Opinion
110,827.
06-05-2015
STATE of Kansas, Appellee, v. Deron McCOY, Jr., Appellant.
Rachel L. Pickering, of Third Judicial District Public Defender Office, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Rachel L. Pickering, of Third Judicial District Public Defender Office, for appellant.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.
Opinion
PER CURIAM.
Following trial by jury, Deron McCoy, Jr., was convicted of one count of kidnapping under K.S.A. 21–3420(a), a severity level 3 person felony, five counts of aggravated assault on a law enforcement under K.S.A. 21–3411(a)(1), each severity level 6 person felonies, one count of aggravated assault under K.S.A. 21–3410(a), a severity level 7 person felony, one count of aggravated endangerment of a child under K.S.A.2010 Supp. 21–3608a(a)(1), a severity level 9 person felony, one count of criminal possession of a firearm under K.S.A.2010 Supp. 21–4204(a)(3), a severity level 8 nonperson felony, one count of possession of cocaine under K.S.A.2010 Supp. 21–36a06(a), a severity level 4 nonperson felony, one count of solicitation to commit perjury under K.S.A.2010 Supp. 21–3303(a) and K.S.A. 21–3805(a)(l), a severity level 10 nonperson felony, and one count of possession of hydrocodone-lortab under K.S.A.2010 Supp. 21–36a06(a), a severity level 4 nonperson felony. In total, the trial judge sentenced McCoy to 335 months' imprisonment. McCoy received 233 months' imprisonment for his kidnapping conviction, 19 months' imprisonment for each aggravated assault of a law enforcement officer conviction, and 7 months' imprisonment for his aggravated endangering a child conviction. The trial judge ran McCoy's sentences for his remaining convictions concurrent to his kidnapping, aggravated assault on a law enforcement officer, and aggravated endangering of a child convictions.
McCoy appeals his convictions and sentences, raising nine issues on appeal. For reasons discussed below, McCoy's arguments regarding the various alleged trial errors fail. McCoy correctly asserts, however, that the trial court erred at his joint hearing on his motion for new trial and sentencing when it denied his clear and unequivocal request to represent himself without making any further inquiries. Consequently, we affirm in part, reverse in part, and remand for a new hearing on McCoy's motion for a new trial and resentencing.
On March 22, 2011, McCoy phoned Leanna Daniels, the mother of his 6–month–old daughter A.M. During McCoy and Daniels' conversation, Daniels heard A.M. crying. Daniels asked McCoy why A.M. was crying, and McCoy told her to come to the hotel he was staying at to find out. Daniels and her friend Gwendolyn Roby then went to the hotel to pick up A.M. According to Daniels, McCoy asked her to come into his hotel room but when she refused he grabbed her by the hair. Daniels asserts that McCoy then told his sister, Kaneshia Spencer, who was also in the room, to “come beat this bitch's ass.” It is unclear how, but Daniels was able to get away from McCoy. According to Daniels, McCoy flashed his gun at her as she was leaving the hotel room.
While this was happening, Daniels' friend Roby was watching. When Roby realized McCoy was not going to give A.M. to Daniels, she called the police. Roby and Daniels told the police that McCoy was at a hotel with A.M. and Spencer, that McCoy would not give A.M. to Daniels, and that McCoy had a gun.
Police were sent to the hotel at 4:38 p.m. The police tried to get McCoy to come out of his hotel room, but he refused. Several times McCoy yelled at the police to “get back, get the fuck back.” The police eventually asked for help from the emergency response team (ERT). The ERT attempted to contact McCoy via a megaphone and by calling his cell phone every 60 seconds. When there was no sound or movement coming from the hotel room after 45 minutes, the police decided to forcibly enter the hotel room. The police entered McCoy's hotel room without a warrant at 9:05 p.m.
The ERT entered the hotel room in a “stack” formation, with Officer Darren Pickering entering first and Officers Corey Garber, Brice Burlie, Jeremy Hedges, and Brian Carey following behind Pickering. The ERT officers had their guns drawn as they entered the hotel room. As the ERT officers entered, they saw McCoy sitting on the bed holding A.M. in one arm while using her to cover his face and holding Spencer with the other arm. McCoy also had a gun in the hand of the arm wrapped around Spencer. According to the ERT officers, McCoy was alternating pointing his gun at Spencer and pointing his gun at the police. At some point, McCoy lost control of his gun. Officer Hedges then grabbed McCoy's gun and removed it from the hotel room. Then, Officer Kramer Siemens pulled Spencer out of the hotel room and Officer Matt Trato grabbed A.M. and removed her from the hotel room.
The police struggled to arrest McCoy. During this struggle, McCoy was put into a lateral vascular neck restraint (LVNR) twice. The police found a glass pipe containing methamphetamine and a scale inside the hotel room. The police also found a baggie containing cocaine and hydrocodone in McCoy's pocket.
Following his arrest, the State charged McCoy with the following: six counts of aggravated assault on a law enforcement officer under K.S.A. 21–3411(a)(1), each severity level 6 person felonies; three counts of aggravated assault under K.S.A. 21–3410(a), each severity level 7 person felonies; one count of aggravated endangerment of a child under K.S.A.2010 Supp. 21–3608a(a)(1), a severity level 9 person felony; one count of criminal possession of a firearm under K .S.A.2010 Supp. 21–4204(a)(3), a severity level 8 nonperson felony; one count of possession of cocaine with intent to sell under K.S.A.2010 Supp. 21–36a05(a)(l), a severity level 4 nonperson felony; one count of possession of drug paraphernalia with intent to use to package a controlled substance for sale under K.S.A.2010 Supp. 21–36a09, a severity level 4 nonperson felony; one count of possession of drug paraphernalia with intent to use to introduce a controlled substance into the human body under K.S.A.2010 Supp. 21–36a09(b)(2), a class A nonperson misdemeanor; one count of possession of hydrocodone under K.S.A.2010 Supp. 21–36a06(a), a severity level 4 nonperson felony; and one count of possession of methamphetamine under K.S.A.2010 Supp. 21–36a06(a), a severity level 4 nonperson felony. The State additionally charged McCoy with two counts of kidnapping under K.S.A. 21–3420(a), each severity level 3 person felonies, for the kidnapping of Spencer and the kidnapping of A.M.
Before trial, McCoy phoned Daniels from the jail and asked her to lie about what had happened when she went to the hotel room. The State then amended the complaint and additionally charged McCoy with one count of solicitation to commit perjury under K.S.A.2010 Supp. 21–3303(a) and K.S.A. 21 –3805(a)(1), a severity level 10 nonperson felony. Also before trial, McCoy's attorney, Alice Osburn, filed several motions, including a motion to dismiss based on the police officers' use of excessive force and a motion to suppress any evidence obtained by the warrantless entry of the police. The trial court denied the motion to dismiss. The trial judge's ruling on the motion to suppress is not in the record, although it seems that the trial judge and the parties proceeded as if the trial judge had denied the motion.
During voir dire, the prosecutor, Thomas Stanton, used a preemptory challenge on the only African–American venireperson. Osburn objected citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Stanton gave an explanation that he believed the juror had a law enforcement bias. The trial judge found that the first step under Batson had not been met and that, even if it had been met, Stanton had provided a race-neutral reason. Osburn made no further objections.
During McCoy's trial, the State had Daniels, Roby, and the 26 police officers testify about the events concerning McCoy's case. Many of the police officers testified about what they had seen and done after they entered the hotel room without a warrant. Moreover, Spencer was unavailable as a witness at trial, but several police officers testified about the statements she made while being removed from the hotel room. Osburn consistently objected to the admission of Spencer's statements.
