State v. Odom

1

NOT DESIGNATED FOR PUBLICATION

No. 117,263

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRAVIS P. ODOM,
Appellant.


MEMORANDUM OPINION

Appeal from Cherokee District Court; OLIVER KENT LYNCH, judge. Opinion filed April 20, 2018.
Convictions affirmed, sentences vacated, and remanded with directions.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, Amanda G. Voth, assistant solicitor general, and
Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., GARDNER, J., and BURGESS, S.J.

PER CURIAM: Travis Odom appeals his convictions for rape and aggravated
indecent liberties with a child in Cherokee County District Court. Odom contends that the
district court deprived him of his right to due process by not recalling the jury to
investigate allegations of juror misconduct. He also claims that the district court erred in
sentencing him to lifetime postrelease supervision. This case is affirmed in part, reversed
in part, and remanded with directions.


2

FACTUAL AND PROCEDURAL BACKGROUND

Though Odom's brief provides a limited sketch of the underlying facts, the
circumstances prompting the State to charge Odom with four counts of rape and one
count of aggravated indecent liberties with a child are immaterial for purposes of
resolving Odom's issues on appeal. This court need only to address the procedural history
of the case to provide a background for the legal challenges Odom raises on appeal.

The State originally charged Odom with three counts each of rape and aggravated
indecent liberties with a child but later amended the charges to four counts of rape and
two counts of aggravated indecent liberties with a child. The State then voluntarily
moved to dismiss without prejudice one of the counts of aggravated indecent liberties
with a child, which the district court granted. Following a four-day jury trial, beginning
on September 9, 2014, the State again amended the charges to conform to the evidence
presented at trial. The amendment did not change the number or types of charges against
Odom.

The jury convicted Odom of all five remaining counts. Odom requested a poll of
the jury, and each juror affirmed that the verdicts reflected the way that he or she
concluded the case should be decided.

Several months after trial but before sentencing, Odom filed a letter with the
district court generally alleging ineffective assistance of counsel but also indicating that
the jury was not impartial because some unidentified jurors had expressed set opinions
regarding his case. Odom's counsel followed up this letter with a motion for judgment of
acquittal or new trial, alleging among other things that certain jurors failed to follow the
instructions given by the court and failed to decide the case on the evidence.


3

"In support of this motion, [Odom] states:
. . . .
"4. In post trial communications with jurors, they indicated they did not believe
any of the testimony of the alleged victim.
"5. Jurors indicated the only testimony believed was that of Defendant's son, who
testified nothing happened.
"6. Jurors indicated that based on the belief of the testimony of Defendant's son,
there was not proof beyond a reasonable doubt to convict Defendant of the charges in the
case.
"7. Jurors stated they found Defendant guilty because 'he did not molest the little
girl, but he was guilty of something and we should err on the [sic] caution.'
"8. This decision was based on multiple statements from jurors who said 'you
know he did something or he would not be here.'
"9. The finding of the jury is not the standard required in a criminal jury trial and
is not consistent with the instructions given to this jury."

On March 30, 2015, the district court held a nonevidentiary hearing on Odom's
motion. After both sides had presented arguments, the district court requested
clarification about the number of jurors at issue. The response of Odom's counsel was not
entirely clear. He indicated that all of the information contained in the motion came from
one juror but that the quoted material reflected comments by another male juror to the
reporting juror. It is unclear whether the unquoted material represented views expressed
by more than one juror. However, Odom's appellate brief indicates that the statements
regarding the relative credibility of the victim and Odom's son were the views of a
particular juror, R.S. Odom's brief clarified that the quoted statements were made by
another, unidentified male juror. The district court ordered Odom's counsel to submit the
name of this unidentified juror in a pleading filed with the court under seal.

The following day, the district court issued a letter decision. After noting that
defense counsel did not disclose the name of the juror as directed, the court denied the
motion for judgment of acquittal/new trial, essentially adopting the State's response to the
4

motion for judgment of acquittal/new trial. The district court further directed the State to
prepare a journal entry. The record does not contain a separate journal entry on the ruling,
but the order was journalized in the district court's journal entry of sentencing.

