IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 91,727
STATE OF KANSAS,
Appellee,
v.
ERIC BROWN,
Appellant.
SYLLABUS BY THE COURT
1. Judicial comments which are not instructions to the jury are reviewed under judicial misconduct standards. The party alleging judicial misconduct has the burden of establishing that the misconduct occurred and that the conduct prejudiced the substantial rights of the complaining party. The mere possibility of prejudice from a trial court's remarks is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remarks unobjectionable, the remarks are not prejudicial.
2. An appellate court's review of an allegation of judicial misconduct, which is unlimited, must be based upon the particular facts and circumstances of the case. When a defendant's right to a fair trial is alleged to have been violated, the judicial comments are reviewable on appeal despite the lack of a contemporaneous objection.
3. If restrictions are placed on juror identification or information, due process concerns are raised regarding a defendant's rights to an impartial jury and the presumption of innocence. If a trial court withholds any juror information, it must both: (1) find that the jury needs protection and (2) take reasonable precautions to avoid prejudicing the defendant.
4. An error which affects a defendant's constitutional right to the presumption of innocence should be reviewed under the constitutional harmless error rule. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Thus, before an appellate court may declare the error harmless, it must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.
Appeal from Montgomery district court; RAWLEY J. (JUDD) DENT II, judge. Opinion filed September 9, 2005. Reversed and remanded.
Sarah Ellen Johnson, assistant appellate defender, argued the cause and was on the brief for appellant.
Lee J. Davison, assistant attorney general, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.
The opinion was delivered by
LUCKERT, J.: A jury convicted Eric Brown of felony murder and attempted robbery. We reverse his convictions, finding he was denied a fair trial as the result of comments by the trial court. In the disputed comments, the trial court advised the jury that because of concerns for the jurors' safety and security, steps were being taken to prevent further disclosure of the jurors' identities. In the context of this case, we conclude that the trial court did not take adequate precautions to minimize the prejudicial effects of the comments.
The comments were made following jury selection and after the trial court was informed that a witness had been threatened. Although the individual responsible for making the threats had been identified and incarcerated, the court remained concerned for the safety of the jurors. The court decided to refer to jurors only by number from that point forward and asked the parties to turn over any documents which might contain the jurors' names. Brown did not object to the court's decision.
The trial court then informed the jury about the situation, stating:
"Overnight some concerns, as far as security and safety, have developed. Those are being investigated right now, and we're taking every precaution. They involve witnesses, at this particular point, but as a further precaution, insofar as your safety and security is concerned, I've retrieved from counsel and asked them to provide me with any juror list – they keep track of your names and your information, as far as your questionnaires are concerned. I've retrieved and will be retrieving from them anything that identifies you individually as a juror. Likewise, I've taken the Court's copy and those have all been sealed and secured in the clerk's office, and for further purposes, if necessary, I doubt that counsel will really need to be referring to any of you in the future, but as a precaution, I want everyone to sit where you're seated right now, and let's start with the back row, the first juror there, and you'll be one, and I'd just like you to count off so that counsel, we all have another sheet here, and we're going to refer to you by number if we have to refer to you at all . . . .
. . . .
"Now further precaution. I'll advise the public and the participants that if I'm made aware of any leak of any information concerning the identity of a juror, that will be dealt with as a contempt of Court issue and punishment will be whatever is deemed appropriate, at the time. And that includes public, press, counsel and parties and witnesses."
Brown did not object to the trial court's comments.
Since Brown argues these comments caused prejudice, we must consider the context of the comments and evidence presented. Following the disputed comments, the prosecutor presented the State's opening statement. Within the argument, the prosecutor told the jury:
"[T]he watchword of this investigation [was] fear. People fear for themselves. Fear for their families. There were witnesses that did not come forward until just recently, because of fear. Witnesses that have changed their story, initially denying that Eric Brown was involved, have changed their story to now say that he [was] involved, because of fear."
