IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 87,790
STATE OF KANSAS,
Appellee,
v.
SONJI DANIELS,
Appellant.
SYLLABUS BY THE COURT
1. Under the facts of this case where evidence of bodily harm was essentially uncontroverted, it was not clearly erroneous to omit the element of bodily harm from the instruction on aggravated robbery.
2. A criminal defendant is deprived of due process when his or her conviction is based, in whole or in part, upon the coerced statement of a witness.
3. A criminal defendant has the right to object to the introduction of any confession or admission on grounds of voluntariness, and when a defendant so objects, the prosecution then has the burden of proving the confession is voluntary and admissible. However, a trial court has no duty to hold a hearing on the voluntariness of a confession absent some type of objection or motion by the defendant.
4. Under the facts of this case, where defendant did not establish substantial prejudice, the trial court did not abuse its discretion in denying a motion for mistrial which was based upon an allegation that State's witness gave false or irrelevant testimony.
Review of the judgment of the Court of Appeals in an unpublished opinion filed October 3, 2003. Appeal from Douglas district court; JACK A. MURPHY, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. Opinion filed June 25, 2004.
Sandra M. Carr, assistant appellate defender, argued the cause and was on the briefs for appellant.
Bradley R. Burke, assistant district attorney, argued the cause, and Scott E. McPherson, assistant district attorney, and Christine Kenney, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion was delivered by
LUCKERT, J.: A jury convicted Sonji Daniels of aiding and abetting aggravated robbery, conspiracy to commit aggravated robbery, and endangering a child. In an unpublished opinion, the Court of Appeals affirmed her convictions. State v. Daniels, No. 87,790, unpublished opinion filed October 3, 2003. This court granted her petition for review.
Daniels raises six issues: (1) Did Daniels' sentences violate her right to trial by jury and to due process of law where the jury instructions defining aggravated robbery omitted the element of bodily harm?; (2) Where the jury instructions defining aggravated robbery omitted the element of bodily harm and failed to define bodily harm, were the instructions clearly erroneous?; (3) Was Daniels' right to a fair trial violated by the admission of involuntary statements coerced by police from her 12-year-old son?; (4) Did the district court err in denying Daniels' motion for mistrial based upon the misconduct of a prosecution witness?; (5) Were Daniels' convictions of aiding and abetting aggravated robbery and conspiracy to commit aggravated robbery supported by sufficient evidence?; and (6) Was Daniels' conviction of endangering a child supported by sufficient evidence?
Facts
Daniels accepts the Court of Appeals' rendition of the facts. Those facts are set out below:
"On April 4, 2001, the victim walked the few blocks from his home to the Capitol Federal Savings Bank as he had done frequently in the past. Arriving at the bank, the victim deposited a portion of his paycheck and withdrew $293 in cash, which he placed in the left front pocket of his pants. Directly behind the victim in line at the bank, the defendant waited to withdraw some money from her account.
"After leaving the bank, the victim, who was 78 years old and moved very slowly, turned down the alley connecting 10th and 11th Streets between Vermont and Massachusetts and headed for the post office. Before the victim reached 10th Street, two young African-American males entered the alley from 10th Street, approached the victim, and punched the victim in the chest, knocking him down and causing him to hit his head on a drain pipe. The two men then pinned the victim to the ground while one of them reached into the victim's front left pocket and pulled out the cash the victim had just withdrawn from the bank. Afterwards, the African-American males ran towards 10th Street.
"The victim picked himself up and walked over to a doorway where Salwa Iskandrani witnessed the attack on the victim. She and her son Mohammed helped the victim into the restaurant owned by Mohammed and provided the victim with a wet towel to wipe the blood flow from a cut in the victim's head. The victim remained in the restaurant until the police arrived. Ms. Iskandrani later identified the attackers as African-American males who were both dressed in red-colored shirts and long sweat pants. The victim provided a similar description.
