State v. White

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NOT DESIGNATED FOR PUBLICATION

No. 112,878

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KENNETH RAY WHITE,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; RICHARD ANDERSON, judge. Opinion filed March 25,
2016. Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, and Kyle Edelman, assistant district attorneys, Chadwick J. Taylor, district attorney,
and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., BRUNS and GARDNER, JJ.

Per Curiam: Kenneth Ray White appeals his conviction of criminal threat,
alleging various errors during his jury trial. Finding no reversible error, we affirm.

Procedural background

On November 11, 2013, Jennifer Alcorn was working the overnight shift at a
drugstore in Topeka. Sometime after midnight, Alcorn went outside to smoke a cigarette
and White joined her. While Alcorn and White were talking, Steven Harrison rode up on
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his bicycle, parked his bike, than started a heated discussion with White. Alcorn tried not
to pay attention to their conversation, but she could tell they were saying some "nasty
things" to each other. The only thing Alcorn could hear clearly was White saying to
Harrison, "I've got this for you. I've got this for you."

According to Harrison, White approached him with a knife in each hand and told
him that he had "this" for him when he came out. The knives were pointed in Harrison's
direction. Harrison went into the store and told a worker to call the police, but the worker
did not act quickly enough so Harrison called the police himself. When White saw that
Harrison was on the phone, he ran from the store. Harrison followed.

While in pursuit, Harrison flagged down a police officer, described White, and
told the officer what had happened. Officers soon found and arrested White at a nearby
apartment, searched White, and found two knives on him. The State charged White with
aggravated assault with a deadly weapon and criminal threat.

At the preliminary hearing, Harrison testified that he had been convicted of strong
arm robbery and burglary in Missouri. It was later discovered that Harrison had other
convictions in Missouri which he did not disclose during the preliminary hearing: theft;
possession of a controlled substance other than marijuana; and assault.

The State filed a motion in limine asking the district court to prohibit any
reference at trial to Harrison's crimes. The State conceded that the 2009 conviction for
theft was a crime involving false statement or dishonesty, so it was admissible. But it
argued the burglary conviction was inadmissible unless White could show the intent
underlying the burglary conviction was dishonesty. The State argued that evidence of
assault and drug possession were inadmissible under K.S.A. 60-421 and K.S.A. 60-422.
The district court held that Harrison's prior convictions for burglary/stealing/robbery
were admissible, but that his crimes of assault and drug possession were inadmissible.
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At trial, during cross-examination defense counsel asked Harrison about his
testimony at the preliminary hearing regarding his prior convictions. The State objected
several times to defense counsel's questions, and the district court sustained those
objections consistent with its prior rulings on the limine motion.

Harrison testified that while he recognized White as a panhandler who went by
"K.D.," he did not have personal relationship with White and had not worked with him.
White, on the other hand, testified that he had worked with Harrison at a temporary job
agency and that the two had gotten into a fight a few months earlier over a cellphone.
Whites admitted that he and Harrison had exchanged words outside the store, but he
denied having had knives in his hands and claimed that the knives had remained in his
pockets.

During direct examination, White also denied saying "I've got this for you," but he
could not remember exactly what he said to Harrison in the heat of the moment. White
assured the State during cross-examination that he did not have a hard time remembering
what he said and that if he says something he remembers it. He admitted he had
threatened Harrison, but he then again claimed he could not recall what he had said.

Ultimately, the jury found White not guilty of aggravated assault with a deadly
weapon and its lesser-included offense of assault but guilty of criminal threat. The district
court sentenced White to 14 months in prison, including 12 months of post-release
supervision. White Timely appeals.

I. Did the oath given to the jury violate White's right to due process?

White first argues that the oath given to the jury was improper because it required
the jurors to return a verdict and thus precluded the jury from disagreeing, being
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impartial, or being hung. The oath stated: "You do solemnly swear that you will try the
case conscientiously and return a verdict according the law and the evidence?"

The record on appeal does not indicate that White objected during trial to the jury's
oath. We must thus determine whether White has properly preserved this issue for appeal.

Generally, claims based on constitutional grounds cannot be raised for the first
time on appeal. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). Exceptions to
this rule do exist. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). But
Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. & Annot. 41) requires an appellant to
explain why such an issue should be heard for the first time on appeal. See State v.
Johnson, 293 Kan. 959, 964-65, 270 P.3d 1135 (2012) White has not acknowledged his
lack of preservation, addressed any of the exceptions, or explained why this court should
consider his claim. As a result, we decline to review this issue. See State v. Williams, 298
Kan. 1075, 1085, 319 P.3d 528 (2014) ("[W]e are unwilling to ignore [Rule 6.02(a)(5)]'s
plain language. Future litigants should consider this a warning and comply with Rule
6.02(a)(5) by explaining why an issue is properly before the court if it was not raised
below—or risk a ruling that an issue improperly briefed will be deemed waived or
abandoned.").