The prosecutor also stated:
"At the conclusion of the evidence . . . [w]e will stand before you and ask you to be brave like the witnesses that have [come] forward and will testify for you in these next few days, and we'll ask you to be brave like them and return a verdict of guilty on all counts."
The theme of fear was repeated at various times as the prosecutor presented evidence. The principal witness at the trial was Paula Wilson, the wife of victim Doug Wilson. Her testimony at trial was significantly different from the statements she initially gave police and her testimony at the preliminary hearing. She explained to the jury that she had initially lied because she was afraid.
At trial, Paula testified that on Friday, November 9, 2001, she and her husband Doug were driving through Independence in search of crack cocaine. Doug saw Chris Brown, one of Doug's regular cocaine suppliers, and followed Chris and Brown, who is Chris' brother, to South 16th Street. Chris and Brown got out of their vehicle, and Brown ran into a nearby house. Chris came to the driver's side door of Doug's car and sold him a $20 rock of crack cocaine. After Chris walked away, Brown approached Doug's window and told him he wanted his money. Doug held up his wallet, which contained cash from the paycheck Doug had received that day, but refused to give it to Brown. Brown pulled out a gun and fired three shots into the car, hitting Doug. Although Doug was able to drive away from the scene, he soon collapsed, and Paula then drove him to the emergency room. Doug underwent surgery for his injuries but died within a few hours.
When Paula initially spoke with police, she did not tell police about the drug deal or that Doug had been driving the car because she knew that Doug had no driver's license and she did not want him to get into trouble. She also told police that she could not identify the shooter except to say he was a black male. At trial, Paula explained that she had been "scared for her life" and was reluctant to identify either Brown or his brother because both men knew who she was. Paula stated, "I was afraid if they thought I could really tell who did it, they'd be after me." At different points in her testimony, Paula stated, "I was scared," "I had to protect myself," and that she was afraid of being hurt.
One other eyewitness, Cameron Johnson, who was 15 years old at the time of the shooting, identified Brown as the shooter. Johnson testified that on the day of the shooting, he had been using alcohol and marijuana. That evening, as he was headed toward South 16th Street to try to find more marijuana, he saw Brown firing a gun at a person inside a car. Johnson was asked if he was afraid to testify, and he stated that he feared retaliation.
At least five different witnesses testified they saw Brown with a handgun on the day before or the day of the shooting. One of these witnesses, who testified she saw Brown with a gun on the day of the shooting, heard the shooting, and saw the victim's car leaving the scene but could not identify the shooter's sex or race, was asked by the prosecutor why she did not come forward with information immediately after the shooting. She responded, over Brown's objection, that she was scared.
Other witnesses testified about conversations with Brown during the week following the shooting. Brown told his former lover, Shannon Werner, there had been a shooting on South 16th Street, he and his brother's names were "in it," and that he would be leaving Independence. Virgil Vaughn testified he overheard Brown saying that "he had to smoke the guy" because "he owed him some money." David Robison testified Brown admitted shooting the victim because he had disrespected Brown's brother.
Bennie Freeman recalled Brown telling him that "[e]verybody was running around making statements on him, and it was all lies, because there wasn't but a couple of people there, him and [his brother]." In addition, over Brown's objection, Freeman was asked about an encounter he and Brown had earlier on the day Freeman testified. Freeman stated Brown was visibly upset and yelled at him, calling him names like "police mother fucker" and "snitch mother fucker." Freeman was asked if he took this as threatening, and Freeman replied, "No." Later, the trial court admonished the jury to disregard the testimony related to this incident.
Other evidence presented as part of the State's case included the testimony of police officers who discovered the victim's wallet lying in the street at the scene of the shooting; the wallet still contained over $500 in cash. Officers also recovered a partial palm print from the driver's front door of Doug and Paula's car, which matched Brown's palm print.
Although Brown did not testify, the jury viewed videotapes of three police interviews of him. While Brown consistently denied committing the murder, he admitted that earlier in the day he had been in the neighborhood where the murder took place.
