No. 99,102
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RANDY JOHNSON,
Appellant.
SYLLABUS BY THE COURT
1. An appellate court reviews the trial court's decision on a motion for a new trial for an abuse of discretion.
2. A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial.
3. Under the facts of this case, a juror's vague statement regarding the defendant's previous conduct did not substantially prejudice the defendant's right to a fair trial.
4. A trial court's decision to respond to a jury's request for additional information during deliberations is reviewed for an abuse of discretion.
5. A trial court's decision to provide additional instruction to the jury when a question is submitted during deliberations will be upheld as long as the additional instruction is not coercive or otherwise objectionable. In other words, the court must determine whether the defendant's rights were prejudiced by the trial court's action in giving the instruction.
6. Under K.S.A. 22-3421, a party in a civil or criminal case has the burden to request individual polling of the jury.
7. When a party in a civil or criminal case fails to make a timely request to poll the jury, the party waives the right to have the jury individually polled.
8. Under K.S.A. 22-3421, the jury's verdict shall be written, signed by the presiding juror, and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict.
9. No person may lawfully be convicted by a jury unless every juror actually agrees that upon the evidence and the law of the case that person is guilty. If a verdict of guilty is returned for any other reason, it is a perversion of the constitutional guaranty to a jury trial.
10. K.S.A. 22-3421, which requires that an inquiry be made to the jury whether the verdict represents the jury's verdict, mandates reversal of the verdict when the trial court neglects to make an inquiry to the jury as required by K.S.A. 22-3421 and when the appellate record establishes that there is a question whether the verdict represents the agreement of the individual jurors.
Appeal from Cheyenne District Court; JACK L. BURR, judge. Opinion filed December 31, 2008. Reversed and remanded with directions.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Justin A. Barrett, county attorney, and Stephen N. Six, attorney general, for appellee.
Before McANANY, P.J., GREEN and BUSER, JJ.
GREEN, J.: Randy Johnson appeals from his jury trial conviction of felony driving under the influence of alcohol (DUI) in violation of K.S.A. 8-1567. First, Johnson argues that his case should be remanded for a new trial because a juror improperly introduced extrajudicial evidence regarding prior bad acts. Nevertheless, because Johnson has failed to show that the alleged juror misconduct substantially prejudiced his right to a fair trial, he has not established that the trial court abused its discretion in denying him a new trial. As a result, Johnson's argument fails.
Next, Johnson contends that the trial court failed to completely respond to the jury's question about the consequences of a hung jury. Nevertheless, we determine that there was nothing in the trial court's response that would prejudice Johnson's rights in this case. As a result, we find no abuse of discretion in the trial court's response to the jury's question.
Finally, Johnson argues that the trial court erred in failing to inquire into the accuracy of the jury's verdict and in failing to ask whether the parties wanted the jury polled. Under K.S.A. 22-3421, the parties have the burden to request individual polling of the jury. Because Johnson failed to timely request polling of the jury, he waived his right to have the jury individually polled. Nevertheless, K.S.A. 22-3421 imposes a statutory mandate upon the trial court to ask the jury in open court whether the verdict is the jury's verdict. Because the trial court failed to follow the statutory mandate of K.S.A. 22-3421, which would give the jurors an opportunity to express dissent from or disagreement with the verdict, we cannot be satisfied that the verdict was truly unanimous in this case. Under the facts of this case, where Johnson has presented jurors' affidavits showing problems with the unanimity of the verdict, we determine that the trial court's failure to follow the statutory mandate of K.S.A. 22-3421 to inquire as to whether the verdict was the jury's verdict amounted to reversible error.
Officer Mark Davidson stopped Johnson around 3 a.m. on June 12, 2005. Before stopping Johnson, Davidson's radar had clocked Johnson's van traveling 42 miles per hour in a 65-mile-per-hour speed zone. Davidson testified that he had passed Johnson going in the opposite direction, so he turned around and began following him. While following Johnson, Davidson saw Johnson's van travel left of the center line and also cross the right white line. According to Davidson, Johnson was unable to produce his driver's license during the stop. Nevertheless, Craig Van Allen, the officer who later came to assist Davidson with the stop, testified that he saw Davidson with Johnson's driver's license that evening.
