening comments to the jury pool before voir dire, which included comments on the duty of the judge and the duty of the jury. As part of these comments, and the portion relevant to Cash's complaints, the judge stated:
“The attitude and conduct of jurors at the outset of their deliberations are matters of considerable importance. It is rarely helpful for a juror, upon entering the jury room, to make an emphatic expression of his or her opinion on the case or to announce a determination to stand for a certain verdict. The result of conduct of this nature might be that a juror because of personal pride would hesitate to recede from an announced position when shown that it is fallacious.
“It is natural that differences of opinion will arise. When they do, each juror should not only express his or her opinions but the reasons upon which he or she bases them.
“Although a juror should not hesitate to change his vote when his reason and judgment are changed, each juror should vote according to his honest judgment, applying the law from the instructions to the facts as proved. If every juror is fair and reasonable, a jury can almost always agree.”
As a preliminary matter, it should be noted that the appellate courts generally analyze this issue under a judicial misconduct standard instead of under jury instruction law. In State v. Aikins, 261 Kan. 346, 368–70, 932 P.2d 408 (1997), disapproved on other grounds in State v. Warrior, 294 Kan. 484, 277 P.3d 1111 (2012), the judge disclosed to the parties that during jury orientation, the judge had made comments regarding the reasonable doubt burden of proof in criminal cases, stating nothing could be proved 100%. Defense counsel maintained this was improper and moved the trial court to discharge the jury panel. The judge denied the motion. On appeal, the Supreme Court stated that jury orientation comments are not the same thing as jury instructions. The Supreme Court found the issue raised a question of judicial misconduct with the following applicable standard:
“ ‘Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.’ [Citations omitted .]” Aikins, 261 Kan. at 369, 932 P.2d 408.
See also State v. Gibbons, 256 Kan. 951, 964–65, 889 P.2d 772 (1995) (rules regarding improper jury instructions do not apply to commentary meant to orient the jury).
In State v. Cook, 259 Kan. 370, 386, 913 P.2d 97 (1996), the Supreme Court found a trial court's preliminary comments to the jury regarding the burden of proof in a criminal case did not qualify as a jury instruction because the comments were not made under the guise of an instruction. But Cook then analyzed the trial court's explanation of the jury's right to readbacks made before opening statements as a jury instruction issue. The Supreme Court explained that although the trial court's comments were made before opening statements, the comments were specifically referred to as a “ ‘preliminary instruction’ “ and, thus, were analyzed under jury instruction caselaw. 259 Kan. at 392, 913 P.2d 97.
In this case, the trial judge prefaced his comments by stating he would outline procedures followed in the district courts to help the jurors understand their duties. But regardless of what standard applies to the issue, Cash's arguments have no merit. Cash makes two allegations: (1) The “preliminary instruction” given in his case and based on PIK Civ.3d 101.09 has never been approved for use in criminal cases; and (2) informing the jurors as to how and when they should express opinions was contrary to the longstanding principal of law that states one cannot delve into the mental process by which a jury reaches a verdict.
For all practical purposes, PIK Civ.3d 101.09, instructing the jury how to conduct its deliberations, has been approved for use in criminal trials. See, e.g., State v. Cofield, 288 Kan. 367, 376, 203 P.3d 1261 (2009); State v. Cummings, 242 Kan. 84, 90–91, 744 P.2d 858 (1987); State v. Hall, 220 Kan. 712, 718, 556 P.2d 413 (1976) (concluding similar instruction was neither coercive nor confusing and appeared to be “fair statement concerning the necessary procedure to be followed by the jury and the proper attitude which the jurors should maintain in the jury room”). Further, although generally a jury cannot be questioned about its mental processes, the judge's comments here merely emphasized that each juror should deliberate toward a goal of reaching an agreement on the verdict without compromising his or her own judgment. The judge's preliminary comments or instructions did not delve into the jury's mental processes. See K.S.A. 60–441 (prohibiting testimony concerning jury's mental processes); Saucedo v. Winger, 252 Kan. 718, 728–29, 850 P.2d 908 (1993) (discussing questioning a jury regarding its views or conclusions in order to impeachment jury's verdict). Finally, the judge's preliminary comments to the jury pool did not misstate the law and did not prejudice Cash's substantial rights.
Conclusion
We conclude none of Cash's claims of error have merit or would warrant a new trial or resentencing. The evidence was overwhelming that Cash committed the crime of rape as proscribed in K.S.A.2009 Supp. 21–3502(a)(2) and received a fair trial. There has been no showing by Cash of a factual or legal basis to support reversal of the trial court's judgment.
Affirmed.