Brown called one alibi witness, Anthony Taylor, who testified Brown was at his home during the time the shooting took place. Taylor, however, had previously made a statement to an assistant Montgomery County attorney that Brown had admitted shooting the victim. Taylor made this statement while he was incarcerated on a burglary charge and, at trial, explained that he "told them what they wanted to hear to save my own neck."
Brown also called Cameron Johnson's aunt, who testified that Cameron was playing in a park across from her house several blocks away from the shooting when it took place. This testimony cast doubt on whether Cameron could actually have witnessed the shooting from his location.
In closing arguments, the prosecutor returned to the theme of fear. There were numerous references to Paula Wilson being scared. At one point the prosecutor said Paula "was scared out of her mind of drug dealers. Was she the only witness that said I'm scared, that got on this stand and said I'm scared for my family? Cameron Johnson said the same thing. Other witnesses . . . said the same thing." Later, the prosecutor reiterated that Cameron Johnson was scared.
Was the Defendant Denied a Fair Trial?
On appeal, Brown argues his substantial rights to a fair trial were prejudiced because of the trial court's actions and remarks. He argues the trial court's comments denied him a fair trial by undermining the presumption of innocence because the remarks implied that he was a dangerous person. In addition, Brown objects to the trial court's determination that it was appropriate to withhold information about the jury. The ruling and remarks are intertwined and will be discussed together.
Standard of Review
Judicial comments which are not instructions to the jury are reviewed under judicial misconduct standards. State v. Davidson, 264 Kan. 44, 51, 954 P.2d 702 (1998). The party alleging judicial misconduct has the burden of establishing that the misconduct occurred and that the conduct "prejudiced the substantial rights of the complaining party. Mere possibility of prejudice from a judge's remark 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.]" State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002).
An appellate court's review of an allegation of judicial misconduct, which is unlimited, must be based upon the particular facts and circumstances of the case. 274 Kan. at 118. When a defendant's right to a fair trial is alleged to have been violated, the judicial comments are reviewable on appeal despite the lack of a contemporaneous objection. 274 Kan. at 118.
Analysis In support of his argument that the ruling and remarks denied him a fair trial, Brown cites several articles and cases which warn that empaneling an anonymous jury may affect the jury's perception of the defendant by implying that the defendant is dangerous or apt to harass or influence jurors, thereby implicating the defendant's constitutional right to a presumption of innocence. See, e.g., United States v. Thomas, 757 F.2d 1359, 1362-65 (2d Cir. 1985); United States v. Krout, 66 F.3d 1420, 1426-28 (5th Cir. 1995); United States v. Ross, 33 F.3d 1507, 1519-22 (11th Cir. 1994); Abramovsky and Edelstein, Anonymous Juries: In Exigent Circumstances Only, 13 St. John's J. Legal Comment. 457 (1999); Margolin and Uelmen, The Anonymous Jury: Jury Tampering By Another Name? 9 Crim. Just. 14 (Fall 1994); Annot., Propriety of, and Procedure for, Ordering Names and Identities of Jurors to be Withheld from Accused in Federal Criminal Trial–"Anonymous Juries," 93 A.L.R. Fed. 135.
Empaneling an anonymous jury is viewed as a drastic measure which should be undertaken only under certain limited circumstances. Krout, 66 F.3d at 1427. The trial court must balance the need to ensure juror safety against the defendant's right to the presumption of innocence and the ability to conduct an effective voir dire. United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991), cert. denied 502 U.S. 1036 (1992). This balancing test is met where (1) there is strong reason to believe the jury needs protection and (2) the court takes reasonable precautions to minimize any prejudicial effects on the defendant and to ensure his or her fundamental rights are protected. Krout, 66 F.3d at 1427. "Within these parameters, and, again noting the seriousness of such a step, the decision whether or not to empanel an anonymous jury is left to the district court's discretion." 66 F.3d at 1427.
