State v. Stieben

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,446

STATE OF KANSAS,
Appellee,

v.

JULIE STIEBEN,
Appellant.


SYLLABUS BY THE COURT

1.
When a jury asks the trial court a question relating to the evidence, the trial court
must not invade the factfinding province of the jury. The trial court should rely on
K.S.A. 22-3420(3) and K.S.A. 60-248(e) in formulating a response to the jury's question.

2.
The right to a jury trial includes allowing the jury to decide the materiality of the
evidence supporting an element of the crime charged. The prosecution not only bears the
burden of proving all the elements of the offense charged, it must also persuade the jury
beyond a reasonable doubt of the facts necessary to establish each of those elements.

3.
A jury instruction that includes a factual determination made by the trial court
invades the province of the jury as the factfinder and violates the defendant's rights to
have the jury determine his or her guilt or innocence.



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4.
It is the role of the jury to determine the facts and to apply the law to those facts in
reaching its decision. A plea of not guilty places all issues in dispute, including even
things most patently true. However strong the State's case may be, the jury has the power
to accept it, reject it, or find it insufficiently persuasive. The defendant has a right to free
and unhampered exercise by the jury of all its powers.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 13,
2009. Appeal from Ford District Court; DANIEL L. LOVE, judge. Opinion filed July 29, 2011. Judgment of
the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed.

Christina M. Waugh, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.

Douglas W. McNett, of Larned, argued the cause, and John Sauer, county attorney, and Steve Six,
attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: At about 9:15 in the evening of April 20, 2006, Kansas Highway Patrol
Trooper Keefe Hemel was patrolling on Highway 50 west of Dodge City, Kansas. As he
was driving west, he encountered an east-bound car traveling at 51 miles per hour in a 65
miles-per-hour zone. The approaching car drifted toward the "fog line," or the white
right-hand lane marker. Hemel turned around and caught up with the car in order to
continue to observe how it was being driven. Over a course of about half a mile, the car
crossed the fog line three times. After about 25 seconds, Hemel turned on his emergency
lights, and the car pulled over to the side of the highway. A videotape was available of
the last few seconds of his following the car and the subsequent events at the side of the
road.
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Julie Stieben was driving the car. Hemel asked her whether she had been drinking
alcohol, because he smelled an odor he associated with alcoholic beverages coming from
the car. She said she had not. He observed that her eyes were bloodshot and watery. He
asked her to step out of the car for field sobriety testing. Hemel smelled the strong odor
of an alcoholic beverage about her as they stood outside her car.

Stieben initially performed a walk-and-turn test, and she failed five indicators,
including balance, counting, turning, and foot placement. She also failed a one-leg-stand
test. Finally, she failed a horizontal gaze nystagmus (HGN) test. Hemel then placed
Stieben under arrest and drove her to the Ford County Detention Center, where she
refused to take a blood-alcohol breath test. An inventory search of the car failed to
disclose any alcohol or contraband but did reveal the presence of strong-smelling trash
and rotting food.

On May 18, 2006, the State filed an information charging Stieben with one count
of operating a motor vehicle while under the influence of alcohol, pursuant to K.S.A.
2005 Supp. 8-1567(a)(3), and one count of operating a motor vehicle while improperly
driving on a laned roadway, pursuant to K.S.A. 8-1522. On January 19, 2007, Stieben's
attorney, Leslie A. Hess, filed a motion requesting that Judge Daniel L. Love disqualify
himself from the case pursuant to K.S.A. 20-311d. Following a hearing, Judge Love
denied the motion.

Hess then filed an affidavit asserting various negative interactions between Judge
Love and herself over the course of more than a year. Hess also filed a motion to suppress
the vehicle stop for lack of probable cause and lack of reasonable suspicion of criminal
activity. Judge E. Leigh Hood reviewed the affidavit and found insufficient grounds to
remove Judge Love. Following an evidentiary hearing, Judge Love then denied the
motion to suppress.
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The State elected to file an amended information that omitted the count of
improperly driving on a laned roadway. The case proceeded to jury trial, where the only
witness was Trooper Hemel. He testified about the driving he had observed and Stieben's
performance on the field sobriety tests. He did not testify about the HGN test. A jury
found Stieben guilty of operating a vehicle while under the influence of alcohol. The
court sentenced Stieben as a third-time offender to 1 year in jail, with all but 90 days
suspended, of which she was required to serve 10 days in jail. It also fined her $1,500 and
placed her on probation for 1 year.

Stieben took a timely appeal to the Court of Appeals, which affirmed the
conviction. State v. Stieben, No. 99,446, unpublished opinion filed February 13, 2009.
This court granted Stieben's petition for review.