At the jury instruction conference, Osburn requested a jury instruction on criminal restraint as a lesser included offense to his kidnapping charges. The trial judge denied this request.
The jury ultimately found McCoy guilty of kidnapping Spencer but not of kidnapping A.M, five of the six counts of aggravated assault on a law enforcement officer, and one count aggravated assault on Spencer, aggravated endangering a child, criminal possession of a firearm, possession of cocaine, solicitation to commit perjury, and possession of hydrocodone. McCoy was found not guilty of all other counts. The trial judge sentenced McCoy to 355 months' imprisonment, with his kidnapping, aggravated assault on law enforcement officer, and aggravated endangerment of a child convictions to be served consecutively.
McCoy filed his notice of appeal in November 2012. This court issued an order on March 24, 2014, stating that it retained jurisdiction over McCoy's appeal under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
Did the Trial Court Err When It Denied McCoy's Motion to Dismiss?
After the police removed Spencer from the hotel room, a struggle ensued between McCoy and the police officers who entered his hotel room. According to Officer Burlie, McCoy attempted to take his holstered gun from him during the struggle. When Burlie realized this, he yelled out that McCoy was trying to get his gun. Officer Pickering responded by placing McCoy in a LVNR. A LVNR is a maneuver that allows a person to breathe in, but prevents oxygen from reaching the brain. This results in the person losing consciousness. Pickering testified that he placed McCoy in a LVNR until he lost consciousness.
After McCoy lost consciousness, the police placed handcuffs on McCoy and zip-tied his feet. At trial, the officers testified that McCoy was breathing naturally while unconscious; however, Burlie wrote in his police report that McCoy needed help to start breathing again. Next, Officer Meyers applied what he called a “kidney slap” to wake McCoy up. From Meyers' description, it seems he hit McCoy in the kidneys to jolt him back into consciousness. Meyers testified that McCoy was still angry when he regained consciousness, so he placed him in a second LVNR while McCoy was handcuffed and his feet were zip-tied. Meyers also testified that McCoy never lost consciousness during the second LVNR because he did not apply as much pressure.
Following his arrest, McCoy began acting strangely. He was informed of his rights to an attorney and to remain silent but decided to speak to the police anyway. According to Meyers, McCoy “continued to talk about off the wall things, things about the end of the world coming and Armageddon type of things.” Osburn ultimately moved to dismiss based on the theory that the police officers used excessive force which violated McCoy's due process rights. Alternatively, Osburn moved to suppress the statements made to the police following the LVNR. The trial court denied the motion to dismiss based on excessive force, finding that the use of the LVNR was “justified and reasonable under the circumstances,” but granted the motion to suppress statements based on McCoy's mental state.
McCoy appeals the trial court's denial of his motion to dismiss based on excessive force. McCoy argues that this court should dismiss his case because the actions of the police officers were so unreasonable as to offend justice.
To support his argument, McCoy cites the United State Supreme Court case Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and this court's case State v. Orloske, 45 Kan.App.2d 1034, 257 P.3d 794 (2011), rev. denied 293 Kan. 1112 (2012). In Rochin, the United States Supreme Court determined that the police violated Rochin's due process rights by pumping his stomach to retrieve some ingested drugs. 342 U.S. at 173–74. In citing Orloske, McCoy points out that the Orloske court stated: “The constriction by the police of a suspect's airway for any length of time is usually considered too extreme and therefore a due process violation. Loss of oxygen to the brain can lead to irreversible brain injury or death very quickly.” 45 Kan.App.2d at 1042. Ultimately, the Orloske court held that the suppression of the drugs that Orloske had coughed up after a police officer kneed him in the thigh twice was warranted because it was not shocking or unreasonable. 45 Kan.App.2d at 1042.
McCoy's case, however, is factually distinct from both Rochin and Orloske. Both Rochin and Orloske dealt with whether the police took unreasonable action in attempting to obtain incriminating evidence. Here, McCoy was not attempting to destroy evidence. Instead, McCoy's case involves whether the police used excessive force while arresting McCoy. The only evidence that the police obtained from their alleged use of excessive force were McCoy's statements to the police following the arrest. Yet, the trial court suppressed those statements, so this is no longer an issue. As a result, the rules and standards McCoy relies on in Rochlin and Orloske as a basis for why this court should reverse the trial court and dismiss his case are inapplicable. Moreover, as the State points out in its brief, nothing in Orloske indicates that dismissal of a criminal case is an appropriate sanction for a defendant's claim of excessive force.
McCoy does not cite any authority that supports his argument that this court should dismiss his case based on use of excessive force by the police during his arrest. In fact, it seems there is no Kansas caselaw supporting dismissal of a case based on excessive force used during arrest. Furthermore, when defendants have raised this argument in other jurisdictions, those jurisdictions have rejected this argument. See, e.g., United States v. Collins, 714 F.3d 540, 543–44 (7th Cir.2013) (surveying cases); Nadolinski v. State, 46 Wis.2d 259, 267, 174 N.W.2d 483 (1970) (holding that “[t]he remedy for the use of excessive force in making an arrest may be a civil action for damages, but not dismissal of the criminal charge for which he was arrested”); State v. Figueroa, No. 2 CA–CR 2012–0458, 2014 WL 287959, at *5, ¶ 22 (Ariz.App.2014) (unpublished opinion) (holding that it could provide no remedy for Figueroa's excessive force claim because there is no authority “for the proposition that a defendant is entitled to dismissal of a criminal prosecution or the suppression of evidence when police officers use excessive force in making an arrest”); State v. Mata, 160 Wash.App. 1043, 2011 WL 1138023, at *2 (unpublished opinion) (2011) (holding that it could not remedy police officer's use of excessive force during arrest).
There are certainly major issues regarding the methods employed by the police when they arrested McCoy, especially concerning the kidney slap and the second application of the LVNR when McCoy was already restrained. The State's arguments that the LVNR is different from a chokehold and somehow a better option than a chokehold are uncompelling given that the goal of the LVNR is to cut off oxygen to a person's brain. Nevertheless, McCoy's excessive force argument in this appeal is misplaced because the use of excessive force is not grounds for reversal of already completed criminal acts. The issues McCoy raises in this section are better suited for a claim under 42 U.S.C. § 1983 (2012).
Did the Trial Court Err When It Denied McCoy's Motion to Suppress?
When Daniels and Roby called the police, they told the police that McCoy was at a hotel with A.M. and Spencer, that McCoy would not give A.M. to Daniels, and that McCoy had a gun. The police were sent to the hotel at 4:38 p.m. According to several police officers, during their initial attempts to contact McCoy, McCoy would yell, “[G]et back, get the fuck back.” When Lieutenant Robert McClarty heard McCoy yell, “[G]et the fuck back, get away, fucking kill ‘em,” he decided to move back away from McCoy's hotel room and ask the ERT for help.
Once the police moved back from McCoy's hotel room, the ERT officers attempted to contact McCoy every 60 seconds by megaphone and by calling his cell phone. Periodically, the police heard A.M. crying as trains passed by the hotel. Officer McClarty testified that he started to become concerned when he no longer heard A.M. crying as the trains passed by the hotel. When there was no sound or movement coming from the hotel room after 45 minutes, the police decided to enter the room. Officer Pickering testified that right before the police entered the hotel, he heard McCoy yell, “[D]on't come in here, get the fuck back, I have a baby.” The police entered the hotel room without acquiring a warrant at 9:05 p.m.