Further, Kansas caselaw requires a defendant to object to the jury's oath to
preserve the issue for appeal. In State v. Baldwin, 36 Kan. 1, 6, 12 P. 318 (1886), the
defendant argued, among other things, that the jury's oath "omitted the essential part of
requiring that it should [give] a true verdict . . . according to the law and the evidence." In
denying relief, the Supreme Court noted:

"A still more conclusive answer on this point is, that no objection was made to the form
of the oath when it was administered, or at any other time prior to its presentation in this
court. If there was any irregularity in this respect it should, and probably would, have
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been objected to at the time it occurred. . . . [I]f the form of the oath was defective the
attention of the court should have been called to it at the time the oath was taken, so that
it might have been corrected. A party cannot sit silently by and take the chances of
acquittal, and subsequently, when convicted, make objections to an irregularity in the
form of the oath." 36 Kan. at 7-8.

We find this case to be on point, as both Baldwin and this case challenge the oath's
language. See Baldwin, 36 Kan. at 6. White cannot challenge on appeal the oath given to
the jury because he did not object to it when it was given. See State v. Dwigans 51 Kan.
App. 2d 790, Syl. ¶ 2, 356 P.3d 412 (2015), petition for rev. filed September 1, 2015;
State v. Hagan, No. 112,096, 2015 WL 8175212, at *2 (Kan. App. 2015) (unpublished
opinion), petition for rev. filed January 1, 2016.

II. Did the district court err by prohibting White from impeaching Harrison?

White next argues that the district court improperly excluded admissible evidence.
White believes that he should have been allowed to address at trial Harrison's failure to
disclose all his convictions at the preliminary hearing because it went towards witness
credibility. He further argues that the exclusion of this evidence violated his
constitutional right to a fair trial and to present his defense.

The admission of evidence is generally governed by the rules of evidence. K.S.A.
60-420 allows any party, including the party calling the witness, to introduce extrinsic
evidence "concerning any conduct by him or her or any other matter relevant" for the
purpose of attacking the witness' credibility. However, K.S.A. 60-421 states that evidence
of a witness' conviction for a crime "not involving dishonesty or false statement shall be
inadmissible for the purpose of impairing his or her credibility." Character evidence
"other than honesty or veracity or their opposites" is also inadmissible. K.S.A. 60-422(c).
So is evidence of specific instances tending to prove a witness' character traits. K.S.A.
60-422(d). The district court's ruling on the motion in limine attempted to follow these
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statutes, generally permitting White to impeach Harrison with his crimes of dishonesty,
but precluding White's impeachment with his other crimes. On appeal, we review the
exclusion of evidence for an abuse of discretion. State v. Dixon, 289 Kan. 46, 69, 209
P.3d 675 (2009). A district court abuses its discretion when its action is "arbitrary,
fanciful, or unreasonable." State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002).

White contends that the district court erred in not applying a caselaw exception to
the rules of impeachment, as applied in State v. Davis, 237 Kan. 155, 160-61, 697 P.2d
1321 (1985). There, the district court prohibited the defense from impeaching a witness
but the Kansas Supreme Court, relying on State v. Nixon, 223 Kan. 788, 576 P.2d 691
(1978), and Dewey v. Funk, 211 Kan. 54, 505 P.2d 722 (1973), held that credibility was a
crucial factor in the case and the exclusion of the defense's proffered impeachment
evidence was error. 237 Kan. at 160-61. But there, unlike here, the jury heard the false
testimony; "the general rule for attacking a witness's credibility, K.S.A. 60-420,
authorized the admission of the rebuttal testimony" and "the proffered testimony was not
inadmissible under any subsection of K.S.A. 60-422." Davis, 237 Kan. at 161.

In State v. Macomber, 241 Kan. 154, 158, 734 P.2d 1148 (1987), the defense
sought to impeach a witness by cross-examining him about his truthfulness at the
preliminary hearing. Then, during cross-examination at trial, Fairchild was asked whether
he had ever lied on the stand before and Fairchild replied that he had not. A proffer was
then made, setting forth evidence that at the preliminary examination Fairchild had stated
he was not under the influence of drugs and never used drugs; yet, two witnesses would
testify Fairchild had in fact smoked marijuana on the way to the preliminary hearing and
was involved in various drug transactions at the time of the hearing. Relying on Davis,
Nixon, and Dewey, the Supreme Court found that the district court erred in excluding the
impeachment evidence. 241 Kan. at 158-59. The court concluded: "[T]he appellant here
introduced the evidence of Fairchild's drug use to show that Fairchild was not telling the
truth in this case. Since Fairchild's testimony regarding the appellant's admission of
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criminal activity was essential to the State's case, the trial court should have admitted the
evidence showing the witness had testified falsely." 241 Kan. at 159.