The Jury Question and the Answer from the Bench

Twenty-eight minutes after it began deliberations, the jury delivered a question to
the court. The following discussion took place:

"THE COURT: I was just handed a question from the bailiff. We're in the
courtroom. Defendant is present. Both attorneys are here. The question is: 'Did Defendant
cross the fog line before the officer turned around?' And, the presiding juror signed this,
Laura Shenk. I had that in my notes that Hemel saw the Defendant eastbound, driving
slowly and that she crossed the fog lane marker. That's in my notes.
"MS. KUHN: That's what I have.
"MRS. HESS: I mean, I want them to go back to the testimony, Judge,
because I don't think she crossed it as he passed her.
"MS. KUHN: My recollection of the testimony is he stated that she was going 51
in a 65 and that she crossed the fog line as he passed her, and then he turned around to
follow her, and she crossed it three more times.
"MRS. HESS: Then, I think we need to make sure before we answer that.
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"THE COURT: That's my recollection. I have it written down. I'm going to write
yes. And, with no more explanation than that.
"MRS. HESS: We object, Judge, without looking at the record."

Trooper Hemel's actual testimony was: "The vehicle had also drifted toward the
fog line when it was coming at me." On cross-examination, he testified that when he first
encountered Stieben he did not see any traffic violations and saw no conduct that would
have led him to stop her.

The response by the trial court constituted error in at least two ways. First, the
court violated the express provisions of K.S.A. 22-3420(3). Second, the court intruded on
the province of the jury to act as the factfinder, interfering with Stieben's constitutional
right to a trial by jury by not only answering the question, but by answering it incorrectly,
possibly prejudicing Stieben's defense.

The first point of error relates to the application of the statutes governing jury
questions. K.S.A. 60-248(e) allows the court to respond to a jury request for further
information relating to any part of the evidence as the court finds to be required under the
circumstances. Although the court apparently found its own notes and the memory of the
prosecution to suffice, there was disagreement between counsel as to what the testimony
had actually been. The jury did not specifically ask that it return to the court for a reading
of the testimony, as K.S.A. 22-3420(3) allows. But K.S.A. 22-3420(3) explicitly allows
the court to have the testimony read or exhibited to the jury, and where the parties were in
disagreement about the testimony, such a direct showing to the jury would have excused
the court from relying on its notes and memory.

Where the jury is "obviously confused" on a point of law, the court has an
obligation to provide further instruction, even if the original jury instruction would
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normally have been sufficient. The failure of the trial court to give the jury additional
information was clearly prejudicial and denied the defendant a fair trial. See State v.
Bandt, 219 Kan. 816, 823, 549 P.2d 936 (1976); see also State v. Dunnan, 223 Kan. 428,
433, 573 P.2d 1068 (1978) (trial court has duty to give jury guidance by answering
questions "accurately"). We find that the statutory scheme similarly contemplates a
clarifying answer when the jury is obviously confused on a point of fact, and K.S.A. 22-
3420(3) provides a direct and uncomplicated mechanism for resolving a jury's confusion.

In this case, the jury confusion related to a point of evidence, and the confusion
extended to the trial court. The court therefore had a duty to clarify the confusion by
reviewing the transcript.

The second point of error relates to the respective functions of the trial court and
the jury. The jury asked the trial court to resolve a question of fact, and the court
complied with the jury's request. The court could have directed the jury instead to rely on
its collective memory, or the court could have read the testimony back to the jury. The
court elected, however, to inform the jury that Stieben crossed the fog line as the trooper
approached her.

The Sixth Amendment to the United States Constitution provides: "In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury . . . ." This right to a jury trial includes allowing the jury to decide the
materiality of evidence supporting an element of the crime charged. State v. Brice, 276
Kan. 758, 767, 80 P.3d 1113 (2003) (quoting United States v. Gaudin, 515 U.S. 506, 522-
23, 115 S. Ct. 2310, 132 L. Ed. 2d 444 [1995]). The prosecution not only bears the
burden of proving all the elements of the offense charged, it must also persuade the jury
beyond a reasonable doubt of the facts necessary to establish each of those elements.
Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993).
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An instruction that includes a factual determination made by the trial court
"invades the province of the jury as the factfinder" and violates the defendant's rights to
have the jury determine his or her guilt or innocence. Brice, 276 Kan. at 772.

