Bell v. State

1

No. 104,429

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ERIC L. BELL,
Appellant,

v.

STATE OF KANSAS,
Appellee.


SYLLABUS BY THE COURT

1.
The district court should use two steps in analyzing a defendant's motion for new
trial based on juror misconduct. First, the defendant must show juror misconduct. Second,
if the defendant makes that showing, then the State must show beyond a reasonable doubt
that the error did not affect the trial's outcome.

2.
An appellate court reviews the denial of a motion for new trial for abuse of
discretion. Judicial discretion is abused when (1) the decision is so arbitrary that no
reasonable person would agree with it; (2) the decision is based on an underlying legal
error; or (3) the decision is based on an underlying factual error.

3.
A new trial is required where a juror deliberately fails to provide an honest answer
to a material question during jury selection and a truthful response would have provided a
valid basis to challenge the juror for cause. In such cases, no showing of actual bias of the
juror is required.

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4.
On the facts of this case, in which a juror deliberately failed to say that a rape
charge was pending against him and one of the crimes charged against the defendant was
rape, the district court abused its discretion when it denied the defendant's motion for new
trial.

Appeal from Sedgwick District Court; TIMOTHY H. HENDERSON, judge. Opinion filed September
16, 2011. Reversed and remanded with directions.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., HILL and LEBEN, JJ.

LEBEN, J.: A member of the jury that convicted Eric L. Bell of rape had a rape
charge pending against him when he was selected to serve on the jury—a fact that the
juror intentionally concealed when all jurors were asked whether any had "ever been
arrested before, for anything." Bell filed a habeas-corpus motion under K.S.A. 60-1507
seeking a new trial, but the district court denied it because Bell hadn't shown specifically
that this juror acted differently because of the pending rape charge against him.

But when a juror intentionally responds falsely to a question during jury selection
and the subject matter of the question is closely connected to that of the trial, Kansas
courts have ordered a new trial. And the United States Supreme Court has said that a new
trial should be ordered when a juror has intentionally lied about a matter that would have
justified exclusion of that juror for cause. The case before us is one of the exceptional
ones in which a new trial must be ordered even though there is no showing the dishonest
juror actually affected the trial's outcome.
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The underlying facts are not disputed. One of the potential jurors, Greg Black, had
a rape charge pending against him in another Kansas county when Bell's jury was
selected. During jury selection, the district attorney asked all prospective jurors to
disclose any arrests: "Has anybody ever been arrested before, for anything? It could be
outstanding parking tickets that went to warrant, it could be a DUI, it could be something
stupid when you were young, it could be something worse. Anybody been arrested
before?" Black didn't respond, although several other jurors did. After the prosecutor had
talked with those jurors, he followed up, "[H]ave I talked to everyone who's ever been
arrested for anything?" Black again made no response. Since Bell was charged with rape,
the prosecutor asked another question specifically seeking information about whether any
potential juror knew anyone in their "close circle of family or friends" who had "ever
been accused of a crime like this." Again, Black made no response. After Bell's trial,
Black was tried and convicted of attempted rape. See State v. Black, No. 93,926, 2008
WL 2369789 (Kan. App. 2008) (unpublished opinion).

Bell asked the district court to grant a new trial because Black had served on Bell's
jury under these conditions. The parties' arguments before the district court and on appeal
center mainly on whether Bell must show actual prejudice from Black having sat on the
jury.

Bell relies primarily on a 1947 Kansas Supreme Court case, Kerby v. Hiesterman,
162 Kan. 490, 178 P.2d 194 (1947). In it, the court set forth a rule that when a
prospective juror answers falsely to a question during jury selection and is accepted as a
juror, "a party deceived thereby is entitled to a new trial even if the juror's possible
prejudice is not shown to have caused an unjust verdict." 162 Kan. 490, Syl. ¶ 3. Bell
seeks to apply this broad ruling in which no prejudice need be shown. If that rule is
applied, Bell argues that he is entitled to a new trial because juror Black gave false
answers during jury selection.
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The State relies upon newer cases in which the Kansas Supreme Court has
explicitly stated a prejudice requirement. In both State v. Mathis, 281 Kan. 99, Syl. ¶ 2,
130 P.3d 14 (2006), and State v. Jenkins, 269 Kan. 334, Syl. ¶ 5, 2 P.3d 769 (2000), cited
by the State, the Kansas Supreme Court has said that a new trial is required when a
defendant shows both jury misconduct and that the misconduct substantially prejudiced
the defendant's right to a fair trial. In denying Bell's motion for new trial, the district court
relied upon this rule and the absence of specific evidence that Black's participation on the
jury had somehow affected the trial's outcome.