After the police entered the hotel room, Officer Hedges seized McCoy's gun when McCoy lost control of it during the standoff. After McCoy's arrest, the police searched the hotel without obtaining a search warrant. The police seized a pipe with methamphetamine in plain view and a digital scale hidden in the ceiling of the bathroom.
Before trial, McCoy moved to suppress all evidence seized from the hotel room as fruit from an unlawful search and seizure. McCoy argued that there were no exigent circumstances justifying the warrantless entry of the police. The State argued that the warrantless entry was allowed under the emergency aid exception and also noted that the police had a municipal court warrant for McCoy's arrest. There was a hearing on many pretrial motions, including the motion to suppress. Although the trial judge ruled on the other pretrial motions, he did not rule on the motion to suppress the evidence.
At trial, the parties and the trial judge proceeded as if the trial judge had denied the motion to suppress. As discussed later, Osburn failed to object to the testimony of the first police officer who testified about the warrantless entry of the hotel room and the events that happened inside the hotel room following the warrantless entry. Nevertheless, when Osburn actually objected based on the pretrial motion to suppress all evidence and testimony about the breach of the hotel room and the events that happened inside the hotel room, the trial judge stated, “Overruled, noted.” At the hearing on the motion for a new trial, Osburn argued that the trial court erred when it denied the motion to suppress evidence. The trial judge responded:
“[A]s to the previous motions, the court granted the motion to suppress statements. The motion to suppress evidence the court denied. The officers certainly under the circumstances, there was exigent circumstances and certainly legal cause to go into the room to protect the safety of the child and the other victim.”
On appeal, McCoy essentially makes two arguments. First, McCoy contends that there was no emergency situation giving the police the right to a warrantless entry of his hotel room. Second, McCoy contends that because the police had no warrant, the search of his hotel room following his arrest violated his Fourth Amendment rights under the United States Constitution. Accordingly, McCoy asks this court to suppress all evidence resulting from the warrantless entry into his hotel room.
As an initial matter, although McCoy asks this court to suppress the physical evidence seized from the hotel room, McCoy was acquitted of all charges stemming from the evidence seized from the hotel room. Again, the police found a pipe containing methamphetamine in plain view and a scale hidden in the ceiling. Based on this evidence, the State charged McCoy with one count of drug paraphernalia with intent to introduce a controlled substance in the body, one count of possession of methamphetamine, and one count possession of drug paraphernalia with the intent to package a controlled substance for sale. The jury found McCoy not guilty of all three counts. Consequently, whether the police had the right to search the hotel room following McCoy's arrest is moot, and the only pertinent issue remaining is whether the police had a right to enter his hotel room without a warrant.
McCoy's argument that the trial court erred in finding the police had the right to enter his hotel room without a warrant also fails. Before discussing why McCoy's argument fails, however, it is important to address the fact that the trial court did not deny McCoy's motion to suppress on the record. In State v. Karson, 297 Kan. 634, 639, 304 P.3d 317 (2013), our Supreme Court outlined the standard of review for motions to suppress as follows:
“Our review of an evidence suppression issue is bifurcated. Without reweighing the evidence, the appellate court first examines the district court's findings to determine whether they are supported by substantial competent evidence. [Citation omitted.] The district court's legal conclusions are then reviewed de novo. If there are no disputed material facts, the issue is a question of law over which the appellate court has unlimited review. [Citation omitted.]”
It is difficult to conduct such a review, however, when the trial court has failed to deny the motion on the record.
In State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014), a case about a trial court's denial of a motion to suppress, our Supreme Court held that “[w]hen an appellate court is presented with inadequate findings, the proper course taken depends on whether the issue was raised and can be resolved without remand.” Here, while McCoy notes in his brief that the trial court did not deny the motion to suppress on the record, neither McCoy nor the State dispute that the trial court and the parties treated the motion as if it had been denied. Moreover, this court has some insight as to why the trial court treated the suppression motion as denied based on the trial judge's statements when he denied McCoy's motion for a new trial. Based on those statements, it seems the trial judge believed that the warrantless entry by the police was allowed under the emergency aid exception, stating that there was “legal cause to go into the room to protect the safety of the child and the other victim” and the exigent circumstances exception. Thus, although the trial court failed to deny the motion on the record, it seems from the trial court's statements that an inference can be made that in actuality the motion to suppress was denied based on the exigent circumstances and emergency aid exceptions to warrantless entry.
Regardless of whether the trial court made adequate findings, however, McCoy did not properly preserve this issue for appeal. To preserve an issue on appeal, a party must make an on-the-record “objection to evidence timely interposed and so stated as to make clear the specific ground of objection.” K.S.A. 60–404. “Nothing short of an objection at the time evidence is offered satisfies this requirement.” State v. Downey, 27 Kan.App.2d 350, 361, 2 P.3d 191 (2000) (citing State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 [1989] ). “This rule holds true even if the trial court already denied a motion to suppress evidence prior to trial.” State v. Riojas, 288 Kan. 379, 385, 204 P.3d 578 (2009).
In this case, Osburn failed to object to the testimony of the first police officer who testified at trial about the events inside the hotel room after the police had already entered without a warrant. At trial, Officer Josh Long, who followed the ERT officers into the hotel room, testified that he saw McCoy on the hotel bed physically holding onto Spencer and A.M. with a gun in his hand. Long also testified about McCoy pointing his gun at Spencer, McCoy pointing his gun at the police officers, and McCoy struggling with the police officers during the arrest. While Osburn objected to Long testifying about statements Spencer made inside the hotel room, Osburn never objected to Long's testimony about what he had witnessed after the police entered the hotel room. Officer McClarty testified after Long. During McClarty's testimony, Osburn asked for a continuing objection to all testimony regarding the events following the breach of the hotel.
Even though Osburn objected to the testimony about the events that occurred after the police entered the hotel room when the very next police officer testified, this does not satisfy the strict statutory requirements under K.S.A. 60–404. In State v. Davis, No. 104,258, 2011 WL 6413624, at *3 (Kan.App.2011) (unpublished opinion), this court held that Davis waived appellate review of his claim when he objected to the testimony of two witnesses but failed to object to the testimony of the third witness. As in Davis, McCoy failed to object to only one witness, but this failure was critical given that Officer Long testified before McCoy requested a continuing objection. Consequently, McCoy did not preserve this issue for appeal.
In summary, McCoy's argument regarding the physical evidence seized from the hotel room is moot and McCoy's argument regarding the warrantless entry of the police into his hotel room was not preserved for appeal.
Did the Trial Court Err in Denying McCoy's Batson Challenge?
During voir dire, the State used a preemptory challenge against R .L., the only African–American venireperson. Before being struck, both Stanton and Osburn spoke with R.L. Stanton asked R.L. about his experiences with local law enforcement officers. R.L. explained to Stanton that his apartment had been broken into, that his car had been stolen, and that the police had not followed up on his complaints about the apartment or car. When Stanton asked R.L. if these instances would “cause [him] to have a problem sitting as a fair and impartial juror,” R.L. responded, “No.”
R.L. and Osburn discussed R.L.'s concerns about being a juror. R .L. stated that he wanted to serve but was “a little nervous about it.” The following conversation then occurred:
“MS. OSBURN: Okay. What part makes you nervous?
“JUROR: I know it's a dumb question, but by looking at him, what race?