Davidson testified that when he asked Johnson to step out of the van, Johnson appeared to be under the influence of alcohol. Davidson testified that Johnson had bloodshot eyes, slurred speech, and poor coordination. In addition, Johnson smelled of alcohol. Davidson had Johnson perform field sobriety tests. According to Davidson, Johnson said that he knew he would fail the tests. Davidson testified that during the walk-and-turn field sobriety test, Johnson lost his balance in the instruction stage; did not touch heel to toe; stepped off the line; and made an improper turn. Moreover, on the one-leg stand test, Johnson hopped and put his foot down on the ground.
After Johnson performed the field sobriety tests, Van Allen arrived to assist Davidson. Van Allen testified that Johnson's speech was slurred, his balance and coordination were impaired, and his breath smelled of alcohol. According to Van Allen, Johnson had trouble standing in one spot and was taking steps to maintain a standing position. Moreover, Van Allen testified that Johnson admitted that he had been drinking but asked the officers not to arrest him.
Davidson arrested Johnson for DUI. Davidson testified that his opinion was that Johnson could not safely operate an automobile. After Johnson agreed to submit to an alcohol blood test, Davidson took him to the hospital. On the way to the hospital, Van Allen dropped Johnson's van off at Johnson's body shop. Van Allen testified that there was a box of beer in Johnson's van between the passenger's seat and driver's seat "but pushed a little back."
Upon arriving at the hospital, Johnson said that he had changed his mind and would not take the blood test. Davidson then took Johnson to the police station. Both Van Allen and Davidson testified that Johnson stumbled on his way into the police station. Moreover, Van Allen testified that Johnson leaned against the wall as he walked down the hallway. Davidson and Van Allen later took Johnson home.
Johnson was charged with felony DUI in violation of K.S.A. 8-1567(a). During his testimony at the jury trial, Johnson admitted that he had approximately five beers between 10:30 p.m. on June 11, 2005 and before 2 a.m. on June 12, 2005. Nevertheless, Johnson testified that he thought he was fully capable of driving in a safe manner. According to Johnson, he had his first beer when he met his two friends, Brian Draper and Eric Harper, at a bar in Atwood between 10:30 and 11 p.m. After having one beer, Johnson drove Draper and Harper to Colby to celebrate Draper's birthday. Johnson testified that they arrived at a bar in Colby just after midnight where they ran into three other friends. According to Johnson, he had one bottle of beer and two to three beers out of a pitcher while he was at the bar in Colby. Upon leaving the bar around 2 a.m., Johnson drove Draper and Harper to Harper's car in Atwood.
Harper testified that he and Draper had put the box of beer in Johnson's van. According to Harper, he and Draper, not Johnson, were drinking the beer in Johnson's van on the way to and from Colby. Harper testified that he did not believe that Johnson was too intoxicated to drive that night. Jason Barnhardt, one of Johnson's friends at the Colby bar, testified that he had no doubts about Johnson's ability to drive safely that evening. According to Barnhardt, their group of six had only had two or three pitchers within an hour and a half at the bar in Colby.
Johnson testified that after he dropped Draper and Harper off at Harper's car, he drove towards his home in St. Francis. Johnson stopped at a rest area in MacDonald to use the restroom but then continued driving home. Johnson testified that he had his cruise control set at 67 miles per hour in the 65-mile-per-hour speed zone. Johnson further testified that when he reached Bird City, he slowed down and coasted through the town but then resumed his cruise control at 67 miles per hour. Johnson testified that he never passed a car going in the opposite direction but he did notice a car behind him a few miles outside of Bird City. Johnson was stopped several miles later by Davidson.
According to Johnson, Davidson said that the reason he stopped Johnson was because Johnson was traveling 53 miles per hour through Bird City. Johnson testified that Davidson never said that he had observed Johnson traveling across the center line or driving 42 miles per hour in a 65 mile-per-hour-speed zone. Johnson further testified that when Davidson asked him to perform the field sobriety tests, he agreed to perform the tests but told Davidson that he would not be able to complete them due to the wind that evening. Johnson admitted that he refused to take the blood alcohol test. Johnson testified, however, that Davidson never told him about the consequences of his refusal. Further, Johnson denied that he stumbled when he walked into the police station.