"About 3:30 p.m., Diana Kitsmiller exited her place of employment at the corner of 10th Street and Massachusetts to put money in a parking meter. Kitsmiller had parked next to the alley across from D & D Tire Shop. As Kitsmiller was putting money in the meter, she was startled as two African-American men nearly bumped into her as they ran out of the alley onto 10th Street.
"Kitsmiller continued to watch the men until she lost sight of them shortly after they crossed Massachusetts Street. Kitsmiller then investigated the alley with a fellow employee and discovered that the victim had been robbed. She provided a statement to the investigating officers.
"As Officer Craig Shanks ended his shift and left the law enforcement center at approximately 3:20 p.m., on April 4, 2001, he noticed a blue, 4-door Chevrolet bearing an Illinois license tag, which the officer associated with Dewayne Moss due to a prior traffic stop of the vehicle. The vehicle was parked in the 1000 block of New Hampshire Street on the west side of the street, facing south, but, approximately 2 hours earlier that day, Officer Shanks had seen the same vehicle parked on the east side of the 1100 block of Rhode Island, facing north.
"As he observed the vehicle, he saw Moss and another man running across New Hampshire Street. The officer identified Moss from a distinctive scar running down the left side of his neck. While the officer did not recognize the other person, he noted that both men wore similar clothing. Later, hearing reports of the robbery over the police radio, Officer Shanks informed dispatch of his observations.
"When dispatch broadcast Officer Shanks' report, Officer Leo Souders traveled down Rhode Island Street from 9th Street and observed a dark blue Chevrolet Malibu with an Illinois license. Noting that the tags had expired in March of 1999, Officer Souders made a traffic stop of the vehicle and approached the driver, who was an African-American woman. The vehicle contained only one passenger, an African-American juvenile male.
"Officer Souders identified the driver of the vehicle as the defendant. He requested permission to search the vehicle and the defendant's purse, and the defendant consented. After the officer had completed his search, the defendant requested permission to leave to pick up her children from school.
"Officer Souders and Officer Verbanic followed the defendant to her apartment and requested permission to search the premises. The defendant again consented, but the search provided no evidence of the robbery.
"In the course of investigating the robbery, the police identified and interviewed an employee of D & D Tire Shop, who had witnessed two African-American males emerging from a blue Chevy Malibu and entering the alley at approximately 3:30 p.m. on April 4, 2001. The witness stated that one of the men was approximately 6 feet and wore jeans and a red and white shirt; the other was approximately 5 inches shorter than the first and wore cut-off jean shorts and a dark shirt.
"Because D.D., the son of the defendant, was in the car when the defendant was stopped on April 4th for having expired license tags, the police decided to interview him as a possible witness to the robbery. Detective Lance Flachsbarth and Officer Ryan Sayler first questioned D.D. in the principal's office at D.D.'s school on April 13, 2001. During this interview, D.D. asserted that only his mother and he had been in the vehicle on April 4th and that they had not transported Moss anywhere.
"According to Detective Flachsbarth, however, D.D.'s statements became fraught with contradictions after the detective began exploring D.D.'s initial responses. Consequently, the detective decided to conduct a second interview that same day after picking up D.D. and two of his siblings at the Boys and Girls Club.
"At the second interview, D.D. stated that in the early afternoon of April 4th, his mother and he had visited the law enforcement center. According to D.D., after completing their business, the defendant and D.D. were met by Moss and D.D.'s older brother, Dante. The defendant, the 2 children, and Moss all rode in the car to the bank. D.D. told the detective that his mother, the defendant, then entered the bank. When the defendant returned, she spoke to Moss and Dante outside the car. The defendant then drove around the corner, and Moss and Dante exited the vehicle and walked down the alley.
"After the interview, Detective Flachsbarth requested D.D. to show the police the route that the defendant took from the bank to the place where Moss and Dante exited the vehicle in front of the D & D Tire Shop." Slip op. at 2-7. State v. Daniels, No. 87,790, unpublished opinion filed October 3, 2003.