“MS. OSBURN: Okay. What race is he? Let's say he's African–American. Does that make a difference?
“JUROR: Not really. But I'm from the south and from Alabama, and I seen a lot.
“MS. OSBURN: You've seen a lot?
“JUROR: Right.
“MS. OSBURN: Okay, Well, and I didn't bring this up in the first panel. So if we have an African–American man in Reno County, Kansas, and there's a lot of white faces I'm looking at. You're the exception, Mr. [R.L.]. Should that make a difference on whether or not or how a jury should look at his case, what his race is.
“JUROR: No, it shouldn't.
“MS. OSBURN:....
“So Mr. [R.L.], some of the things you said is I'm from the south, I've seen this stuff, that kind of stuff. The color of my client's skin or his race really shouldn't make a difference, but in reality it may or may not, right?”
Next, Osburn explained that if a juror believed a defendant's race was playing a factor in jury deliberations, then that juror needs to “call them on it,” reminding the jury that a defendant's race is irrelevant in determining that defendant's guilt. Osburn then asked R.L., “So that's the part that makes you a little nervous, right, Mr. [R.L.]?” R.L. responded, “Right.”
Later, Stanton used a preemptory challenge to strike R.L. Osburn objected citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial judge asked for a response, and Stanton stated:
“Judge, there's been no pattern established, number one. Number two, this court knows I don't strike as to race reasons and the problem with Mr. [R.L.] was the statement he made that being he's from the south and he's seen things, which indicated to me that under the circumstances of this case, with a, a, my police officer—I'm not worried about race. I'm worried about the situation where I have so many police officers involved in making the arrest of the defendant, and the statement that Mr. [R.L.] made that he's from the south and he's seen things. And that's my reason at this point. I'm not sure he could be fair on an apparent bias, I think, towards law enforcement and government more than anything else. That's my, that's my race neutral reason.”
The trial judge then found that “the first test of a pattern has not been met” and even if it had been met that Stanton gave a race-neutral reason. Osburn made no objection to Stanton's race-neutral reason or to the trial court's findings.
On appeal, McCoy contends that the trial court erred in making this finding because he had established that Stanton's challenge was race based, that Stanton did not provide a race-neutral reason, and that Stanton's discrimination was purposeful.
A challenge to the State's use of a peremptory challenge during jury selection under Batson is analyzed in three distinct steps, with different standards of review for each step. State v. Kettler, 299 Kan. 448, 461, 325 P.3d 1075 (2014). First, the defendant must make a prima facie showing that the prosecutor's challenge was made on the basis of race; this step raises a question of law, and appellate review of this issue is plenary. 299 Kan. at 461. Second, if a prima facie showing is made, then the prosecutor must articulate a race-neutral reason for striking the juror in question. The prosecutor's explanation must be facially valid, but does not need to be persuasive or even plausible. The reason offered will be deemed race neutral unless a discriminatory intent is inherent in the explanation. 299 Kan. at 462. Third, the trial court must decide whether the objecting party has carried the burden of proving purposeful discrimination. The decision on this step hinges on credibility determinations, which is within the trial court's province to decide and is reviewed for abuse of discretion. 299 Kan. at 462.
In his brief, McCoy asserts that he has made a prima facie showing that the prosecutor's challenge was made on the basis of race. To support this assertion, McCoy cites State v. Trotter, 280 Kan. 800, 127 P.3d 972 (2006), and State v. Davis, 37 Kan.App.2d 650, 155 P.3d 1207 (2007). In Trotter, our Supreme Court found that it was important to consider the presence of other members of the same minority on the jury and the State's failure to remove such members in a Batson analysis. 280 Kan. at 812. In Davis, this court found that it was apparent that Davis made a prima facie showing that the prosecutor secluded two venirepersons on the basis of race when those potential jurors were the only African–American members of the jury panel. 37 Kan.App.2d at 658. Moreover, McCoy cites State v. Greene, No. 109,753, 2014 WL 2402803, at *2 (Kan.App.2014) (unpublished opinion), rev. denied 301 Kan. (April 28, 2015), where this court found that the first step of Batson was not at issue when the prosecutor struck the only African–American venireperson.
The State contends that this court should not follow Greene because the Greene court did not cite any authority to support its conclusion that the defendant made a prima facie showing that the prosecutor's challenge was race based. Nonetheless, it seems obvious that if a prosecutor strikes the only member of a specific minority, that a defendant has sustained his or her burden of making a prima facie showing that the challenge was race based. Given that Stanton struck the only African–American venireperson, McCoy has met his burden under the first Batson step.
In any case, McCoy's argument fails under the second Batson step. In State v. Washington, 275 Kan. 644, 655, 68 P.3d 134 (2003), our Supreme Court held that an appellate court must “accept as true the statements of fact given by the prosecutor for purposes of determining whether the prosecutor gave race neutral reasons for the strikes if the defendant failed to object to the statements.” Here, Osburn made the initial Batson objection, but the defense made no further objection after Stanton explained why he used a preemptory challenge on R.L., and the trial court held that this was a valid reason. Consequently, this court must accept as true Stanton's reasoning for striking R.L.
As discussed earlier, both Stanton and Osburn spoke with R.L. during voir dire. In Stanton's explanation why he struck R.L., Stanton seems to have combined his conversation with R.L. and Osburn's conversation with R.L. This is evident because Stanton interpreted R.L.'s statement that he was “from the south and from Alabama, and I seen a lot” and his statements about his experiences with local police together to form the opinion that R.L. would be biased against law enforcement.
McCoy contends that if one reads in between the lines, one will discover that Stanton's motivations were race based because when Stanton said R.L. was from the south and had seen things, he really meant that R.L. was an African–American from the south who had seen things. Nevertheless, Stanton did not mention race in his explanation of why he struck R.L. Stanton stated that he struck R.L. due to a law enforcement bias based on his comments about being from the South and seeing things. Since McCoy failed to object to Stanton's explanation, this court must accept the law enforcement bias reasoning as true. Thus, this court must find that the trial court did not abuse its discretion concerning the Batson challenge because McCoy was unable to establish that Stanton's reason was not race neutral.
Moreover, even if this court did not have to accept Stanton's explanation as true, his explanation is race neutral given the lenient standards under the second Batson step. Stanton did not explicitly make any statement concerning race, only that given R.L.'s statement that he was from the South and had seen things made him believe that R.L. was biased against law enforcement. McCoy asks this court to consider Stanton's discussion of the fact that R.L. stated that he is from the South and had seen things as a comment on R.L.'s race. To do this, however, this court would have to infer that Stanton was commenting on R.L.'s race based upon the fact that R.L. is from a specific geographical region. Again, under the second step of Batson, a prosecutor's statements need only be facially valid and will be accepted as race neutral unless a discriminatory intent is inherent in the explanation. Kettler, 299 Kan. at 462. Stanton's explanation that he believed R.L. had a bias against law enforcement is a facially valid reason. Therefore, McCoy's Batson challenge would fail under the second step even if he had objected to the explanation because discriminatory intent was not inherent in Stanton's explanation.
Was McCoy's Constitutional Right to Confrontation Violated?