We have stated that "Macomber and Davis stand for the proposition that when the
credibility of a witness is 'a major factor in the outcome of the case,' it is error to exclude
the evidence that would test the credibility of the witness after the witness has testified to
some falsehood." Swarthout v. State, No. 93,133, 2005 WL 1138469, at *8 (Kan. App.
2005) (unpublished opinion) (citing Davis, 237 Kan. at 161). That is the proposition
White seeks to apply here.

Here, however, White does not contend that the jury heard Harrison testify to any
false statement, thus no evidence was presented for White to rebut. This distinguishes this
case from Davis, Macomber, and that line of cases.

Further, unlike in Davis, Macomber, State v. Beans, 247 Kan. 343, 800 P.2d 145
(1990), and other cases White relies on, witness credibility was not necessarily the sole or
crucial factor in the outcome of this case. Had the jury believed White's testimony, a
conviction would nonetheless have been warranted. When the State specifically asked
White if he had told Harrison that he something for him when he got out of the store,
White replied, "Okay. I said that. Yes, I did say that." Harrison had testified that White
told him that he had "this" for him, referring to the two knives. Harrison's account was
also supported by what he told the responding police officers. Alcorn also testified that
she heard White tell Harrison, "I've got this for you. I've got this for you." White's own
testimony on cross-examination confirmed that account. So the facts of this criminal
threat conviction do not present a scenario such as in Beans, a rape case where consent is
the sole disputed issue and a conviction rests solely on the jury's determination of each
party's credibility.

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Lastly, the impeaching evidence is not as clear here as it was in the Davis and
Macomber line of cases. Whether Harrison's failure to include all his prior convictions at
the preliminary hearing was a product of his intent to deceive or merely innocent
misrecollection has not been established. As the motion in limine stated, Harrison's
robbery conviction occurred when he was 17 years old, and he was 43 at the time of the
preliminary hearing. Thus the impeachment value of the excluded evidence was weaker
than in the cases White cites.

In summary, we do not believe White was denied a fair trial because of his
inability to impeach Harrison with the desired prior convictions. Nor do we believe that
the district court abused its discretion in excluding the desired evidence. Nonetheless, we
find this to be a close case.

Alternatively, in the event the district court erred in precluding the impeachment
evidence, we find that error to be harmless. Even if Harrison had been impeached by a
showing that he had intentionally omitted some of his prior convictions at the preliminary
hearing and his testimony had been totally discounted by the jury, White could have been
convicted based on his own trial testimony and Alcorn's, as summarized above. In light
of the other evidence, we find the exclusion of evidence concerning statements Harrison
made during the preliminary hearing did not affirmatively cause prejudice to White's
substantial rights and does not require reversal. See State v. Burnett, 300 Kan. 419, 434,
329 P.3d 1169 (2014). State v. Matson, 260 Kan. 366, 379, 921 P.2d 790 (1996); State v.
Johnson, 255 Kan. 140, 148, 871 P.2d 1246 (1994).

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III. Did the district court err by instructing the jury that a mistrial would be expensive
and inconvenient?

White next contends the district court gave an erroneous preliminary instruction to
the jury, citing State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2000). The instruction
stated in part:

"Any juror who violates these restrictions I have explained to you jeopardizes the fairness
of these proceedings, and a mistrial could result that would require the entire process to—
trial process to start over. As you can imagine, a mistrial is a tremendous expense and
inconvenience to the parties, the Court and the taxpayers."

White acknowledges that he did not object to the instruction when it was given.

A. Standard of Review

Because White did not object, the clear error standard of K.S.A. 2015 Supp. 22-
3414(3) applies. See State v. Williams, 295 Kan. 506, 510-12, 286 P.3d 195 (2012). To
determine whether an instruction was clearly erroneous, appellate courts employ a two-
step test. State v. Longoria, 301 Kan. 489, 512, 343 P.3d 1128 (2015). The first step is to
determine whether any error occurred by considering whether the instruction was legally
and factually appropriate, which is done with unlimited review. 301 Kan. at 512. The
second step is to consider reversibility. To reverse, appellate courts must be "'firmly
convicted that the jury would have reached a different verdict had the instruction error
not occurred.'" 301 Kan. at 512 (quoting Williams, 295 Kan. 506, Syl. ¶ 5). The party
claiming that the instruction was erroneous bears the burden of establishing prejudice.
301 Kan. at 512.