A jury convicted Daniels of aiding and abetting aggravated robbery, conspiracy to commit aggravated robbery, and endangering a child. Daniels received a controlling sentence of 66 months' imprisonment.
Where the Jury Instructions Defining Aggravated Robbery Omitted
the Element of Bodily Harm and Failed to Define Bodily Harm,
Were the Instructions Clearly Erroneous?
Daniels' first and second arguments are based upon the trial court's failure to properly instruct the jury on the elements of the underlying crime of aggravated robbery. The jury instruction omitted the element of bodily harm which distinguishes a simple robbery from an aggravated robbery. Robbery is defined as "the taking of property from the person or presence of another by force or by threat of bodily harm to any person." K.S.A. 21-3426. Aggravated robbery is defined as a robbery "committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery." K.S.A. 21-3427.
Neither party objected to the jury instruction as given. It appears that the omission of the bodily harm element was inadvertent as the State argued in closing that the abrasion to the back of the victim's head constituted the bodily harm element of aggravated robbery.
On appeal, Daniels argues that the omission of the bodily harm element violated her right to jury trial and due process and that, because of the omission, the jury instructions were clearly erroneous. Considering the issues in the reverse order submitted by the parties, we first discuss whether the omission of the bodily harm element render the jury instructions clearly erroneous. This issue, which incorporates the clearly erroneous standard, states our standard of review since Daniels did not object to the instructions as given and did not request that the instructions define bodily harm. K.S.A. 2003 Supp. 22-3414(3). "Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. [Citations omitted.]" State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).
The Court of Appeals applied State v. Bryant, 22 Kan. App. 2d 732, 734-35, 922 P.2d 1118, rev. denied 260 Kan. 996 (1996), which held that the definition of bodily harm used in aggravated kidnapping cases is also applicable to aggravated robbery cases. In the context of aggravated kidnapping, bodily harm includes any act of physical violence even though no permanent injury results. Trivial or insignificant bruises or impressions resulting from the act itself are not considered to be bodily harm, but unnecessary acts of violence, including those occurring after the initial abduction of the victim, do constitute bodily harm. Bryant, 22 Kan. App. 2d at 734-35 (citing State v. Sanders, 225 Kan. 156, 587 P.2d 906 [1978]).
Based upon the above definition, the Court of Appeals in this case concluded that the jury could have found that the victim's head injury, which occurred when the robbers intentionally struck the victim, causing him to fall and hit his head on a drain pipe, constituted bodily harm. The court also found that the force used was excessive in light of what was necessary to accomplish the robbery. Slip op. at 10-11.
In support of its conclusion, the Court of Appeals cited State v. Redford, 242 Kan. 658, 671, 750 P.2d 1013 (1988). Slip op. at 11. The jury instructions in Redford defined rape as nonconsensual sexual intercourse but omitted the element that the victim was overcome by force or fear. The Redford court noted there was no evidence of nonconsensual intercourse in any circumstance other than fear, and that Redford's defense was to present a completely different version of events and to deny nonconsensual intercourse. In essence, the jury could choose to believe either the victim or Redford. Under these facts, the Redford court found the erroneous jury instruction to be harmless because the jury's verdict would have been no different had the jury been properly instructed. 242 Kan. at 671-72.
In her brief, Daniels essentially argues that a jury instruction which omits an essential element of the crime must always be clearly erroneous. That is clearly not the case. In addition to Redford, the following cases have found the omission of an element of the crime in a jury instruction to be harmless error: State v. Duke, 256 Kan. 703, 712-14, 887 P.2d 110 (1994) (omission of element of aggravated arson that fire damaged property in which another person has an interest was harmless error because "missing element in the instruction would not have altered the outcome of the trial"); and State v. Peltier, 249 Kan. 415, 423-28, 819 P.2d 628 (1991), cert. denied 505 U.S. 1207 (1992) (error in instructing the jury that, as a matter of law, indecent liberties with a child constituted the bodily harm necessary to establish element of aggravated kidnapping was harmless beyond a reasonable doubt).