Although there was a material witness warrant for her arrest, the State could not locate Spencer before McCoy's trial began. At trial, Stanton informed the trial court that he intended to bring in statements made by Spencer through the testimony of police officers who were present during the standoff inside the hotel room. Specifically, Stanton explained that he wanted to bring in statements made by Spencer to the police that McCoy had a gun on her, would not let her use her cell phone or acknowledge the presence of the police outside the hotel room, and was holding her and A.M. in the hotel room. The trial court addressed this issue outside of the presence of the jury. Stanton argued that the statements were excited utterances because the statements in question were made to the police by Spencer as she was being removed from the hotel room. Osburn argued that the statements were testimonial responses to the police that could not be admitted because it would violate McCoy's right to confrontation. The trial judge ultimately ruled that the statements were not testimonial and could be admitted through the police testimony as excited utterances.
At trial, Officer Schaffer testified that Spencer yelled, “ ‘[H]e had a gun to my head’ “ as the police removed her from the room. Osburn objected to this testimony, but the trial judge overruled the objection. Officer Siemens, who had pulled Spencer out of the hotel room, testified that Spencer stated that McCoy “had made her turn off her cellphone and did not allow her to yell or acknowledge [the police] presence on the outside.” Osburn objected to this testimony as hearsay, but the trial judge overruled the objection.
On appeal, McCoy argues the admission of Spencer's statements violated his constitutional right to confrontation. Specifically, McCoy takes issue with Officer Brooks' testimony that Spencer yelled, ‘ “[H]e had a gun to my head’ “ and Officer Siemens' testimony that Spencer stated that McCoy “made her turn off her cell phone and [would not] allow her to yell or acknowledge our presence in the outside.” McCoy contends that those two statements were testimonial hearsay and did not fall under the excited utterance exception. Based on this belief, McCoy asks this court to reverse and remand his case for a new trial.
Whether an evidentiary ruling violated a defendant's constitutional right is reviewed de novo on appeal. State v. Robinson, 293 Kan. 1002, 1023, 270 P.3d 1183 (2012). “[T]estimonial out-of-court statements offered for the truth of the matter asserted cannot be used against a criminal defendant unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant.” State v. Brown, 285 Kan. 261, 291, 173 P.3d 612 (2007). Otherwise, such statements violate the Confrontation Clauses of the United States and Kansas Constitutions. “[T]he test to determine whether the admission of hearsay statements violates a defendant's rights under the Confrontation Clause turns on whether the statement is testimonial.” State v. Davis, 283 Kan. 569, Syl. ¶ 2, 158 P.3d 317 (2006). If this court determines that the statement was not testimonial and therefore does not implicate the Confrontation Clause, then “the only consideration before the court is whether [the statement] may be admitted under one of the statutory exceptions to Kansas hearsay law.” 283 Kan. 569, Syl. ¶ 2.
Thus, to resolve whether the trial court erred in admitting Spencer's statements in this case, this court must (1) determine if the statements were testimonial and, if not, (2) determine if the statements properly fit under the excited utterance hearsay exception. In Brown, 285 Kan. at 291, our Supreme Court listed four factors a court should consider in determining whether a statement was testimonial:
“(1) Would an objective witness reasonably believe such a statement would later be available for use in the prosecution of a crime?
“(2) Was the statement made to a law enforcement officer or to another government official?
“(3) Was proof of facts potentially relevant to a later prosecution of a crime the primary purpose of the interview when viewed from an objective totality of the circumstances, including circumstances of whether
(a) the declarant was speaking about events as they were actually happening, instead of describing past events;
(b) the statement was made while the declarant was in immediate danger, i.e., during an ongoing emergency;
(c) the statement was made in order to resolve an emergency or simply to learn what had happened in the past; and
(d) the interview was part of a governmental investigation?; and
“(4) Was the level of formality of the statement sufficient to make it inherently testimonial; e.g., was the statement made in response to questions, was the statement recorded, was the declarant removed from third parties, or was the interview conducted in a formal setting such as in a governmental building?”
Spencer's statements were not testimonial based on these factors. Although an objective witness may reasonably believe that Spencer's statements would later be available for prosecution because the statements were made to the police, Spencer's statements were clearly not testimonial under the third and fourth factor in Brown . Under the third factor, there was no police interview. Spencer freely told the police that McCoy had a gun to her head and would not let her use her cell phone or acknowledge the police presence as she was being removed from the hotel room. Thus, her statements were not made during a police interview as part of an investigation where the police were actively trying to obtain “proof of facts potentially relevant to a later prosecution of a crime.” Moreover, even if the police were interviewing Spencer, Spencer made these statements while there was an ongoing emergency as the police were still struggling to arrest McCoy; A.M. was still in the room; and Spencer herself was in the process of being removed from the room where she had been held at gunpoint.
Under the fourth factor, this exchange was not at such a level of formality as to make the statement inherently testimonial. In fact, the statement was made in a very informal manner. Spencer made those statements of her own accord as she was being taken out of the hotel room by the police. Those statements were not recorded or made during a formal interview process. Given that Spencer made those statements to the police on her own as the police escorted her from the hotel room, the trial judge correctly ruled that the statements were not testimonial.
After establishing that Spencer's statements were not testimonial, the only issue left to resolve is whether Spencer's statements constituted excited utterances. Under K.S.A. 60–460(d)(2), an excited utterance is “[a] statement which the judge finds was made ... (2) while the declarant was under the stress of a nervous excitement caused by such perception.” McCoy contends that Spencer's statements were not excited utterances because she was no longer under the stress or nervous excitement of the events giving rise to those statements when she made the statements.
This argument is unpersuasive. Here, Spencer made the statements as the police were removing her from the hotel room. In the seconds before Spencer made those statements, McCoy had been holding Spencer hostage by physically holding on to her with his arm while pointing a gun at her head and chest. Undoubtedly, Spencer was still under the stress of this event in the seconds immediately following her release. Accordingly, the statements that Spencer made to the police were excited utterances that could be introduced to prove the truth of the matter asserted.
Did the Trial Court Err By Denying McCoy's Request For a Criminal Restraint Jury Instruction?
Next, McCoy argues that the trial court erred when it denied his request for a criminal restraint jury instruction. During the jury instruction conference at McCoy's trial, Osburn requested that the trial judge include a jury instruction on criminal restraint as a lesser included offense of his charge of kidnapping Spencer. To support this argument, Osburn argued that McCoy had not pointed his gun at Spencer but had held the gun at her side. The trial judge denied this request, finding that this was a case of “either kidnapping or nothing at all” given that Spencer indicated that McCoy had a gun on her and would not let her use her cell phone. Consequently, the jury was only given an instruction on kidnapping Spencer by taking or confining her by force or threat with the intent to hold her as a shield or hostage.
In reviewing whether the trial court erred in denying a jury instruction on criminal restraint as a lesser included offense, this court conducts a four-step analysis. Those analytical steps with associated standards of review are as follows:
“ ‘(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied [ ––– U.S., –––– ] 132 S.Ct. 1594 (2012).’ “ State v. Waller, 299 Kan. 707, 719, 328 P.3d 1111 (2014) (quoting State v.. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 [2012] ).
In this case, McCoy preserved this issue for appeal because he requested the criminal restraint jury instruction below. Furthermore, criminal restraint constitutes a lesser degree of the crime of kidnapping and is therefore a lesser included crime of kidnapping. See State v. Ramirez, 299 Kan. 224, 232, 328 P.3d 1075 (2014). Thus, the criminal restraint instruction was legally appropriate.