Before we discuss the parties' positions on the legal issue before us, we must first
review the standards under which we should consider the district court's ruling, which
denied Bell's motion. The Kansas Supreme Court recently addressed the standards an
appellate court should use to review a trial court decision denying a motion for a mistrial
in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011). The trial court must engage in a
two-step analysis. First, the court must determine whether there was a fundamental
failure in the trial. Second, if such a failure has occurred, the court must apply the
appropriate test to determine whether that failure affected a party's substantial rights
under the Kansas harmless-error tests. Where the failure involves a constitutional right,
the harmless-error test of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed.
2d 705 (1967), applies, and the error may be declared harmless only if the party
benefitting from the error shows beyond a reasonable doubt that the error complained of
did not or will not affect the outcome of the trial. Ward, 292 Kan. 541, Syl. ¶¶ 1, 5, 6.

We presume that these standards also apply to our review of a trial court's denial
of a motion for new trial. Traditionally, in Mathis and Jenkins, the Kansas Supreme Court
has said that a district court abuses its discretion when it denies a new trial based on juror
misconduct if the defendant makes a two-part showing: (1) that juror misconduct
occurred and (2) that it substantially prejudiced the defendant's right to a fair trial.
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Mathis, 281 Kan. 99, Syl. ¶ 2; Jenkins, 269 Kan. 334, Syl. ¶ 5. Step one of that test is
consistent with Ward; we are looking to see whether there was a fundamental failure in
the trial based on juror misconduct. But the second part of that test is the Chapman
harmless-error test that applies when a defendant's constitutional rights have been
infringed. In assessing that question, Ward counsels that the party benefitting from the
error must show beyond a reasonable doubt that the error did not affect the trial's
outcome. We must then determine which party benefits from the error to which party has
the burden to show that the error was harmless. See Ward, 292 Kan. 541, Syl. ¶ 9.

The defendant has the right to be tried by an impartial jury, Jenkins, 269 Kan. at
337, so any blow to jury impartiality arguably harms the defendant. More significantly,
our Supreme Court in Ward found "persuasive" the views expressed recently by four
United States Supreme Court justices on the denial of review in a case that included a
claim of juror misconduct. See Ward, 256 P.3d at 819-20 (citing Gamache v. California,
___ U.S. ___, ___, 131 S. Ct. 591, 592, 178 L. Ed. 2d 514 [2010] [statement of J.
Sotomayor, joined by three other justices]). The justices said that under Chapman, "the
prosecution must carry the burden of showing that a constitutional trial error is harmless
beyond a reasonable doubt." 131 S. Ct. at 592. We conclude, then, that once the
defendant has shown juror misconduct, the State must show beyond a reasonable doubt
that the error did not affect the trial's outcome.

We review the denial of a motion for new trial for abuse of discretion. Mathis, 281
Kan. 99, Syl. ¶ 1; Jenkins, 269 Kan. 334, Syl. ¶ 2. Judicial discretion is abused when (1)
the decision is so arbitrary that no reasonable person would agree with it; (2) the decision
is based on an underlying legal error; or (3) the decision is based on an underlying factual
error. Ward, 292 Kan. 541, Syl. ¶ 3. Ordinarily our review of the denial of a K.S.A. 60-
1507 motion after a nonevidentiary hearing must defer to any factual findings of the
district court that are based on substantial evidence in the record of the case. See Bellamy
v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). But our Supreme Court has noted that
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when the district court denies a K.S.A. 60-1507 motion based solely on legal arguments
made to it and a review of the case file, the appellate court is in as good a position to
review the matter as the trial court was so that the review should be an independent one,
without any required deference to the trial court. See Barr v. State, 287 Kan. 190, 196,
196 P.3d 357 (2008). This is such a case. There were no significant factual findings in the
district court's decision. Rather, its conclusion was based upon its interpretation of Kerby
and Jenkins, and the parties' appellate briefs simply extend their argument about how
those cases should be interpreted.

There can be no reasonable doubt here that juror misconduct occurred. There were
several questions asked that should have elicited a positive response from juror Black.
Moreover, the discussion of the arrests of other jurors went on for several minutes; 11
other jurors admitted past arrests, and the prosecutor followed up with questions to them.
Absent some highly speculative scenario in which Black was sitting attentively in the
jury box but actually had no idea what was going on, the only logical conclusion is that
he intentionally responded falsely when asked to say whether he had an arrest record "for
anything" or whether anyone in his family had ever been accused of rape.

We proceed then to the second step of analysis, in which the State must
demonstrate beyond a reasonable doubt that the error did not affect the trial's outcome.
The parties' arguments to the district court—and in their appellate briefs—mostly
addressed whether actual bias by a juror had to be shown. As in many of the past Kansas
cases, the parties did not specifically recognize that the State bears the burden to show
that any error was harmless. With this in mind, let's review the Kansas cases the parties
have discussed in their briefs.