In addition, the United States Supreme Court has also ruled that the failure to submit an element of the crime to the jury was not structural error and was, therefore, subject to harmless error review. Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999).
Neder was convicted of filing false federal income tax returns, mail fraud, wire fraud, and bank fraud. The trial court determined that materiality was not a question for the jury and found that the evidence established the element of materiality with regard to the tax and bank fraud charges. The court also omitted the element of materiality from the instructions on mail fraud and wire fraud. The Eleventh Circuit affirmed, holding that the trial court erred in failing to submit the materiality element of the tax offense to the jury under United States v. Gaudin, 515 U.S. 506, 132 L. Ed. 2d 444, 115 S. Ct. 2310 (1995), but that the error was harmless. The Eleventh Circuit also ruled that the trial court did not err in failing to submit materiality to the jury on the remaining charges because materiality was not an element of mail fraud, wire fraud, or bank fraud.
The United States Supreme Court affirmed the first portion of the Eleventh Circuit's ruling. Citing Gaudin, the Court concluded that refusing to instruct on the element of materiality on the fraud charges was erroneous. 527 U.S. at 4.
This court recently relied upon Gaudin in holding that a trial court erred in instructing the jury that, as a matter of law, an element of the crime had been established by the evidence. State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003). The Brice court described the Gaudin decision as follows:
"Gaudin, 515 U.S. 507, is a unanimous decision of the United States Supreme Court, holding that it was unconstitutional for the trial judge to refuse to submit to the jury the question of materiality of defendant's statements in a prosecution for making false statements on Federal Housing Administration (FHA)/Department of Housing and Urban Development (HUD) loan documents. Gaudin was charged with knowingly inflating the appraised value of the mortgaged property and misrepresenting which party was to pay closing costs. The government called several FHA/HUD program administrators as witnesses to explain why the information Gaudin allegedly falsified was important. The trial judge instructed the jury that one of the elements the government was required to prove in order to convict Gaudin was that the alleged false statements were material to the activities and decisions of HUD. 'But, the court further instructed, "[t]he issue of materiality . . . is not submitted to you for your decision but rather is a matter for the decision of the court. You are instructed that the statements charged in the indictment are material statements."' 515 U.S. at 508.
"The Ninth Circuit Court of Appeals reversed Gaudin's convictions, holding that 'taking the question of materiality from the jury denied respondent a right guaranteed by' the Due Process Clause of the Fifth Amendment and the Sixth Amendment right of criminal defendants to a trial by an impartial jury. 515 U.S. at 509. On certiorari, the government argued that the principle of requiring the jury to decide all the elements of a criminal offense was inapplicable because the question of materiality was a question of law. The Supreme Court rejected the argument on the grounds that materiality is a mixed question of law and fact and that mixed questions historically have been determined by juries in reaching criminal verdicts. 515 U.S. at 512-15. The Supreme Court stated:
'The Fifth Amendment to the United States Constitution guarantees that no one will be deprived of liberty without "due process of law"; and the Sixth, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." We have held that these provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 277-278[, 124 L. Ed. 2d 182, 113 S. Ct. 2078] (1993).' 515 U.S. at 509-10.
In affirming the judgment of the Ninth Circuit Court of Appeals, the Supreme Court concluded: 'The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. The trial judge's refusal to allow the jury to pass on the "materiality" of Gaudin's false statements infringed that right.' 515 U.S. at 522-23." Brice, 276 Kan. at 766-67.
In Brice, the defendant was convicted of aggravated battery based upon his shooting the victim in the leg. The trial court instructed the jury that "great bodily harm" as an element of aggravated battery means a "through and through bullet wound." The Brice court held that the instruction "invades the province of the jury as factfinder and violated Brice's Fifth and Sixth Amendment rights to have the jury determine his guilt or innocence." 276 Kan. at 772. The Brice court reversed and remanded for a new trial without engaging in a harmless error analysis.