At sentencing on December 5, 2016, the district court imposed life imprisonment
without the possibility of parole for 25 years (the hard 25) for each of Odom's five
convictions. The district court ran two of the rape convictions consecutively for a
controlling term of life imprisonment without possibility of parole for 50 years. For each
of the five convictions, the court also imposed lifetime postrelease supervision.

Odom filed a timely notice of appeal from sentencing.

DID THE DISTRICT COURT ABUSE ITS DISCRETION IN REFUSING TO RECALL THE JURY TO
INVESTIGATE ALLEGATIONS OF JUROR MISCONDUCT?

Odom first contends that the district court improperly denied his request to recall
the jury to question jurors about improper comments during deliberations. These
comments allegedly indicated that certain jurors ignored the district court's instructions to
decide the case on the evidence and the law. Odom claims he was found guilty not for
what he was charged with doing in this case but for some unspecified wrongdoing that he
likely committed.

Appellate review of a district court's decision on a request to recall the jury is
limited to an abuse of discretion. State v. Smith-Parker, 301 Kan. 132, 165, 340 P.3d 485
(2014) (citing State v. Jenkins, 269 Kan. 334, 338, 2 P.3d 769 [2000]). Judicial discretion
is abused when the action taken by the district court is based upon an erroneous legal
decision, is based upon findings of fact which are unsupported by the evidence, or is
otherwise unreasonable. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). In
the context of denying a motion to recall a jury, a district court abuses its discretion if the
5

court fails to articulate its reasons for its decision. Smith-Parker, 301 Kan. at 165 (citing
State v. Kirkpatrick, 286 Kan. 329, 351, 184 P.3d 247 [2008], overruled on other grounds
by State v. Sampson, 297 Kan. 288, 301 P.3d 276 [2013]).

Odom did not present a formal, written request to recall the jury. In his motion for
judgment of acquittal/new trial, he argued the alleged juror misconduct as a basis for
acquittal or new trial. However, at the hearing on his motion, Odom's counsel clearly
sought a recall of the jury. In denying the request for a recall, the district court essentially
relied on the reasoning provided by the State's response, but also noted that Odom had
not submitted the name of the other juror under seal as directed by the court. The State's
response generally argued that recalling the jury was inappropriate since the allegations
of misconduct impinged upon the thought processes of particular jurors during
deliberation.

"A juror may be called to testify at a hearing on a posttrial motion only if the
court—after a hearing to determine whether all or any jurors should be called—grants a
motion to call the juror. If a juror is called, informal means should be used to obtain the
juror's attendance at the hearing, rather than subpoena." Kansas Supreme Court Rule 181
(2018 Kan. S. Ct. R. 223).

A recall of one or more jurors after a verdict has been rendered is undertaken only
for cause, and the burden is on the party requesting recall to demonstrate the necessity of
a recall. Smith-Parker, 301 Kan. at 166 (citing State v. Ruebke, 240 Kan. 493, 513, 731
P.2d 842 [1987]). Generally speaking, a district court should recall the jury if the court is
unable to determine that the evidence in favor of the prevailing party, in this case the
State, is substantial or that the jury misconduct did not relate to a material issue. See
Smith-Parker, 301 Kan. at 166 (citing Saucedo v. Winger, 252 Kan. 718, Syl. ¶ 3, 850
P.2d 908 [1993]). Arguably, the State cannot satisfy either of these exceptions.
Nevertheless, a district court's inquiry upon recall is necessarily limited.

6

Under English common law, a jury verdict could not be impeached by a jury. The
rule, commonly known as the Mansfield rule, prohibited jurors from testifying about
subjective mental processes or about events occurring during deliberations. The no-
impeachment rule was adopted in the United States with some modification. Some
jurisdictions adopted a rule that prevented jurors from testifying about their own
subjective beliefs, thoughts, or motives but allowed testimony about objective facts and
events. The more commonly adopted rule follows the federal rule, which closely follows
the Mansfield rule and prohibits inquiry into "'any statement made or incident that
occurred during the jury's deliberations; the effect of anything on that juror's or another
juror's vote; or any juror's mental processes concerning the verdict or indictment.'" Pena-
Rodriguez v. Colorado, __ U.S. __, 137 S. Ct. 855, 863-65, 197 L. Ed. 2d 107 (2017)
(quoting Federal Rule of Civil Procedure 606[b]). Kansas has adopted no-impeachment
rules similar to the federal rule.

