State v. Burden

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NOT DESIGNATED FOR PUBLICATION

No. 116,810

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

AMBER E. BURDEN,
Appellant.


MEMORANDUM OPINION

Appeal from Sumner District Court; WILLIAM R. MOTT, judge. Opinion filed November 17,
2017. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Kerwin L. Spencer, county attorney, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., GREEN, J., and MERYL D. WILSON, District Judge, assigned.

PER CURIAM: Amber E. Burden appeals from a jury verdict finding her guilty of
unlawfully possessing marijuana and cocaine. She contends that the district court erred in
finding her competent to represent herself at trial and in instructing the jury that it
"should" find her guilty if it had no reasonable doubt as to the claims the State was
required to prove. Finding no error, we affirm.




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Factual and procedural background

The facts underlying this case began when Burden's daughter, B.B., gave drug
paraphernalia to her father when he came to lunch with her at school. B.B.'s father
reported the incident to the school, and the school principal reported the matter to law
enforcement. B.B. told officers the paraphernalia belonged to Burden and that she had
taken it from Burden's bedroom. Police officers went to Burden's residence to investigate.
When they asked Burden if they could search her residence, Burden replied that she
wanted to restrain her dogs first. Officers nonetheless swiftly entered Burden's residence
without a warrant and found drug paraphernalia and small quantities of marijuana and
cocaine.

Burden was charged with possession of marijuana, cocaine, and drug
paraphernalia. During her first appearance, Burden refused to recognize the district
court's authority and made repeated outbursts. Burden repeatedly demanded that the
charges against her be dropped and asserted that her rights were being violated. The
district court ultimately held Burden in contempt because she refused to leave the
courtroom at the conclusion of the hearing. Because of Burden's conduct, the district
court questioned her competency and ordered a competency evaluation.

The mental health care professional who conducted Burden's competency
evaluation concluded that Burden had "no significant impairment that is psychiatric in
nature, and that she [did] understand the nature and purpose of the criminal proceedings
against her." The district court determined that Burden had the capacity to assist counsel
in preparing her defense and that she was competent to stand trial.

Before trial, Burden elected to waive her right to counsel and to represent herself.
The district court determined that Burden was competent to stand trial and was capable of
representing herself because she understood the nature of the charges and courtroom
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procedure. The district court appointed stand-by counsel to aid Burden in her defense in
the event that she requested help.

Burden then filed two motions to dismiss the charges against her. Her first motion
asserted that the district court lacked jurisdiction over her. The district court denied that
motion, finding it had no merit. Her second motion again challenged the district court's
jurisdiction, arguing that she had the right to face her accuser and could not be prosecuted
because the State had not presented a plaintiff. The district court denied that motion as
well. Despite having received three continuances and having been urged by the district
court to file a motion to suppress, Burden never did so.

At trial, Burden represented herself. While cross-examining witnesses, she had
difficulty forming questions. The district court told Burden that she needed to ask
questions and not just talk. During her closing argument, Burden referenced a speech
which discussed the importance of maintaining power through consent rather than
through coercion. Burden related that speech to her assertion that she had not consented
to the search of her home. The district court warned Burden that she needed to address
the issues before the court.

After closing arguments, the district court instructed the jurors that if they had "no
reasonable doubt as to the truth of each of the claims required to be proved by the State
[they] should find [Burden] guilty." The jury found Burden guilty of unlawfully
possessing marijuana and cocaine but found her not guilty of possessing drug
paraphernalia. The district court sentenced Burden to 11 months in prison but placed her
on probation for one year. Burden now appeals her conviction.




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Did the district court correctly determine Burden was competent to represent herself?

Burden first contends that the district court applied the wrong standard in finding
her competent to represent herself because it did so after only finding her competent to
stand trial. She thus contends that the standard used to determine her competence to
represent herself should be different than the standard used to determine a defendant's
competence to stand trial. Burden contends that the manner in which she conducted
herself throughout the underlying proceedings shows that she was not competent to
represent herself—specifically, she was unable to subject the prosecution to "meaningful
adversarial testing."

Our determination of this appeal involves two related questions: (1) whether the
district court followed the proper procedure; and (2) whether Burden had the capacity to
proceed pro se.

Did the district court follow the proper procedure?

The Sixth Amendment to the United States Constitution confers the right to self-
representation in criminal proceedings. State v. Jones, 290 Kan. 373, 377, 228 P.3d 394
(2010). A criminal defendant has the right to proceed pro se after a knowing and
intelligent waiver of the right to counsel. 290 Kan. at 376.

A three-step framework guides our determination of whether a waiver meets that
test:

"Kansas courts have adopted a three-step framework to determine whether a
defendant's waiver of counsel is knowing and intelligent. First, a defendant should be
advised of both the right to counsel and the right to appointment of counsel in cases of
indigency. Second, the defendant must possess the intelligence and capacity to appreciate
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the consequences of the waiver. Third, the defendant must comprehend the nature of the
charges and proceedings, the range of punishment, and all facts necessary to a broad
understanding of the case. [Citations omitted.]" State v. Miller, 44 Kan. App. 2d 438,
441, 237 P.3d 1254 (2010).

At the competency hearing, the district court advised Burden of her right to
counsel and numerous other constitutional rights. Burden said that she understood those
rights. The district court specifically explained the benefits of being represented by an
attorney and told Burden numerous times that she would not have the benefit of a
lawyer's specialized knowledge if she chose to represent herself.

The district court also explained the charges and the consequences of a guilty
verdict to Burden, and she stated that she understood them. Burden's diagnosis showed
that she did not have any mental afflictions that would have hindered her ability to
understand the nature of her criminal proceedings. Our review of the record leads us to a
firm conviction that the district court thoroughly complied with the three-step procedure
noted above and that Burden knowingly and intelligently waived her right to counsel.