Nor did the Gaudin court analyze whether the error in that case could be harmless. As noted by Chief Justice Rehnquist in his concurring opinion, the government had not argued that the error was harmless or "not plain," 515 U.S. at 526, thus the Court had "no occasion to review the Court of Appeals' conclusion that the constitutional error here 'cannot be harmless.' [Citation omitted.]"
However, in Neder, immediately after noting that Gaudin established that it was error not to include the element of materiality in the instructions relating to the fraud charges, the Court stated: "We hold that the harmless-error analysis of Chapman v. California, 386 U.S. 18, [17 L. Ed. 2d 705, 87 S. Ct. 824] (1967), applies to this error." Neder, 527 U.S. at 4. The Court considered whether a jury instruction that omits an element of the offense falls within that category of fundamental constitutional errors which are so intrinsically harmful as to require automatic reversal. The Court noted that it had found structural error requiring automatic reversal in only a few limited cases such as cases involving the complete denial of counsel, a biased trial judge, racial discrimination in grand jury selection, denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt instruction. 527 U.S. at 8.
The Neder Court found that an erroneous jury instruction which omits an element of the offense "differs markedly" from the types of constitutional violations listed above. 527 U.S. at 8. Whereas structural errors render a trial fundamentally unfair, "an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." 527 U.S. at 9. In support, the Court cited Johnson v. United States, 520 U.S. 461, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997), a perjury case where the element of the materiality of the false statement was decided by the trial judge rather than the jury. Because Johnson failed to object at trial, the Court had reviewed her claim under the "plain error" standard, finding that the error did not require reversal based upon the overwhelming and "essentially uncontroverted" evidence supporting materiality. 520 U.S. at 470.
According to the Neder Court, its opinion in Johnson cut "against the argument that the omission of an element will always render a trial unfair." 527 U.S. at 9. The Court noted that improperly omitting an element of the offense is analogous to improperly instructing a jury on an element and improperly instructing the jury that an element is conclusively presumed because all three types of errors preclude the jury from making a finding on the actual element of the offense.
In deciding that the erroneous omission of an element from a jury instruction was subject to a harmless error analysis, the Court rejected the more restrictive approach suggested by Neder that such errors be deemed harmless only in certain rare circumstances. Instead, the Court applied the constitutional harmless error test set out in Chapman. 527 U.S. at 15.
The Court found that the error was harmless because the evidence supporting materiality was so overwhelming that Neder had never argued that his false statements about his income were immaterial. The Court stated:
"In this situation, where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. We think it beyond cavil here that the error 'did not contribute to the verdict obtained.'" 527 U.S. at 17 (quoting Chapman).
With regard to the reviewing court's inquiry, the Court explained that a reviewing court "asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is 'no,' holding the error harmless does not 'reflec[t] a denigration of the constitutional rights involved.' [Citation omitted.]" 527 U.S. at 19.
As to the second portion of the Eleventh Circuit's ruling, the Neder Court ruled that materiality was an element of mail fraud, bank fraud, and wire fraud and remanded the case to the Eleventh Circuit for a determination of whether the trial court's failure to instruct on the element of materiality as to these offenses was harmless error. 527 U.S. at 25.
Thus, we must determine if the omission of the element of bodily harm was harmless error or not. Under the Neder test, "where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless." 527 U.S. at 17. Stated another way, the reviewing court "asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." 527 U.S. at 19. If the answer to that question is "'no," the error may be held harmless.
Under the facts of this case, the element of bodily harm was not contested and was supported by overwhelming evidence. The evidence established that the robbers hit the victim in the chest, causing him to fall and cut his head on a drain pipe. The record on appeal includes a photograph showing the victim's injury. Although there was little evidence regarding the injury, there was testimony about the flow of blood and the assistance provided by bystanders to stop the bleeding. Furthermore, we agree with the State and with the Court of Appeals that it was unnecessarily violent to push a 78-year-old man to the ground in order to accomplish a robbery.