In Kerby, a civil case, the Kansas Supreme Court reversed the district court's
denial of a new-trial motion when a juror (who later was selected the jury foreman)
falsely denied that any of the plaintiffs' attorneys had represented him in any pending or
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recent case. In fact, the plaintiffs' attorneys had represented him in a case that ended on
the same day the jury trial began. Our Supreme Court noted that whether to grant a new
trial is generally a discretionary call, 162 Kan. at 496, but reversed the district court and
announced a legal rule under which actual prejudice did not need to be shown when a
false answer to a question asked during jury selection deprived counsel of the opportunity
to ask further questions about the juror's impartiality. 162 Kan. 490, Syl. ¶ 3.

In Jenkins, a criminal case, a juror failed to disclose her acquaintance with the
victim and two of the State's witnesses, though this was found to have been done
unintentionally. But she also failed to disclose her acquaintance with two police officers
who were witnesses even though the same officers had assisted in prosecuting her son's
murderer. The court found that to have been an intentional deception. Without an
explanation, our Supreme Court concluded that this satisfied the traditional prejudice
requirement: "The juror's failure to disclose was intentional and her misconduct
substantially prejudiced Jenkins' right to a fair trial." 269 Kan. at 339.

In Mathis, another criminal case, the defendant argued that a juror had answered
falsely when he did not say that he recognized the defendant. That juror was the uncle of
the defendant's half-brother. But the juror wasn't directly related to the defendant (the
juror's brother was the defendant's half-brother's father, while the defendant and his half-
brother had the same mother but different fathers). Nor was there any evidence presented
that the juror should have recognized the defendant. Neither the district court nor our
Supreme Court found any misconduct, and our Supreme Court distinguished Jenkins on
two bases. First, it said that in Jenkins "[t]he intentionally deceptive nature of [the juror's]
misconduct was the centerpiece of the court's discussion." Mathis, 281 Kan. at 104.
Second, it said that "[t]he court's conclusion that [the juror's] misconduct substantially
prejudiced [the defendant's] right to a fair trial was also based on concealment of the
juror's highly positive experience with police and prosecution when her own son was the
victim of violent crime." 281 Kan. at 104.
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In Kerby and Jenkins, a juror had falsely answered a question that was specifically
related to the case. While a juror knowing one of the parties' attorneys may not always
result in that juror's disqualification, the court in Kerby appears to have concluded that
when a juror intentionally deceives the parties about having only recently been
represented by the plaintiffs' counsel, that is sufficiently material that prejudice must be
presumed. Similarly, while knowing one or more of the witnesses in a case may not
always result in the disqualification of a juror, the court in Jenkins appears to have
concluded that when a juror intentionally deceives the parties about having had a close
acquaintance with two police officers who had helped prosecute the murder of a member
of the juror's family, that too is sufficiently material that prejudice must be presumed.
There was no evidence noted in either opinion showing actual bias on the part of these
jurors. Thus, these cases appear to stand for the proposition—under the test as it was
applied in those cases—that when a juror intentionally deceives the court and the parties
about an aspect of his or her background that is sufficiently material, prejudice is
presumed and need not be separately proven.

When we look beyond Kansas state cases, we find considerations that lend further
support to our reading of Kerby and Jenkins. In McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984), the United
States Supreme Court held that a Kansas federal jury's verdict need not be set aside for a
new trial. The case involved a claim that a product defect had caused personal injury, and
an attorney asked the jury panel whether any of their family members had ever sustained
injuries from an accident. One juror's son had been injured in the explosion of a truck
tire, but that juror didn't respond to the question asked of the prospective jurors. The
Court held that a new trial was not required unless two criteria were met: "[A] party must
first demonstrate that a juror failed to answer honestly a material question on voir dire,
and then further show that a correct response would have provided a valid basis for a
challenge for cause." 464 U.S. at 556.
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Although McDonough Power Equipment was a civil case, federal courts have
regularly applied its standard when considering whether a new trial should have been
granted for juror misconduct in criminal trials. E.g., United States v. McConnel, 464 F.3d
1152, 1157 (10th Cir. 2006); United States v. Solorio, 337 F.3d 580, 595-96 (6th Cir.
2003). Significantly, five justices wrote in concurring opinions in McDonough Power
Equipment that juror bias may sometimes be inferred.