In general, state courts have followed the federal approach of requiring the trial court to (1) find a compelling reason to believe that the jury needs protection from external sources and (2) take reasonable precautions to minimize any prejudicial effects on the defendant and to ensure the defendant's rights are protected. See, e.g., Commonwealth v. Angiulo, 415 Mass. 502, 615 N.E.2d 155 (1993); State v. Bowles, 530 N.W.2d 521 (Minn. 1995); State v. Hill, 92 Ohio St. 3d 191, 200, 749 N.E.2d 274 (2001); Annot., Propriety of Using Anonymous Juries in State Criminal Cases, 60 A.L.R. 5th 39.
Factors which may justify a finding that the jury needs protection include:
"(1) the defendants' involvement in organized crime; (2) the defendants' participation in a group with the capacity to harm jurors; (3) the defendants' past attempts to interfere with the judicial process or witnesses; (4) the potential that, if convicted, the defendants will suffer a lengthy incarceration and substantial monetary penalties; and, (5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment. [Citations omitted.]" Krout, 66 F.3d at 1427.
In applying the second prong of the test – whether there were reasonable precautions to minimize any prejudicial effects – many courts have chosen to instruct the jury that the reason for their anonymity is to prevent the media from interfering with their privacy. See Thomas, 757 F.2d at 1364; United States v. Paccione, 949 F.2d 1183, 1193 (2d Cir. 1991), cert. denied 505 U.S. 1220 (1992). Other courts have described juror anonymity as a precautionary measure designed to ensure both sides receive a fair trial. See Ross, 33 F.3d at 1522; United States v. Crockett, 979 F.2d 1204, 1217 (7th Cir. 1992), cert. denied 507 U.S. 998 (1993). Yet other courts have simply told juries that anonymity is common practice. See United States v. Thai, 29 F.3d 785, 801 (2d Cir. 1994); Hill, 92 Ohio St. 3d at 200.
All of these methods are intended to "remove any stigma that might result from the jurors' awareness that unusual measures are being taken to protect their safety." Anonymous Juries: In Exigent Circumstances Only, 13 St. John's J. Legal Comment. at 473.
The State points out that this case did not involve the impanelment of a truly anonymous jury panel, since the parties had full access to unedited jury questionnaires during voir dire. It was only after jury selection that the trial court made the decision to identify jurors by number. Thus, the State contends that the situation should not be analyzed under the same legal standards as a truly anonymous jury.
The State's argument is only partially correct. Because the trial court did not order anonymity until after the jury was empaneled, there is no question that Brown's ability to conduct an effective voir dire was not hampered. However, there remains the concern that the trial court's order negatively impacted Brown's constitutional right to the presumption of innocence. In a similar situation considered in United States v. Peoples, 250 F.3d 630 (8th Cir. 2001), the parties knew the jurors' names but were instructed to refer to them only by numbers. On appeal, the Eighth Circuit Court of Appeals held that the district court could require the use of numbers for identification in any case; still, the court considered the comments of the trial court which had explained to the jury panel that the procedure of referring to them by numbers was "being employed to reduce the possibility that the media or others interested in the issues of this case might try to contact them." 250 F.3d at 635. The Peoples court found no error, holding that this explanation "was reasonably calculated to ensure that the use of numbers did not cause undue prejudice." 250 F.3d at 636.
Another case particularly on point is State v. Tucker, 259 Wis. 2d 484, 657 N.W.2d 374 (2003). In that case, the trial court ordered that jurors be referred to only by numbers during voir dire; however, the parties had access to the jurors' names. In considering whether the case truly involved an anonymous jury, the Tucker court stated:
"In this case, it may be more appropriate to describe the jury as a 'numbers' jury instead of an 'anonymous' jury since only the jurors' names were withheld from the record. Both parties had access to all the juror information, including the jurors' names. . . . A jury is typically deemed 'anonymous' when juror information is withheld from the public and the parties themselves. [Citation omitted.] Therefore, the jury in this case was not a classic 'anonymous' jury. Notwithstanding whether the jury in this case is characterized as an 'anonymous' or a 'numbers' jury, if restrictions are placed on juror identification or information, due process concerns are raised regarding a defendant's rights to an impartial jury and a presumption of innocence. Accordingly, although this case does not deal with the classic 'anonymous' jury, the reasoning in cases involving anonymous juries is beneficial to our analysis." 259 Wis. 2d at 493.