"Upon an inquiry as to the validity of a verdict or an indictment no evidence shall
be received to show the effect of any statement, conduct, event or condition upon the
mind of a juror as influencing him or her to assent to or dissent from the verdict or
indictment or concerning the mental processes by which it was determined." K.S.A. 60-
441.

"This article shall not be construed to (a) exempt a juror from testifying as a
witness to conditions or occurrences either within or outside of the jury room having a
material bearing on the validity of the verdict or the indictment, except as expressly
limited by K.S.A. 60-441. . . ." K.S.A. 60-444(a).

Accordingly, a court's inquiry after recalling a jury is limited to extrinsic matters
of physical facts, conditions, or occurrences of juror misconduct. See State v. Franklin,
264 Kan. 496, 503-04, 958 P.2d 611 (1998) ("A juror may not impeach his or her verdict
on any ground inherent in the verdict itself or divulge what considerations influenced him
or her in arriving at the verdict. Inquiry may be made into the extrinsic matters of
7

physical facts, conditions, or occurrences of juror misconduct, either within or without
the jury room, which were material to the issues being determined."). "Extrinsic" means
information outside of the normal deliberation process. See State v. Boyles, 567 N.W.2d
856, 859 (S.D. 1997).

"The difference between extraneous and intrinsic information was explained in [State v.
Wilkins, 536 N.W.2d 97 (S.D. 1995)]. Intrinsic information, about which testimony is
prohibited, involves '(1) the effect such extraneous information had upon their minds; (2)
statements or discussions which took place during deliberations; or (3) evidence of
"intimidation or harassment of one juror by another, or other intra-jury influences."' 536
N.W.2d at 99 (citation omitted). Extrinsic information may include 'media publicity,
conversations between jurors and non-jurors, and evidence not admitted by the court.'"
Boyles, 567 N.W.2d at 859.

The juror statements upon which Odom relied in seeking a judgment of acquittal
or a new trial involve statements revealing the thought processes of at least two jurors.
These statements therefore appear to fall within the prohibition expressed in K.S.A. 60-
441. Odom does not argue that the statements constitute extrinsic evidence but essentially
concedes that the statements are prohibited by K.S.A. 60-441.

Instead, Odom contends that the Sixth Amendment right to a fair trial provides an
exception to the no-impeachment rule of K.S.A. 60-441. Odom did not make this
argument to the district court. Generally, constitutional issues are not properly raised for
the first time on appeal. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015).
Nevertheless, as Odom contends, an appellate court may properly consider a
constitutional issue raised for the first time on appeal if (1) the newly asserted theory
involves only a question of law arising on approved or admitted facts and is finally
determinative of the case; (2) consideration of the theory is necessary to serve the ends of
justice or to prevent denial of fundamental rights; or (3) the judgment of the trial court
may be upheld even though it assigned an incorrect legal theory to support its decision.
8

State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Odom argues the
applicability of the second exception because the juror misconduct deprived Odom of his
due process right to the presumption of innocence and an impartial jury.

Whether a constitutional exception to the no-impeachment rule exists under these
circumstances may be argued on the basis of two of the recognized exceptions for raising
an issue for the first time on appeal: the issue is a question of law on settled facts and the
issue involves fundamental rights. The right to a jury trial by an impartial jury and a
conviction only upon proof beyond a reasonable doubt are pillars of American
jurisprudence. See Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S. Ct. 2078, 124 L. Ed.
2d 182 (1993) ("[T]he jury verdict required by the Sixth Amendment is a jury verdict of
guilty beyond a reasonable doubt."); Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S. Ct.
2222, 119 L. Ed. 2d 492 (1992) ("The Constitution, after all, does not dictate a catechism
for voir dire, but only that the defendant be afforded an impartial jury."). Accordingly,
this issue can be considered for the first time on appeal.