Johnson testified that Davidson gave him the implied consent advisory form and told him to look at it but did not read the advisories to him. On the other hand, Davidson testified that he had read the implied consent advisories to Johnson. Davidson indicated that he read Johnson the implied consent advisories at the scene of the stop but was unsure whether he gave Johnson the implied consent advisory form there or at the hospital.
During jury deliberations, the jury asked several questions, including what would happen if it could not reach a unanimous verdict. The jury was sent back to deliberation, and it later returned a verdict of guilty on the DUI charge.
I. Did a juror improperly introduce extrajudicial evidence regarding prior bad acts?
First, Johnson argues that his case should be remanded for a new trial because a juror improperly introduced extrajudicial evidence regarding prior bad acts. Under K.S.A. 22-3501, "[t]he court on motion of a defendant may grant a new trial to him if required in the interest of justice." An appellate court reviews the trial court's decision on a motion for a new trial for an abuse of discretion. See State v. Mathis, 281 Kan. 99, 103-04, 130 P.3d 14 (2006). "'A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial. [Citation omitted.]' [Citation omitted.]" Mathis, 281 Kan. at 103-04.
After the jury rendered its guilty verdict in this case, Johnson moved for a new trial based in part on juror misconduct. Attached to Johnson's motion for a new trial were affidavits from jurors. In one of the affidavits, a juror claimed that one of the other jurors had stated during deliberations that "this was not Randy's 1st time and he was about due for the charge."
The State suggests that the juror's statement was a mental process, which cannot be used to show juror misconduct under K.S.A. 60-441. On the other hand, Johnson contends that the juror's statement was not an example of a mental process but was a statement showing that a juror had introduced prejudicial extrajudicial evidence in the deliberation process.
The procedure for and limitations on challenging the validity of a jury's verdict are statutory. Under K.S.A. 60-444(a), a juror is not exempt "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 . . . except as expressly limited by K.S.A. 60-441." K.S.A. 60-441 prohibits testimony concerning the jury's mental processes:
"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."
A verdict may not be impeached by questions concerning a juror's views or conclusions, the reasons for those views or the factors used in determining those conclusions, or what influences those views or the mental process in reaching such conclusions. Saucedo v. Winger, 252 Kan. 718, 728-29, 850 P.2d 908 (1993).
In State v. Cook, 281 Kan. 961, 135 P.3d 1147 (2006), our Supreme Court clarified what evidence can be considered under K.S.A. 60-444(a) and what evidence is excluded under K.S.A. 60-441. There, the defendant moved to recall the jury based on a juror affidavit where the affiant attested that he heard another juror state that the defendant had previously been tried and convicted of the same crime. Our Supreme Court held that the evidence of what the other juror had said to the affiant juror was admissible under K.S.A. 60-444(a). Any evidence of what effect the statement had on the affiant's mental process in reaching the verdict was inadmissible under K.S.A. 60-441. 281 Kan. at 977-78.
In reaching this determination, our Supreme Court in Cook looked to its previous decision in State v. Kaiser, 260 Kan. 235, 918 P.2d 629 (1996). In Kaiser, the defendant moved to recall the jury based on a juror affidavit where the affiant stated that, contrary to her expressed opinion that the defendant was not guilty, she had been pressured by other jurors to agree to a guilty verdict. Our Supreme Court held that the evidence of what the other jurors said and did was admissible under K.S.A. 60-444(a). The evidence of what effect the conduct had on the affiant's mental process in reaching the guilty verdict was inadmissible under K.S.A. 60-441. 260 Kan. at 250-52.
An application of Cook and Kaiser to the facts of this case leads to the conclusion that evidence of what the other juror had said can be considered under K.S.A. 60-444(a). Nevertheless, any evidence about what effect the other juror's statement had on the affiant juror's mental processes in reaching the verdict is barred by K.S.A. 60-441.