Justice Blackmun, joined by Justices Stevens and O'Connor, said that a party
seeking a new trial for juror misconduct should be given an opportunity to show actual
bias, but that "in exceptional circumstances," the facts may be "such that bias is to be
inferred." 464 U.S. at 556-57. Justice Blackmun and the justices who joined his
concurring opinion also joined the Court's opinion, so seven justices joined in the two-
part test set out there. Justice Brennan, joined by Justice Marshall, concurred only in the
judgment, not the specific two-part test the majority adopted. Brennan proposed his own
two-part test: a litigant should first have to show that a juror incorrectly responded to a
material question during jury selection and then that under the facts of the particular case,
the juror was biased against the moving litigant. Brennan specifically said that bias might
be shown either through proof of actual bias or "inferred from surrounding facts and
circumstances." 464 U.S. at 557-58.

While the Kansas Supreme Court did not explicitly talk about implied bias in
Kerby or Jenkins, its conclusions are consistent both with the holding of McDonough
Power Equipment and with the concept of implied bias mentioned by five justices. There
was dishonesty in each case; it seems clear that the Court viewed both the juror who
failed to say that the plaintiffs' attorney had been representing him and the juror who
didn't disclose her personal experience with two police officers who would testify had
been intentionally deceitful. And the Court viewed the subject matter of these deceits as
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sufficiently material in each case that bias of the juror should be inferred—at least given
the Chapman harmless-error test, which was explicitly applied in Jenkins.

Bell's case presents a factual situation more serious than found in either Kerby or
Jenkins. Juror Black was facing a rape charge at the very time that he sat on the jury that
would determine whether Bell had committed a rape. Applying McDonough Power
Equipment, the United States Court of Appeals for the Ninth Circuit has said that juror
bias may be inferred when a juror or the juror's family has been personally involved in a
situation involving a similar fact pattern to the one at issue in the case to be tried. Estrada
v. Scribner, 512 F.3d 1227, 1240 (9th Cir. 2008). That was the situation presented by
juror Black.

The State argues that we should infer that juror Black would have been biased
against the State and law-enforcement officers, not against the defendant. And the district
court agreed: "The alleged charge against [juror Black] reasonably suggests that [he]
would not have had positive experiences with law enforcement and the prosecution." We
think that conclusion too narrow given McDonough Power Equipment and cases that
have applied it. Black failed to answer honestly a material question in jury selection, and
had he disclosed the pending rape charge against him, the district court certainly would
have sustained a challenge for cause.

We do not know what Black was thinking when he intentionally deceived the
parties and the trial court regarding whether he had been arrested. But such an intentional
act could well indicate a desire to get onto this jury for some reason. He may have wanted
to see how such a case is tried, or hoped to curry favor with the prosecutor in his own
case by showing that he was willing to convict a true rapist while arguing that his case (in
which he was ultimately convicted only of attempted rape) was much different.

11

Whatever the case may have been, abstract speculation on whether a person in
Black's situation would be favorable to the prosecution or the defense seems beside the
point. What we know is that he intentionally deceived the parties about his background in
circumstances in which he must have known that revealing it would have kept him off the
jury. Given the defendant's right to be tried by an impartial jury, we cannot rely upon
speculation to wipe away facts that meet the test of McDonough Power Equipment and
seem more serious than those faced in Kerby and Jenkins.

We also believe the State's argument overlooks the Chapman harmless-error
standard, which must be applied here. We cannot conclude beyond a reasonable doubt
that the presence of juror Black on the jury had no effect on the jury's verdict.

Further, Kansas law provides—quite rightly—that we generally do not allow
inquiry into the discussions jurors have. See State v. Cook, 281 Kan. 961, Syl. ¶ 6, 135
P.3d 1147 (2006). Thus, it's not an easy thing to prove that a juror's actual bias affected
the trial outcome. In this case, Bell need not do so. The juror's failure here to honestly
answer a material question during jury selection when an honest answer would have
given defense counsel a valid basis to challenge that juror for cause entitles Bell to a new
trial. See Estrada, 512 F.3d at 1240; Brooks v. Dretke, 418 F.3d 430, 432-35 (5th Cir.
2005) (juror bias inferred when juror participated in capital-murder jury while criminal
charge was pending against juror); Burton v. Johnson, 948 F.2d 1150, 1155-59 (10th Cir.
1991) (juror bias inferred when juror didn't disclose she had been abused by her spouse in
murder trial involving abused-spouse defense).

We have concluded that Bell is entitled to a new trial because—unbeknownst to
the court, the attorneys, and the defendant—a juror sat in judgment of Bell when that
juror simply should not have been allowed to participate. We do not set aside a jury
verdict lightly, nor do we lightly require that witnesses in an emotionally difficult case
testify a second time. But Bell was sentenced to more than 20 years in prison, and we
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also recognize that no one can—or should—be sent to prison in the United States unless
he or she has received a fair trial in compliance with constitutional requirements. See
State v. Jackson, 39 Kan. App. 2d 89, 100, 177 P.3d 419 (2008).

The judgment of the district court is reversed, and the case is remanded with
directions to order a new trial.