A constitutional exception to the no-impeachment rule has been recognized by the
United States Supreme Court in several cases. See Warger v. Shauers, 574 U.S. __, 135
S. Ct. 521, 529, 190 L. Ed. 2d 422 (2014); Tanner v. United States, 483 U.S. 107, 126-27,
107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987); McDonald v. Pless, 238 U.S. 264, 269, 35 S. Ct.
783, 59 L. Ed. 1300 (1915); United States v. Reid, 53 U.S. 361, 366, 13 L. Ed. 1023
(1852). However, a constitutional exception has been actually analyzed by the Court in
only three cases, and the Court has found a Sixth Amendment exception to the no-
impeachment rule in only one of those cases. See Pena-Rodriguez, 137 S. Ct. at 865-67.
That case involved racially discriminatory comments in deliberations. Though the Court
held that the Sixth Amendment right to due process provided the constitutional basis for
an exception to the no-impeachment rule, its analysis focused primarily the judiciary's
need to purge systemically all vestiges of racism from the administration of justice. Pena-
Rodriguez, 137 S. Ct. at 867-68.
9

"Racial bias of the kind alleged in this case differs in critical ways from the
compromise verdict in McDonald, the drug and alcohol abuse in Tanner, or the pro-
defendant bias in Warger. The behavior in those cases is troubling and unacceptable, but
each involved anomalous behavior from a single jury—or juror—gone off course. Jurors
are presumed to follow their oath, [citation omitted], and neither history nor common
experience show that the jury system is rife with mischief of these or similar kinds. To
attempt to rid the jury of every irregularity of this sort would be to expose it to
unrelenting scrutiny. 'It is not at all clear . . . that the jury system could survive such
efforts to perfect it.' Tanner, 483 U.S. at 120.
"The same cannot be said about racial bias, a familiar and recurring evil that, if
left unaddressed, would risk systemic injury to the administration of justice. This Court's
decisions demonstrate that racial bias implicates unique historical, constitutional, and
institutional concerns. An effort to address the most grave and serious statements of racial
bias is not an effort to perfect the jury but to ensure that our legal system remains capable
of coming ever closer to the promise of equal treatment under the law that is so central to
a functioning democracy." Pena-Rodriguez, 137 S. Ct. at 868.

The statements challenged by Odom as juror misconduct encompass the thought
processes—inappropriate as they may be—of individual jurors, not a systemic
breakdown of the jury process as a whole. Consequently, the juror misconduct in this
case more closely resembles the anomalous behavior at issue in Tanner and McDonald
than the systemic problem of racism addressed in Pena-Rodriguez. There is no evidence
in this record that juries routinely disregard the district court's instructions to decide the
case on the evidence. In fact, there is no evidence in this record that 10 of the 12 jurors
did not decide the case on the evidence. Constitutionally speaking, a verdict need not be
unanimous. See State v. Voyles, 284 Kan. 239, 250-51, 160 P.3d 794 (2007) (citing
Johnson v. Lousiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 [1972]; Apodaca v.
Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 [1972]).

The statements alleged by Odom constitute two distinct challenges: (1) Juror
R.S.'s statements attacking his own verdict on grounds that he allegedly did not believe
10

the victim's statements and instead believed Odom's son's testimony, which generally
supported Odom, and (2) statements made by some unidentified male juror suggesting
that the juror convicted Odom because of some vague impression of wrongdoing rather
than proof beyond a reasonable doubt of the charged crimes.