While legally appropriate, the criminal restraint instruction was not factually appropriate based on the evidence presented at trial. In determining whether a lesser included offense instruction is factually appropriate, a trial judge must give the lesser included offense instruction “[i]n cases where there is some evidence which would reasonably justify a conviction of some lesser included crime.” K.S.A. 22–3414(3). Under K.S.A. 21–3424(a) “criminal restraint is knowingly and without legal authority restraining another person so as to interfere substantially with such person's liberty.” Again, the jury found McCoy guilty of kidnapping Spencer by taking or confining her by force or threat with the intent to use her as a shield or hostage as stated in K.S.A. 21–3420(a).
At trial, there was overwhelming evidence to support McCoy's kidnapping conviction. As discussed earlier, the police officers who entered the hotel room testified that McCoy physically held Spencer with his arm while pointing his gun at her chest and head. According to the police, McCoy was using Spencer to shield himself. Spencer also stated as she left the hotel room that McCoy had pointed his gun at her head and that he had refused to let her use her cell phone.
Although McCoy knowingly and without legal authority restrained Spencer as required under the criminal restraint statute, all the evidence presented at trial supports that McCoy took actions beyond restraining Spencer. The evidence presented at trial overwhelmingly supports that he used Spencer by taking and confining her by force or threat with the intent to hold her as a shield or hostage. Thus, the trial judge did not have a duty to give the criminal restraint jury instruction because the jury could not have reasonably convicted McCoy of criminal restraint based on the evidence presented.
This finding is consistent with this court's finding in State v.. Little, 26 Kan.App.2d 713, 994 P.2d 645 (1999), rev. denied 269 Kan. 938 (2000). In Little, Little had been charged with aggravated kidnapping and kidnapping based on his actions of confining the victims “with the intent to hold such person(s) or to facilitate flight or the commission of any crime.” 26 Kan.App.2d at 717. Little had requested an instruction on criminal restraint as a lesser included offense but the trial court had refused to give such an instruction. This court held that the trial court had no duty to give this instruction because no evidence supported that Little could possibly be convicted of criminal restraint because Little had moved the victims to different rooms and bound them to chairs. 26 Kan.App.2d at 718. Based on the fact that since Little had taken the overt actions of moving and binding his victims, there was no real possibility that the jury could find Little guilty of the lesser offense of criminal restraint. Likewise, in McCoy's case, given that McCoy was physically holding onto Spencer with his arm while pointing a gun at her and putting Spencer in between himself and the police after a several hour-long standoff, McCoy could not have reasonably been convicted of criminal restraint.
Finally, even if the criminal restraint instruction was factually appropriate, the trial court's failure to give the criminal restraint jury instruction was harmless. Under Ward, an error is reversible only if the defendant can show that there is a “reasonable probability that the error will or did affect the outcome of the trial in light of the entire record.” 292 Kan. at 569. Again, there was overwhelming evidence presented at trial that McCoy kidnapped Spencer. McCoy held Spencer with his arms, while pointing a gun at her, as the police entered the hotel room; and when Spencer exited the hotel room, she stated that McCoy had pointed a gun at her head and refused to let her use her cell phone. Given this evidence, any error resulting from the trial court's failure to instruct on the lesser included offense of criminal restraint was harmless because no reasonable jury would have found McCoy guilty of criminal restraint.
Was There Sufficient Evidence to Support McCoy's Kidnapping Conviction?
The jury found McCoy guilty of kidnapping Spencer. The jury was instructed on alternative means of kidnapping by taking and kidnapping by confining. The kidnapping jury instruction read as follows:
“In Count One, Deron McCoy, Jr. is charged with the crime of kidnapping. Deron McCoy pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That Deron McCoy, Jr. took or confined Kaneisha Spencer by force or threat;
“2. That it was done with the intent to hold such person as a shield or hostage;
“3. That this act occurred on or about the 22nd day of March, 2011, in Reno County, Kansas.”
On appeal, McCoy argues that there was insufficient evidence to support his kidnapping conviction under the alternative means of taking Spencer by threat or force. McCoy contends that he could not have taken Spencer into the hotel room by force or threat because there was no evidence presented that Spencer entered the hotel room involuntarily.
“Taking” and “confining” are alternative means of kidnapping. See State v. Haberlein, 296 Kan. 195, 208, 290 P.3d 640 (2012), cert. denied 1345 S.Ct. 148 (2013). “When a single criminal offense may be committed by alternative means, jury unanimity is not required as to the means by which the crime was committed, as long as substantial evidence supports each alternative means set out in the jury instructions.” State v. Brown, 295 Kan. 181, 184, 284 P.3d 977 (2012). A general verdict is adequate so long as there is sufficient evidence to support each alternative means submitted to the jury. State v. Schreiner, 46 Kan.App.2d 778, 782, 264 P.3d 1033 (2011), rev. denied 296 Kan. 1135 (2013).
The applicable standard of review in criminal cases challenging the sufficiency of the evidence is “[a]fter reviewing all the evidence in a light most favorable to the prosecution, the appellate court must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). This court does not “reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations” in determining whether there was sufficient evidence. 299 Kan. at 525.
In this case, there was sufficient evidence to support that McCoy kidnapped Spencer by taking her. As McCoy notes in his brief, kidnapping by taking does not require a “particular distance of removal, nor any particular time or place of confinement.” State v. Burden, 275 Kan. 934, 943, 69 P.3d 1120 (2003). Instead, “it is the fact, not the distance, of a taking (or the fact, not the time or place, of confinement) that supplies a necessary element of kidnapping.” 275 Kan. at 944.
All the police officers who entered the hotel room testified that when they entered the hotel room, McCoy was physically holding Spencer with his arm as he sat on the bed, using her body to shield himself. Those police officers additionally testified that McCoy pointed a gun at Spencer's chest and under her chin during the standoff. As Spencer was being held by McCoy, she yelled, “Don't shoot.” Moreover, when Spencer was leaving the room, she shouted that “[he] had a gun to my head” and that McCoy would not let her answer her cell phone or acknowledge the presence of the police outside the hotel room.
Thus, while Spencer voluntarily entered the room, at some point McCoy grabbed her, physically held on to her with his arm, and held a gun on her. Based on Spencer's statements during the standoff and as she was exiting the hotel room, she was not voluntarily being held by McCoy. As a result, McCoy's argument that there was not sufficient evidence to support the alternative means of kidnapping by taking fails because his actions of physically holding onto Spencer while pointing a gun at her constitutes a taking.
Were the Five Counts of Aggravated Assault on a Law Enforcement Officer Multiplicitous?
The State charged McCoy with six counts of aggravated assault on a law enforcement officer in violation of K.S.A. 21–3411(a)(1). Specifically, McCoy was charged with one count each of aggravated assault on a law enforcement officer involving Officers Pickering, Garber, Trato, and Hirt, and two counts of aggravated assault on a law enforcement officer involving Officer Burlie. In regards to Burlie, McCoy was charged with assaulting Burlie when he pointed his gun at Burlie as Burlie entered the hotel room and when he allegedly grabbed for Burlie's holstered gun.
At trial, Pickering testified that McCoy pointed his gun at him when he entered the hotel room and also pointed it at him several times during the conflict. Pickering explained that McCoy went back and forth between pointing the gun at Spencer and pointing the gun at him. Garber testified that McCoy pointed the gun at him when he entered the room and also when he went back and forth between pointing the gun at him and at Spencer. Burlie testified that McCoy pointed his gun at him when he entered the hotel room. Trato testified that McCoy pointed his gun in his direction while he attempted to remove A.M. from the hotel room. Pickering, Garber, Burlie, and Trato all testified that they believed they were going to get shot. Hirt testified that although McCoy never pointed his gun directly at him, he was afraid that he could get shot when he saw that McCoy was moving his gun around and was pointing his gun at the other officers.