The Tucker court concluded:
"[T]he restriction of juror information raises serious concerns regarding a defendant's rights to an impartial jury and a presumption of innocence. Accordingly, we uphold the two-prong test . . . and conclude that if a court withholds any juror information, it must both: (1) find that a jury needs protection; and (2) take reasonable precautions to avoid prejudicing the defendant." 259 Wis. 2d at 498.
The court next reviewed the trial court's decision, finding that the trial court had failed both prongs of the test. With regard to the second prong of the test, the Tucker court held: "When jurors' names are withheld, as in this case, the circuit court, at a minimum, must make a precautionary statement to the jury that the use of numbers instead of names should in no way be interpreted as a reflection of the defendant's guilt or innocence." 259 Wis. 2d at 499-500. The court found that giving only general instructions on the presumption of innocence and the State's burden of proving guilt beyond a reasonable doubt was not sufficient. 259 Wis. 2d at 499.
We find this analysis persuasive and hold that when a trial court takes the unusual step of withholding jurors' names and using numbers for juror identification, a two-part test should be applied to strike a reasonable balance between the need to ensure juror safety and the defendant's right to a fair trial. First, there must be a reason to protect the jurors from identification. This decision will be left to the trial court's discretion. Second, the court must take reasonable precautions to minimize any prejudicial effects on the defendant. A neutral explanation should be given, and the jury should be instructed that the use of numbers instead of names should in no way be interpreted as a reflection of the defendant's guilt or innocence.
In this case, the State argues that the trial court had ample reason to be concerned about juror safety, given Brown's behavior in the weeks leading up to the trial. Brown was a management problem in both the county jail and in Larned State Security Hospital during his stay there for a competency evaluation. The sheriff's department had limited Brown's jail visits and phone calls in the weeks leading up to trial because of threats concerning witnesses contained in some of Brown's outgoing correspondence. At a pretrial hearing where defense counsel raised the issue of the revocation of Brown's visitation privileges, Brown became unruly and then left the courtroom. Then, the trial court received information that, on the night before the trial was to begin, a witness had been threatened by a telephone call.
These facts do not rise to the same level as the facts of many of the federal cases involving anonymous juries where defendants were involved in organized crime and witnesses had been murdered. See Paccione, 949 F.2d 1183; Krout, 66 F.3d 1420; Crockett, 979 F.2d 1204. However, other factors enumerated in those cases are present in this case. Brown had made threats against witnesses in outgoing correspondence from the jail, someone else had threatened a witness the night before trial, and Brown potentially faced a lengthy incarceration if convicted of the murder charge. Several cases have approved the use of anonymous juries because of the presence of some combination of these factors. E.g., United States v. Edmond, 52 F.3d 1080, 1091 (D.C. Cir. 1995); Ross, 33 F.2d at 1520-21. We conclude that the trial court did not abuse its discretion in taking steps to limit identification of the jurors in this case.
More troubling, however, is the second prong of the test: Did the trial court take reasonable precautions to avoid prejudicing the substantial rights of the defendant? The State contends that the trial court's comments were similar to the comments made by the judge in State v. Gadelkarim, 256 Kan. 671, 887 P.2d 88 (1994). In that case, the judge informed prospective jurors that he would reveal only the streets where they lived but not their house numbers. He explained that he used this procedure to alleviate any apprehension jurors might have about serving in a criminal case. Gadelkarim argued these remarks caused jurors to fear retaliation and suggested the jury should convict Gadelkarim to insure he remained incarcerated.