As we stated in State v. Young, 277 Kan. 588, ___, 87 P.3d 308, 314 (2004), the omission of the element of bodily harm from the jury instruction on aggravated battery was "literally but not legally 'clearly erroneous.'" We are convinced beyond a reasonable doubt that the jury's verdict would have been the same even if it had been correctly instructed, thus we hold that the error was harmless.
We also reject Daniels' argument that, had the jury been properly instructed as to the definition of bodily harm, it could easily have found that the victim's injury was merely trivial or insignificant. As discussed above, the evidence of bodily harm was essentially uncontested and, as a result, overwhelming. We find that the trial court did not err in failing to instruct the jury on the definition of bodily harm. See State v. Royal, 234 Kan. 218, 222, 670 P.2d 1337 (1983).
Did Daniels' Sentences Violate her Right to
Trial by Jury and to Due Process of Law Where the
Jury Instructions Defining Aggravated Robbery
Omitted the Element of Bodily Harm?
Daniels also argues that the error requires automatic reversal because the omitted element of bodily harm is what distinguishes severity levels of robbery. See State v. Crawford, 247 Kan. 223, 795 P.2d 401 (1990) (jury instruction on aggravated burglary which erroneously omitted the essential element that a human being was inside the house was clearly erroneous because jury could find not more than simple burglary).
Daniels cites Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), for the premise that any fact which increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
As noted by the Court of Appeals, Apprendi held that using a judge's factual determination to enhance a defendant's sentence invaded the province of the jury to decide whether a defendant was guilty beyond a reasonable doubt. The Court of Appeals concluded that Apprendi did not apply in this case because the trial court did not make any factual determinations which increased Daniels' sentence beyond statutorily authorized limits and did not impose an upward departure sentence. Slip op. at 9. We agree with the Court of Appeals on this point.
This court has discussed Apprendi in ruling on the validity of upward durational departure sentences (State v. Gould, 271 Kan. 394, 23 P.3d 801 [2001]), upward dispositional departure sentences (State v. Carr, 274 Kan. 442, 53 P.3d 843 [2002]), the hard 40 and hard 50 sentencing schemes (State v. Conley, 270 Kan. 18, 11 P.3d 1147 [2000]; and State v. Douglas, 274 Kan. 96, 49 P.3d 446 [2002]), and the procedure for authorizing adult prosecutions (State v. Jones, 273 Kan. 756, 47 P.3d 783 [2002]). However, this court has never applied Apprendi in a case involving erroneous jury instructions. Daniels does not cite any authority to support her theory.
Furthermore, an examination of decisions of the United States Supreme Court leads us to conclude that even if an Apprendi-type error did occur, Daniels' argument fails because the alleged error was not structural. Thus, reversal is not automatic, and the analysis of Neder and Johnson still apply.
Since Apprendi, the United States Supreme Court has unanimously reiterated "that the trial court's failure to instruct a jury on all of the statutory elements of an offense is subject to harmless-error analysis. E.g., Neder v. United States, 527 U.S. 1, 19, [144 L. Ed. 2d 35, 119 S. Ct. 1827] (1999)." Mitchell v. Esparza, 540 U.S. ___, 157 L. Ed. 2d 263, 269, 124 S. Ct. 7, 11 (2003). The Mitchell Court did not discuss Apprendi in relation to this issue.
In United States v. Cotton, 535 U.S. 625, 152 L. Ed. 2d 860, 122 S. Ct. 1781 (2002), the Court did find Apprendi error in the omission from a federal indictment of a fact that enhanced the statutory maximum sentence. However, as in Neder, the Court relied upon Johnson and concluded the error was not structural. 535 U.S. at 632. Consequently, the