The jury found McCoy guilty of all counts of aggravated assault on a law enforcement officer except the count of aggravated assault of Burlie when McCoy allegedly grabbed for Burlie's holstered gun. The trial court sentenced McCoy to the aggravated presumptive sentence of 19 months' imprisonment for each count, with each count to be served consecutively.
For the first time on appeal, McCoy asserts that the five counts of aggravated assault on a law enforcement officer under K.S.A. 21–3411 were multiplicitous because all five counts arose out of the same conduct. In making this argument, McCoy asks that this court reverse his five aggravated assault on a law enforcement officer convictions.
K.S.A. 21–3411(a)(1) states that an “[a]ggravated assault of a law enforcement officer is an aggravated assault as defined in K.S.A. 21–3410 and amendments thereto: (1) Committed against a uniformed or properly identified, county or city law enforcement officer while such officer is engaged in the performance of such officer's duty.” K.S.A. 21–3410(a) states that an aggravated assault is an assault under K.S.A. 21–3408 that is committed with a deadly weapon. K.S.A. 21–3408 states that an “[a]ssault is intentionally placing another person in reasonable apprehension of immediate bodily harm.”
When considering whether convictions are multiplicitous in violation of the prohibition against double jeopardy, this court has unlimited review. State v. Sellers, 292 Kan. 346, 356, 253 P.3d 20 (2011). Multiplicity is “ ‘the charging of a single offense in several counts of a complaint or information.’ “ 292 Kan. at 345 (citing State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 [2006] ). This court must consider two questions when determining whether convictions are multiplicitous: “(1) Do the convictions arise from the same conduct and, if so, (2) by statutory definition are there two offenses or only one?” ‘ State v. Schoonover, 281 Kan. at 496. In order for the convictions to be multiplicitous, both components to this inquiry must be met, meaning that the convictions must arise out of the same conduct and only one offense exists by statutory definition. 281 Kan. at 496.
The Schoonover court also listed four factors that a court should consider in determining whether convictions arise from the same conduct under the first prong of the test. Those factors are as follows:
“(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.” 281 Kan. at 497.
In considering the first prong of the test, it seems very clear that McCoy's aggravated assault on a law enforcement officer convictions arose from the same conduct under the second, third, and fourth Schoonover factors. The assaults occurred at the same location where McCoy pointed his gun at the officers while sitting on the hotel bed. The aggravated assaults were related to one another—as all the assaults occurred during the period between the police entering McCoy's hotel room and when McCoy lost control of the gun—without any intervening events. Moreover, there is no evidence that there was a fresh impulse motivating McCoy's different assaults.
Regarding the aggravated assaults of Pickering, Garber, Burlie, and Trato, our Supreme Court has held that “[a]ssaults by the defendant with a pistol upon each of two different law enforcement officers occurring during one episode, but at different times, constitute separate offenses of aggravated assault upon each of the law enforcement officers.” State v. Bradley, 215 Kan. 642, Syl. ¶ 6, 527 P.2d 988 (1974). In Bradley, Bradley pointed his gun at one police officer and then immediately pointed his gun at another police officer all while sitting in his car. The Bradley court held that while the assaults occurred in the same episode, each assault constituted a separate offense. 215 Kan. at 648. In State v. Moll, No. 89,933, 2003 WL 23018239, at *2 (Kan .App.2003) (unpublished opinion), rev. denied 277 Kan. 927 (2004), this court held that Moll's assault charges were not multiplicitous when Moll had pointed his gun at one officer and then turned and pointed his gun at another officer. The Moll court found that these acts constituted two separate offenses. 2003 WL 2318239, at *2.
McCoy's case is similar to Bradley and Moll. Like in Bradley and Moll, McCoy pointed his gun at multiple police officers. First, McCoy pointed his gun at the police officers as the police entered the hotel room. Second, according to the officers' testimony, McCoy switched back and forth between pointing his gun at Spencer and pointing his gun at the police. Pickering, Garber, and Trato all testified that McCoy pointed the gun directly at them while already in the hotel room. Burlie testified that McCoy pointed his gun at him as he entered the room. The fact that McCoy actually pointed his gun at each police officer, moving back and forth between holding his gun against Spencer and pointing his gun at the police, separates the assault offenses in time. Thus, McCoy's action of pointing his gun at Pickering, Garber, Trato, and Burlie constitute four separate aggravated assaults on law enforcement offenses because while the assaults occurred in the same episode, the assaults also occurred at different times.
The aggravated assault of Hirt, however, requires additional analysis because Hirt testified that he was afraid that he would get shot when McCoy pointed his gun at the other officers. This means that the aggravated assault on Hirt arises from the same conduct as the aggravated assaults on Pickering, Garber, Burlie, and Trato because the assault on Hirt arose at the same time as the assaults on the other officers. Consequently, this court must consider the second prong of the multiplicity test to determine whether by statutory definition there are two offenses or only one.
In Schoonover, our Supreme Court provided the following guidance in determining whether by statutory definition a defendant's actions constituted two offenses or just one offense:
“If the double jeopardy issue arises because of convictions on multiple counts for violations of a single statute, the test is: How has the legislature defined the scope of conduct which will comprise one violation of the statute? Under this test, the statutory definition of the crime determines what the legislature intended as the allowable unit of prosecution. There can be only one conviction for each allowable unit of prosecution.
The unit of prosecution test applies under either the Double Jeopardy Clause of the Fifth Amendment or § 10 of the Kansas Constitution Bill of Rights.” 281 Kan. at 497–98.
In arguing that his convictions are multiplicitous, McCoy relies on Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958). In Ladner, Ladner had been convicted of violating 18 U.S.C. § 254 (1940) by assaulting two federal officers with a deadly weapon when he fired his shotgun a single time at the officers, injuring both officers. After interpreting 18 U.S.C. § 254, the United States Supreme Court held that “the single discharge of a shotgun alleged by the petitioner in this case would constitute only a single violation of § 254.” 358 U.S. at 178.
Yet, Ladner is distinguishable from McCoy's case. As noted in Moll, Ladner involved the statutory interpretation of 18 U.S.C. § 254, “a statute whose language is markedly different than K.S.A. 21–3411.” Moll, 2003 WL 23018239, at *2. 18 U.S.C. § 254 not only made it illegal to assault a law enforcement officer, but it also made it illegal to forcibly resist, oppose, impede or intimidate an officer. Ladner, 358 U.S. at 176. The Ladner Court ultimately held that the single discharge of the defendant's shotgun constituted a single violation of 18 U.S.C. § 254 because it could not determine Congress' intent in creating 18 U.S.C. § 254. The Ladner Court found that based on the language of 18 U.S.C. § 254, Congress could just as easily have enacted 18 U.S.C. § 254 for the purpose of preventing an assault on officers as it did for the purpose of preventing hindrance to the execution of an officer's official duty, an offense which it determined could not be charged multiple times based on the number of officers present. 358 U.S. at 174–76.