Was Burden competent to proceed pro se?

"Appellate courts employ an abuse of discretion standard when reviewing a
district court's decision about a defendant's competency to stand trial." State v. Woods,
301 Kan. 852, 860, 348 P.3d 583 (2015). That standard of review tacitly acknowledges,
as we expressly do here, that the trial judge who presided over the defendant's
competency hearing and his or her trial "will often prove best able to make more fine-
tuned mental capacity decisions, tailored to the individualized circumstances of a
particular defendant." Indiana v. Edwards, 554 U.S. 164, 177, 128 S. Ct. 2379, 171 L.
Ed. 2d 345 (2008).

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Judicial discretion is abused if judicial action is: (1) arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal
conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does
not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based. Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P.3d 560 (2013). Burden
bears the burden of proof on appeal. See Woods, 301 Kan. at 862.

Burden asserts that some substantive standard different from competence to stand
trial should apply in determining whether a defendant is competent to invoke the right to
self-representation, relying primarily on Edwards. But Edwards held that the United
States Constitution does not prohibit States from insisting upon representation by counsel
for defendants competent enough to stand trial but who suffer from severe mental illness
to the point that they are not competent to conduct trial proceedings by themselves. 554
U.S. at 169-78. That issue is not before us today, as no one insisted that Burden be
represented by counsel. Instead, she was permitted to represent herself. This case applies
the holding of Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562
(1975), that the Sixth and Fourteenth Amendments include a "constitutional right to
proceed without counsel when" a criminal defendant "voluntarily and intelligently elects
to do so." 422 U.S. at 807.

Additionally, we have previously rejected the argument that a separate standard
exists, finding: "No separate finding of mental competence, apart from competence to
stand trial, is necessary before a defendant may exercise the right of self-representation."
State v. McCall, 38 Kan. App. 2d 236, Syl. ¶ 1, 163 P.3d 378 (2007). We adhere to that
ruling here. A district court properly permits a defendant to represent himself or herself
when that defendant is competent to stand trial, as Burden was, and knowingly and
intelligently waives his or her right to counsel, as Burden did.

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The district court specifically determined that Burden was competent to represent
herself. We agree that some of Burden's legal arguments to the district court were
incoherent and that she failed to file a motion to suppress. But she did file two motions to
dismiss and managed to persuade the jury that she was not guilty of possessing drug
paraphernalia. The district court cannot determine competence by forecasting or
evaluating the criminal defendant's legal knowledge or technical skills. Jones, 290 Kan.
at 377. Having reviewed the record, we find that the conduct of her defense does not
reflect her inability to knowingly and intelligently choose self-representation.

We find that Burden's Sixth Amendment rights were fully protected. The district
court did not abuse its discretion in finding Burden competent to represent herself.

Was the jury instruction erroneous?

Burden next challenges the following instruction: "If you have no reasonable
doubt as to the truth of each of the claims required to be proved by the State, you should
find the defendant guilty." She specifically contends that use of the word "should" was
incorrect and prejudicial.

Burden contends that the words "should" and "must" are interchangeable and that
use of the word "should" is inappropriate because use of the word "must" is
inappropriate. Burden asserts that the word "'should' implies a moral, virtuous and ethical
obligation" that directs the jury to return a guilty verdict.

Generally, a criminal defendant must object to a proposed jury instruction before
the jury retires to consider its verdict, if the defendant seeks to challenge the instruction
on appeal. See K.S.A. 2016 Supp. 22-3414(3). Burden did not object to this jury
instruction. But an exception to that statute permits a criminal defendant to challenge on
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appeal a clearly erroneous jury instruction without first objecting at trial. Thus Burden
may challenge this instruction only if it was clearly erroneous.

The language used in the challenged instruction is identical to the language used in
our pattern jury instructions. See PIK Crim. 4th 51.010. Our Supreme Court has advised
that absent a need to modify the jury instructions, a district court should use the pattern
jury instructions. State v. Gallegos, 286 Kan. 869, 878, 190 P.3d 226 (2008). Burden did
not contend that any modification was necessary, and nothing in the record suggests to us
any need for modification.

Other panels of this court have rejected the same argument Burden makes and
have held that the use of "should" in this reasonable doubt instruction is legally
appropriate. See, e.g., State v. Campbell, No. 114,167, 2016 WL 3407598, at *3-4 (Kan.
App. 2016) (unpublished opinion) (collecting cases), rev. denied 306 Kan. __ (2017);
State v. McDuffie, No. 113,987, 2017 WL 2617648, at *8-9 (Kan. App. 2017)
(unpublished opinion), rev. denied 306 Kan. __ (2017); State v. Bostic, No. 115,114,
2017 WL 1382603, at *5-6 (Kan. App. 2017) (unpublished opinion), petition for rev.
filed May 12, 2017; State v. Spalding, No. 114,561, 2017 WL 1433513, at *8 (Kan. App.
2017) (unpublished opinion), rev. denied 306 Kan. __ (2017); State v. Bradford, No.
115,008, 2016 WL 7429318, at *3-4 (Kan. App. 2016) (unpublished opinion), rev. denied
306 Kan. __ (2017); State v. Hastings, No. 112,222, 2016 WL 852857, at *4-5 (Kan.
App. 2016) (unpublished opinion), rev. denied 306 Kan. __ (2017); State v. Jones, No.
111,386, 2015 WL 4716235, at *5-6 (Kan. App. 2015) (unpublished opinion), rev. denied
303 Kan. 1080 (2016). We join those cases and find no error. Burden fails to show that
the jury instruction as given was clearly erroneous.

Affirmed.