The Gadelkarim court disagreed, finding Gadelkarim had failed to establish that the trial court's comments prejudiced his rights or had any effect on the jury. The court found nothing in the record to show that the trial court's remarks incited the jury or affected the jury's impartiality. The court stated: "Taken in context, the court's statements were clearly designed to assuage any potential discomfort the prospective jurors may have had with the voir dire process." 256 Kan. at 678.
The State points out that, in this case, the trial court did not accuse Brown of being involved in threatening witnesses nor did the court single out Brown in announcing who was responsible for keeping the identities of the jurors secret.
Nonetheless, this case is quite different from Gadelkarim. In Gadelkarim, the trial court's comments indicated to the jury that the procedure of not revealing house numbers was commonly used. The judge told the jury that "there had never been any repercussions and . . . he wanted to be considerate of the jurors." 256 Kan. at 678. In this case, the jurors were not told that referring to them by numbers was a commonly used procedure. Rather, the jury was informed that there were concerns about the safety and security of witnesses and that the court was taking precautions out of concern for the jurors' safety. The fact that the procedure was unusual was emphasized because the procedure was instituted after jury selection. Thus, the jurors' awareness of the concern was heightened. Nothing was said to remove any stigma that might result from the announcement that concerns for safety and security led the trial court to institute special procedures. Further, when the comments are placed in the context of the arguments of the State and the testimony of the witnesses, the comments implicated Brown. Thus, a neutral explanation was not given; nor was there an additional instruction that the use of numbers for juror identification should not be interpreted as a reflection of the Brown's guilt or innocence. We hold that the comments infringed upon Brown's presumption of innocence and right to a fair trial.
Brown correctly contends that because the error affected his fundamental constitutional right to the presumption of innocence, the error should be reviewed under the constitutional harmless error rule announced in Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967). In State v. Kleypas, 272 Kan. 894, 1084-85, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), this court noted that the language used to express the constitutional harmless error rule in Kansas is slightly different from the language used in Chapman, which explicitly places the burden on the State; the standard, however, is essentially the same.
This court has stated the constitutional harmless error rule as follows:
"An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Thus, before an appellate court may declare the error harmless, it must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial." State v. Bell, 266 Kan. 896, Syl. ¶ 9, 975 P.2d 239, cert. denied 528 U.S. 905 (1999).
In evaluating claims of constitutional error, this court has considered whether the evidence of guilt was of such a direct and overwhelming nature that it can be said that violation of the constitutional right could not have affected the result of the trial. See State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004). The State contends that the evidence against Brown in this case was overwhelming; therefore, this court should find that any error was harmless. The State contends that if the jury were actually incited against Brown, surely it would have convicted him of robbery rather than the lesser included offense of attempted robbery. This argument ignores the fact that the jury did convict Brown of the most serious offense, first-degree felony murder. Also, the jury's decision to convict Brown of attempted robbery rather than robbery was almost certainly based upon the evidence that the victim's wallet was found at the scene with over $500 in cash still inside.
Additionally, the State argues that the comments at issue were made at the beginning of trial and the jury did not begin deliberations until 3 days later. However, the concerns of safety were reinforced throughout the trial by the repeated references regarding fear. As quoted earlier, the theme of fear was introduced to the jury during the prosecutor's opening statement, as the jury was told the "watchword" of the investigation was fear; the jury was told, "People fear for themselves. Fear for their families." During questioning of witnesses, there were many instances, including some not previously mentioned, where witnesses were asked if they were afraid or felt threatened. From opening statements to closing arguments, the jury was reminded of the role fear played in the investigation, and jurors were asked by the State to "be brave like the witnesses that have come forward." The trial court's statements, while not a direct comment on the evidence or credibility of any witness, certainly added weight to and made more plausible the State's assertions regarding witness credibility and, at least potentially, left the jury with the impression that any fears felt by witnesses and used as an excuse for their lying or recalcitrance was justified because the court had also developed a sense of fear.
Given this context, can we declare beyond a reasonable doubt that the trial court's comments had little, if any, likelihood of ch