The first set of statements constitute a juror's attack on his own verdict. Federal
courts considering similar challenges have rejected such attacks under the no-
impeachment rule. See United States v. Vannelli, 595 F.2d 402, 407 (8th Cir. 1979)
(upholding denial of motion for new trial based upon juror statement that indicated she
made the wrong decision); United States v. Miller, 806 F.2d 223, 225 (10th Cir. 1986)
(no impeachment of verdict with juror's own statement that she misunderstood the
instructions). Courts also do not normally entertain evidence of a coerced verdict unless
the evidence includes threats of violence. See Anderson v. Miller, 346 F.3d 315, 327 (2d
Cir. 2003) ("It is certainly far from unreasonable to conclude that credible allegations of
threats of violence leveled by one juror by another would fall within this exception.");
Jacobson v. Henderson, 765 F.2d 12, 14-15 (2d Cir. 1985) (upholding denial of relief
based on juror affidavit that another juror screamed, hysterically cried, banged his fists,
called other jurors names, and used obscene language to coerce a verdict because jurors
had ample opportunity to bring misconduct to the court's attention before the verdict).
The record provides no indication if or why R.S. felt compelled to convict Odom and
certainly contains no indication of threats against him. It may be that R.S. simply has
second thoughts about his verdict. This does not provide a proper basis for impeaching a
verdict. Miller, 806 F.2d at 225.

"The most difficult decisions that a Court can make require it to balance the need
for finality and procedural regularity against the possibility, however faint, of injustice.
Any effort to draw a proper line between the two will never be perfect, nor will it be
satisfactory to all involved. Nevertheless, the Court's duty is to ensure that one side of the
balance does not swallow the other. In the absence of clerical error in entering a verdict
into a verdict form, or improprieties of the nature described in Rule 606, any rule that a
11

juror could impeach a sworn statement she made in open court agreeing with a verdict
would open the door to the overturning of verdicts based on second thoughts, changed
minds, improper influence, and hindsight. There was be no principled boundaries for the
application of such a rule, and no verdict would be truly final. Jury deliberations would
become the fodder for fishing expeditions launched by those disappointed with the
unfavorable verdicts." Imperial Trading Co., Inc. v. Travelers Property Cas. Co. of
America, No. 06-4262, 2009 WL 2922307, at *7 (E.D. La. 2009).

The jury was polled in this case. R.S. did not express any reservation in the
verdicts. See United States v. Weiner, 578 F.2d 757, 764 (9th Cir. 1978) (upholding
denial of a new trial based on statements of juror that he voted guilty "with reservation,"
but did not indicate these reservations when the jury was polled). His discomfort with the
verdict after the fact does not provide a constitutional basis for undermining the finality
of the verdict.

The other set of statements suffer from a lack of proof. The district court was not
presented with R.S.'s sworn statement that the unidentified juror made the statements
alleged. Instead, the district court was presented with the allegations of Odom's attorney
that R.S. stated that this unidentified juror made the inappropriate comments. R.S. could
not be bothered to attend the hearing and provide testimony to what he heard. And Odom
did not provide the name of this unidentified juror as directed by the district court.

Assuming that the unidentified juror made the comments in question, there is
nothing in the record to indicate what that juror’s ultimate thought process was in making
the decision to vote guilty. Even if the district court took the unidentified juror's
comments at face value, the comments indicate only that one juror misapplied the
pertinent law and facts of the case in arriving at a verdict. One juror's understanding of
the thought processes of another juror is not a sufficient basis to impeach a verdict. See
United States v. D'Angelo, 598 F.2d 1002, 1003 (5th Cir. 1979).

12

"[T]he no-impeachment rule has substantial merit. It promotes full and vigorous
discussion by providing jurors with considerable assurance that after being discharged
they will not be summoned to recount their deliberations, and they will not otherwise be
harassed or annoyed by litigants seeking to challenge the verdict. The rule gives stability
and finality to verdicts." Pena-Rodriguez, 137 S. Ct. at 865.

In Tanner, the United States Supreme Court recognized that issues of misconduct
arising during deliberations may be brought to the court's attention before the jury arrives
at a verdict. 483 U.S. at 127 (citing Lee v. United States, 454 A.2d 770 [D.C. App. 1982],
cert. denied sub nom. McIlwain v. United States, 464 U.S. 972, 104 S. Ct. 409, 78 L. Ed.
2d 349 [1983]); see also Warger, 135 S. Ct. at 529 ("Even if jurors lie in voir dire in a
way that conceals bias, juror impartiality is adequately assured by the parties' ability to
bring to the court's attention any evidence of bias before the verdict is rendered, and to
employ nonjuror evidence even after the verdict is rendered."); Jacobson, 765 F.2d at 14-
15 (refusing to consider posttrial affidavits of jurors alleging misconduct in part because
jurors had ample opportunity to bring misconduct to the attention of the court during
deliberations). There is no reason why R.S. could not have sent a message to the district
court during deliberations indicating discomfort with statements by other jurors who
seemed to be ignoring the evidence and/or the court's instructions.