White argues that the clear error standard does not apply in this case, but he does
not explain what standard of review should apply other than to state that this issue should
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be reviewed on the merits. We find that the Supreme Court, when considering an
argument similar to White's, recently applied the clear error standard of K.S.A. 22-
3414(3). See State v. Tahah, 302 Kan. 783, 793, 358 P.3d 819 (2015), writ for cert. filed
December 30, 2015. We shall do the same.

B. Clear Error

The Kansas Supreme Court has recently upheld an instruction identical to the one
challenged here. In Tahah, the court found Salts distinguishable because the instruction in
that case was an Allen—type instruction, not a preliminary instruction. 302 Kan. at 794-
95. The Court also stated that an instruction regarding the cost of a mistrial is an
appropriate way for a district court to warn jurors about jury misconduct. 302 Kan. at
795. Ultimately, the Court held the cost of mistrial instruction was legally and factually
appropriate in both the civil and criminal contexts. 302 Kan. at 795.

We have consistently applied Tahah to find no error in cases dealing with this
issue. See, e.g., State v. Hachmeister, No. 112,260, 2015 WL 8175905, at *8-10 (Kan.
App. 2015) (unpublished opinion), petition for rev. filed December 12, 2015; State v.
Wasylk, No. 112,128, 2015 WL 6833835, at *12-13 (Kan. App. 2015) (unpublished
opinion), petition for rev. filed December 4, 2015; State v. Davis, No. 112,204, 2015 WL
6443466, at *1-4 (Kan. App. 2015) (unpublished opinion), petition for rev. filed
November 18, 2015. White has not explained how this case is distinguishable from
Tahah, and we see no distinction.

"The Court of Appeals is duty bound to follow Kansas Supreme Court precedent
absent some indication the Supreme Court is departing from its previous position." State
v. Ruiz, 51 Kan. App. 2d 212, 233, 343 P.3d 544 (2015). We have no indication the
Supreme Court is departing from Tahah, so we find the district court did not err by giving
the challenged instruction.
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IV. Did the State commit prosecutorial misconduct?

Finally, White argues that the State's comments at trial were improper because the
State impermissibly vouched for the credibility of a State's witness and improperly
shifted the burden of proof to White.

White has not preserved any claim of prosecutorial misconduct relating to the
State's cross-examination of him. Although White mentions the State's comments and
questions during its cross-examination of him, he makes no argument about them in his
brief. We therefore find that White has waived any prosecutorial misconduct claim
regarding the State's comments during cross-examination. See State v. Holman, 295 Kan.
116, 142, 284 P.3d 251 (2012) (noting that an issue not argued and raised only
incidentally is deemed abandoned).

White has preserved, however, his contention that the following comments, made
during closing argument and rebuttal, constitute prosecutorial misconduct:

"[Harrison] has no bias."

"[I]t's no reason to believe that Mr. Harrison was not being honest and truthful when he
gave that testimony."

"Mr. Harrison's testimony is backed up, it's supported by evidence. His testimony is
credible on that basis and his testimony established that Mr. White committed these
crimes."

"But more importantly, this question is about credibility, and like I was saying before,
first of all, what would be Mr. Harrison's reasons to just completely make up this story?"

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"And apparently, there are all these witnesses who said, yeah, I knew them when they
worked together at Labor Pros and I was the one that saw Mr. Harrison punch Mr. White
in the face, but you never heard any of that evidence."

"Now, the State is—the defendant does not have the burden of proof. State has the burden
of proof."

A. Standard of Review

When questions of prosecutorial misconduct are raised, we apply a standard of
review that consists of a two-step analysis. State v. Crawford, 300 Kan. 740, 744, 334
P.3d 311 (2014). First, we determine whether the comments constitute misconduct. 300
Kan. at 744. To be misconduct, the comments must fall "outside the wide latitude
allowed in discussing the evidence." 300 Kan. at 744. If we find misconduct, we decide
whether that misconduct compels reversal. 300 Kan. at 744-45.

B. Vouching for Witness' Credibility

Prosecutors should generally not provide their personal opinions on a witness'
credibility. State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010). The reason is that such
opinions are "unsworn, unchecked testimony, not commentary on the evidence of the
case." State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). But counsel may make
comments that draw reasonable inferences from the evidence. Stone, 291 Kan. at 19. So
prosecutors may "'explain[] to juries what they should look for in assessing witness
credibility, especially when the defense has attacked the credibility of the State's
witnesses.'" 291 Kan. at 19 (quoting State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755
[2008]). A witness' credibility is ultimately determined by the jury. State v. Davis, 275
Kan. 107, 121, 61 P.3d 701 (2003).