It is the role of the jury to determine the facts independent of the trial court and to
apply the law to those facts in reaching its decision. A plea of not guilty places all issues
in dispute, including even things most patently true. "'"Whatever probative force the
government’s proof possessed, the jury had the power to accept or reject it―or to find it
insufficiently persuasive. The defendant had a correlative right to free and unhampered
exercise by the jury of all its powers." [Citation omitted.]'" Brice, 276 Kan. at 770-71
(quoting United States v. Mentz, 840 F.2d 315, 320 [6th Cir. 1988]).

It is for the jury alone to determine the credibility of eyewitnesses. State v. Carter,
284 Kan. 312, 328, 160 P.3d 457 (2007). An expert witness may not testify about the
weight or credibility of evidence because those matters belong strictly to the province of
the jury. State v. Graham, 246 Kan. 78, 81, 785 P.2d 983 (1990). In the present case, the
court itself went where an expert witness may not go: it did not just "testify" about the
credibility of certain evidence, it used its judicial authority to make the finding of fact for
the jury.

This usurpation of the jury's role was especially egregious because the court
provided the jury with an answer contrary to the only evidence presented. The Brice court
stated that a jury might elect to find a fact contrary to what is "patently true." Brice, 276
Kan at 770. It did not provide the trial court with the same prerogative.

The Court of Appeals restricted its analysis to whether the court's answer was
harmless error:

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"We cannot imagine that minor misinformation about the event that initially provoked the
arresting officer's attention had any impact on the jury's finding of guilt, especially where
there were numerous instances of 'crossing' the fog line thereafter.

"Despite the district court's erroneous answer, we are willing to declare beyond a
reasonable doubt that the error had little if any likelihood of changing the result of
Stieben's trial. [Citation omitted.] Notwithstanding the departure from the better practice
here, the trial court's answer to the jury inquiry was harmless." Stieben, slip op. at 10-11.

Harmless error analysis is inappropriate in the present case. Although it would
require speculation to find reasons why the jury considered the early driving infraction
important in its deliberation, the jury obviously considered it important enough to pose
the question to the court. The evidence against Stieben was strong but not overwhelming.
It consisted of a series of factors, any one of which standing alone might not have
sufficed for conviction. She drifted toward the fog line once and crossed it three times,
but she was not weaving all over the road. She committed no other traffic violations. She
failed portions of the field sobriety tests, but she was not reeling and she was able to
comprehend directions.

In State v. Myers, 255 Kan. 3, 9, 872 P.2d 236 (1994), this court found that the
district court has a statutory duty to read back testimony when a jury requested it and that
failure to comply with K.S.A. 22-3420(3) is not susceptible to harmless error analysis
because the requested testimony "could have changed the way the jury evaluated the
facts." In the present case, the requested testimony similarly could have changed the way
the jury evaluated the facts.

In order to preserve a conviction on appeal where a constitutional trial error has
been found, it is the State's burden, as the party favored by the error, to prove beyond a
reasonable doubt that the error did not affect Stieben's substantial rights, meaning it did
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not contribute to the verdict obtained. See State v. Ward, No. 99,549, this day decided;
Gamache v. California, ___ U.S. ___, ___, 131 S. Ct. 591, 592, 178 L. Ed. 2d 514
(2010). The trial court's invasion of the jury's province as factfinder effectively denied
Stieben her constitutional right to a jury trial. See Sullivan, 508 U.S. at 277 (although
judge may direct verdict for defendant if evidence is legally insufficient to establish guilt,
judge may not direct verdict for State, no matter how overwhelming the evidence). It is
unknown why the jury considered the question important enough to submit it to the trial
court, and it is unknown how the jury utilized the answer it received from the court. This
court therefore cannot conclude that the State has shown beyond a reasonable doubt that
the error did not affect Stieben's substantial rights.

For the foregoing reasons, we find that the trial court committed reversible error in
the way that it answered the jury's question about whether Stieben crossed the fog line
when she first encountered Trooper Hemel.

Stieben raises additional arguments on appeal relating to whether Trooper Hemel
had reasonable suspicion to stop her and whether he had probable cause to arrest her for
driving under the influence of alcohol. She raised no contemporaneous objection to
Trooper Hemel's testimony concerning her driving, but in light of our determination of
the issue of the trial court's response to the jury question, we need not address whether
these issues were preserved for appeal or whether the trial court properly admitted the
testimony. She also brings up issues regarding the prosecutor's characterization of her
driving and raises an allegation of bias on the part of the trial judge. Because we reverse
the conviction on the basis of the answer to the jury question, it is unnecessary to address
these final arguments.

Judgment of the Court of Appeals is reversed. Judgment of the district court is
reversed.
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WILLIAM B. ELLIOTT, District Judge, assigned.