Here, the intent of the legislature in enacting K.S.A. 21–3411 is unambiguous. The legislature intended to punish those who commit aggravated assault on a law enforcement officer. Again, K.S.A. 21–3411(a)(1) states that an aggravated assault of a law enforcement officer is an aggravated assault under K.S.A. 21–3410 that is “[c]ommitted against a uniformed or properly identified, county or city law enforcement officer while such officer is engaged in the performance of such officer's duty.” (Emphasis added.) From the plain language of the statute, it is seems that the legislature intended that one conduct could create multiple offenses. The fact that the legislature stated that an offense exists when the singular “law enforcement officer” is assaulted, not when the plural “law enforcement officers” are assaulted, suggests that the legislature intended that the State could charge a defendant with a violation under K.S.A. 21–3411 for each law enforcement officer who was placed in reasonable apprehension of immediate bodily harm. Moreover, the statute does not contain an alternative punishment for when a defendant assaults multiple law enforcement officers at one time. Thus, it is readily apparent that the legislature defined the scope of an aggravated assault on a law enforcement officer as a chargeable offense for each law enforcement officer placed in reasonable apprehension of immediate bodily harm with a deadly weapon.
As a result, even though the aggravated assault charge on Hirt arose out of the same conduct as the aggravated assaults on Pickering, Garber, Burlie, and Trato, McCoy's conviction for aggravated assault on Hirt is not multiplicitous because the legislature intended that a defendant could be charged with multiple offenses of aggravated assault on a law enforcement officer based on the same conduct. Furthermore, it is worth noting that even if the aggravated assaults on Pickering, Garber, Burlie, and Trato arose out of the same conduct, those convictions would not have been multiplicitous because the legislature intended to create multiple offenses of aggravated assault of a law enforcement officer for each officer assaulted by statutory definition. For these reasons, McCoy's argument that his five convictions of aggravated assault on a law enforcement officer are multiplicitous fails.
Did Cumulative Trial Errors Substantially Prejudice Mccoy to the Point It Denied Him a Fair Trial?
Next, McCoy argues that his convictions must be reversed due to the cumulative trial errors of denying his motion to dismiss, denying his motion to suppress, denying his Batson challenge, finding that Spencer's statements were not testimonial and constituted excited utterances, denying his request for a criminal restraint jury instruction, and because his kidnapping conviction was not supported by sufficient evidence and his aggravated assault on law enforcement charges were multiplicitous.
In determining whether there is cumulative error, the test is whether the totality of the circumstances establish that the defendant was substantially prejudiced by cumulative errors. But no prejudicial error may be found under this cumulative effect rule if the evidence is overwhelming against the defendant. State v. Lewis, 299 Kan. 828, 858, 326 P.3d 387 (2014). Moreover, this court will not find cumulative error when the record fails to support the errors the defendant raises on appeal. State v. Betancourt, 299 Kan. 131, 147, 322 P.3d 353 (2014).
In this case, McCoy was unable to establish any trial errors on appeal. As discussed earlier, the trial court did not err in denying the motion to dismiss because dismissing a criminal case for use of excessive force by police during arrest is not a proper remedy. Regarding the motion to suppress, McCoy's argument about the physical evidence is moot because he was acquitted of all charges stemming from the physical evidence seized from his hotel room and McCoy's argument about the warrantless entry of the hotel room was not preserved for appeal. McCoy failed to object to Stanton's race neutral reason for striking juror R.L.; and even if he had, the reason given was race neutral under the lenient Batson standards. McCoy's constitutional right to confrontation was not violated because Spencer's statements were not testimonial and constituted excited utterances. There was sufficient evidence to convict McCoy of kidnapping Spencer by taking under alternative means. Finally, McCoy's aggravated assault convictions were not multiplicitous.
Did the Trial Court Err When It Denied McCoy's Request to Represent Himself at His Joint Motion and Sentencing Hearing?
At McCoy's joint hearing on his motion for a new trial and sentencing, immediately after the trial judge denied the motion for a new trial, the following discussion occurred:
“MS. OSBURN: Judge, Mr. McCoy just told me that he wished to address the court regarding that issue, the issue of his
“THE DEFENDANT: I just about
“THE COURT: He'll get, at sentencing he'll be allowed to make any statements to the court he wishes.
“THE DEFENDANT: I would like to invoke my rights.
“THE COURT: No sir, you be quiet right now until we proceed with sentencing and I ask you to speak.
“MS. OSBURN: He just said he wanted to represent himself, judge.
“THE COURT: No, he's not representing himself at this point. He'll be allowed to make any statements he wished to at sentencing.”
The trial judge then proceeded to sentence McCoy.
Later at sentencing, the trial judge told McCoy he could address the trial court with any evidence or testimony he wished to mitigate his sentence. McCoy told the trial judge that he thought that Osburn prejudiced him when she told the jury that he was in jail and could not make bond. Based on this, McCoy requested a mistrial. The trial judge denied this request, explaining that Osburn could not avoid discussing that McCoy was in jail and could not afford bond because his solicitation to commit perjury charge arose from his attempts to contact Daniels while in jail. The trial judge then sentenced McCoy.
McCoy appeals the trial court's denial of his request to represent himself pro se at the joint motion for new trial and sentencing hearing. McCoy contends that the trial court committed structural error when it summarily denied his request to represent himself without making the necessary findings that McCoy made a knowing and voluntary waiver of his right to counsel as required in Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). McCoy further asks this court to vacate his sentence and remand this case for a new hearing on the motion for a new trial and resentencing.
“Generally, the extent of the right to assistance of counsel is a question of law over which this court exercises unlimited review. State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010). A defendant's right to represent himself or herself is implicit within the structure of the Sixth Amendment to the United States Constitution. Faretta, 422 U.S. at 819. When a defendant clearly and unequivocally expresses a wish to proceed pro se, that defendant has “the right to represent himself or herself after a knowing and intelligent waiver of his or her right to counsel.” Jones, 290 Kan. at 376. A defendant has made a knowing and intelligent waiver only if the defendant has been informed of “ ‘the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.’ “ “ Jones, 290 Kan. at 373 (quoting Faretta, 422 U.S. at 835 ).
Thus, once a defendant clearly and unequivocally expresses his or her desire to proceed pro se, the trial court must make an inquiry to determine whether a defendant has made a knowing and intelligent waiver of his or her rights. Violation of a defendant's right to self-representation is structural error that cannot be harmless. Jones, 290 Kan. at 382. When a defendant's right to represent himself or herself is violated, that defendant is entitled to a new trial. 290 Kan. at 382–83.
In this case, McCoy stated that he wanted to “invoke his rights,” and then Osburn explained to the trial judge that McCoy was wanted to represent himself. The trial judge recognized that McCoy had asked the court to proceed pro se, but he denied the request without further inquiry. Undoubtedly, McCoy's and Osburn's statements together informed the trial court that McCoy wished to proceed pro se. The fact that the trial judge recognized McCoy's request to proceed pro se demonstrates that McCoy made an unequivocal request. Since McCoy made an unequivocal request but the trial court denied the request without making an inquiry as to whether McCoy was knowingly and intelligently waiving his right to counsel, the trial court violated McCoy's Sixth Amendment right to self-representation.
During oral argument, the State conceded that the trial court did not make a proper inquiry as to whether McCoy was knowingly and intelligently waiving his right to counsel.
Here, the trial judge failed to make the proper inquiries to determine if McCoy was making a knowing and intelligent waiver of his right to counsel. Since McCoy made this request at his joint motion for new trial and sentencing hearing, we vacate McCoy's sentence and remand for a new hearing on McCoy's motion for a new trial and resentencing. When he returns to the trial court, the court should ask McCoy whether he still wishes to proceed pro se and, if so, make the proper inquiries to determine whether he is making a knowing and voluntary waiver of his right to counsel.
Affirmed in part, reversed in part, and remanded with directions for a new hearing on McCoy's motion for a new trial and resentencing.