This case does not demonstrate the exceptional circumstances necessary to
circumvent the operation of K.S.A. 60-441 and undermine the finality of the verdict on
constitutional grounds. Because the situation does not support a Sixth Amendment
exception to the no-impeachment rule of K.S.A. 60-441, the allegations of juror
misconduct raised by Odom's counsel in the motion for judgment of acquittal/new trial,
even if affirmatively established by a recall of the jury, could not properly be received by
the district court. As a result, the district court did not abuse its discretion in refusing to
conduct a recall of the jury.


13

DID THE DISTRICT COURT ILLEGALLY SENTENCE ODOM
TO LIFETIME POSTRELEASE SUPERVISION?

Next Odom contends that the district court erred in sentencing him to lifetime
postrelease supervision. As Odom notes in his brief, he did not raise the issue at
sentencing, but the court is not precluded from considering the issue because an illegal
sentence may be corrected at any time, including the first time on appeal. State v. Fisher,
304 Kan. 242, 263-64, 373 P.3d 781 (2016).

An illegal sentence within the meaning of K.S.A. 2017 Supp. 22-3504(1)
encompasses a sentence imposed by a court without jurisdiction, a sentence that fails to
conform to the applicable statutory provisions (either in character or in terms of the
authorized punishment), or a sentence that is ambiguous with respect to the time and
manner in which it is to be served. State v. Gray, 303 Kan. 1011, 1014, 368 P.3d 1113
(2016). In the present case, Odom contends that the imposition of lifetime postrelease
supervision fails to conform to the applicable sentencing statutes. Interpretation and
application of a statute is a question of law subject to plenary appellate review. See State
v. Nguyen, 304 Kan. 420, 422, 372 P.3d 1142 (2016).

K.S.A. 2017 Supp. 22-3717 governs the imposition of both parole and postrelease
supervision. K.S.A. 2017 Supp. 22-3717(b)(6) directs that an inmate sentenced under
K.S.A. 21-6627 (Jessica's Law) must serve the mandatory prison term without a
reduction for good time credit before becoming eligible for parole. K.S.A. 2017 Supp.
22-3717(u) provides:

"An inmate sentenced to imprisonment pursuant to K.S.A. 21-4643, prior to its
repeal, or K.S.A. 2017 Supp. 21-6627, and amendments thereto, for crimes committed on
or after July 1, 2006, shall be placed on parole for life and shall not be discharged from
supervision by the prison review board. When the board orders the parole of an inmate
14

pursuant to this subsection, the board shall order as a condition of parole that the inmate
be electronically monitored for the duration of the inmate's natural life."

Clearly, the proper sentence required mandatory lifetime parole rather than
lifetime postrelease supervision. The State suggests that the district court vacate this
portion of the sentence, but the mandatory rather than discretionary nature of the
imposition of parole does not permit this remedy. Moreover, contrary to the State's
suggestion, the district court may not simply change the sentence to lifetime parole
instead of lifetime postrelease supervision, even if that is what the district court
subjectively intended because parole and postrelease supervision are not legally
synonymous. See State v. Cash, 293 Kan. 326, 330, 263 P.3d 786 (2011); State v.
Ballard, 289 Kan. 1000, 1014, 218 P.3d 432 (2009). Sentencing is a critical stage of the
criminal prosecution and requires the presence of the criminal defendant. See K.S.A.
2017 Supp. 22-3405; State v. Hall, 298 Kan. 978, 987, 319 P.3d 506 (2014) ("[A]ny
completion of sentencing must take place in the defendant's presence in open court."). As
a result, this court may not simply vacate the part of the district court's sentencing order
imposing lifetime postrelease supervision on each of Odom's convictions; the case must
be remanded to the district court for resentencing.

Convictions affirmed, sentences vacated, and remanded with directions.