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Having reviewed the challenged comments in context, we find the State did not
provide any personal opinion on the Harrison's credibility. Instead, it discussed the
evidence and argued, that based on the evidence, Harrison's testimony was credible. For
instance, the State argued: "Mr. Harrison's testimony is backed up, it's supported by the
evidence. His testimony on that basis is credible and his testimony established that Mr.
White committed these crimes." Although the State's comments might seem suspicious
when isolated, prosecutors' statements must be viewed in context. State v. Duong, 292
Kan. 824, 831, 257 P.3d 309 (2011). We find the State's comments in this case were
"within the context of an overarching evidence-based argument" that Harrison's
testimony was credible. See 292 Kan. at 832.

We have considered State v. Donaldson, 279 Kan. 694, 709, 112 P.3d 99 (2005),
and State v. Johnson, No. 92,951, 2006 WL 3589778 (Kan. App. 2006) (unpublished
opinion), rev. denied 283 Kan. 932 (2007). In both cases, the prosecution made
comments about police detectives who had testified, stating that they had no reason to lie.
Those statements were found to be improper attempts to bolster the State's witness.
Donaldson 279 Kan. at 709; Johnson, 2006 WL 3589778, at *18-20. White analogizes
the comments made in Donaldson and Johnson to the State's comment in this case that
rhetorically asked the jury what reason Harrison's would have to make up his story.

But we find our case distinguishable. First, the State's comment that White refers
to was brief, unlike the statements in Donaldson and Johnson. See 279 Kan. at 709; 2006
WL 3589778, at *18. Second, in Donaldson, unlike here, the Supreme Court found that
statements constituted misconduct partly because the prosecution told the jury the result
of previous trials. 279 Kan. at 709. Third, prosecutors may ask rhetorical questions to
probe "whether there was any motivation for the [witness] to lie." State v. Ortega, 300
Kan. 761, 777, 335 P.3d 93 (2014). We view the State's question here as such a question.
Because this case is distinguishable from Donaldson and Johnson and because the State's
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comments were made within the context of an evidence-based argument, the comments
did not fall outside the wide latitude given to the State and were not improper.

C. Shifting the Burden of Proof

White's claim that the prosecutor improperly shifted the burden of proof is based
on the State's asking the jury if the defense had presented evidence in support of its
argument that Harrison and White already knew each other.

The prosecution may not "attempt to shift the burden of proof to the defendant or
to misstate the legal standard of the burden of proof." Stone, 291 Kan. at 18. Prosecutors
are granted considerable latitude in discussing the defense's weaknesses. 291 Kan. at 18.
For instance, the prosecution may point out "a lack of evidence to support a defense or to
corroborate a defendant's argument regarding holes in the State's case." State v. Williams,
299 Kan. 911, 940, 329 P.3d 400 (2014). But the prosecution may not ask rhetorical
questions concerning whether any evidence was presented that the crime did not occur.
See State v. Tosh, 278 Kan. 83, 90-92, 91 P.3d 1204 (2004).

Having reviewed the record, we find that the State did not shift the burden of proof
to White. The defense's theory was that Harrison and White were already acquainted and
that Harrison wanted to get White in trouble. The State merely mentioned that White had
not provided any evidence supporting his assertion that two knew each other before the
crime occurred. The statement "did not call upon the defense to disprove the occurrence
of the crime." See Williams, 299 Kan. at 941 (citing Tosh, 278 Kan. at 92). The State's
comment also came only during rebuttal, after the defense had argued that Harrison and
White previously knew each other. Further, the State informed the jury that it had the
burden of proof and that White did not. The court properly instructed the jury on who
bore the burden of proof, mitigating any misconduct. See State v. Crosby, 293 Kan. 121,
137, 262 P.3d 285 (2011). Thus White's reliance on Tosh is misplaced.
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Finally, the State did not brand White or defense counsel as liars. The prosecution
may point out "a lack of evidence to support a defense or to corroborate a defendant's
argument regarding holes in the State's case." Williams, 299 Kan. at 940. Doing so does
not mean the prosecution is implying that the defendant or defense counsel are liars. For
that reason and for the reasons already discussed, we find the State did not improperly
shift the burden of proof to White, and its comments made during closing argument and
rebuttal did not constitute prosecutorial misconduct.

Affirmed.