We draw guidance from Brown v. Hardin, 197 Kan. 517, 419 P.2d 912 (1966). In Brown, our Supreme Court indicated that evidence of other jurors' statements that related to matters that were an intrinsic part of the verdict should not be considered under K.S.A. 60-441. Although Brown is a civil case, its reasoning is instructive. After the verdict in Brown, two jurors submitted affidavits relating that statements were made by other jurors in the jury room that they did not give any consideration to a rebuttal witness' testimony because they were of the opinion he had been "paid" to come and testify and that it was also remarked that the witness had been "bought off" and they could not pay any attention to his testimony. Rejecting the appellant's argument that this was juror misconduct, our Supreme Court stated:
"Clearly these affidavits related to matters occurring during the jury's deliberations which were an intrinsic part of the verdict, namely, expression of opinion on weight to be given testimony. There is no suggestion of extrinsic misconduct of any juror, no claim of personal knowledge on the part of any juror or no indication of outside influence as was true in cases relied on by plaintiff. Human nature, being what it is, if every wild expression of opinion made in a jury room in the throes of hammering out a verdict could be made the basis for retrial jury verdicts could seldom be preserved. Such inquiries into the validity of jury verdicts, based on mental processes of the jurors, are foreclosed in Kansas, formerly by case law, now by statute. [Citation omitted.]" 197 Kan. at 523.
As a result, our Supreme Court found no prejudicial error requiring reversal.
Under Brown, not all statements made by other jurors are admissible under K.S.A. 60-444(a). Particularly, those statements that involve an opinion of the other jurors are inadmissible because they are evidence of mental processes. The State contends that the statements in this case are similar to those in Brown. It seems that the State is correct. The statement of which Johnson complains appears to be an opinion on the part of a juror as to Johnson's previous conduct. There is no indication in the affidavit that the offending juror discussed a specific situation involving Johnson or gave any specific facts of Johnson previously drinking and driving. The statement is similar to those statements in Brown as it involved the subjective thought of the juror.
Nevertheless, it is unnecessary to determine whether the juror's statement complained of here was inadmissible under K.S.A. 60-441 because the record establishes that Johnson has not shown that he was prejudiced by the juror's statement. In denying Johnson's motion for a new trial based on juror misconduct, the trial court determined that the evidence in the juror's affidavits did not rise to the level of what is required for a new trial. Essentially, the trial court jumped straight to the prejudice prong and determined that the conduct did not prejudice Johnson's right to a fair trial.
Johnson cites no case where a new trial was granted based on a juror's statements similar to the statement made in this case. Instead, Johnson attempts to compare the statement made in this case to the presentation of impermissible prior bad acts evidence under K.S.A. 60-455 to the jury during trial. Nevertheless, Johnson provides no authority for this flawed analogy.
Moreover, the admission of prior bad acts evidence under K.S.A. 60-455 and the statement that occurred during jury deliberations in this case are not capable of comparison. Prior bad acts evidence under K.S.A. 60-455 is presented to the jury during trial. The jury is then instructed to consider the K.S.A. 60-455 evidence for a certain purpose in reaching its verdict. See State v. Gunby, 282 Kan. 39, Syl. ¶ 3, 144 P.3d 647 (2006) (To avoid error in the admission of K.S.A. 60-455 evidence, the trial court must give a limiting instruction informing the jury of the specific purpose for admission.).
On the other hand, jurors' statements are not evidence presented in the case, and a jury is instructed to decide the case on the evidence presented at trial. In this case, the jury was specifically instructed about the evidence it could consider in its deliberations: "In your fact finding you should consider and weigh everything admitted into evidence. This includes testimony of witnesses, admissions or stipulations of the parties, and any admitted exhibits. You must disregard any testimony or exhibit which I did not admit into evidence." Finally, the jury was instructed that its verdict "must be founded entirely upon the evidence admitted and the law as given in these instructions." "It is well established that juries are presumed to have followed the instructions given by the trial court." State v. Rice, 273 Kan. 870, 873, 46 P.3d 1155 (2002). As a result, Johnson's attempted analogy between prior bad acts evidence under K.S.A. 60-455 and the juror's statement in this case fails.
Here, the offending juror's statement that "this was not Randy's 1st time and he was about due for the charge" does not refer to extrinsic evidence of any particular facts. Although not specifically mentioned in Johnson's appellate brief, it should be pointed out that in another affidavit, one of the jurors stated that during deliberations, there were "[a] lot of comments about Randy, like 'We all know how Randy is.' And that if the police say he was drunk, then he was drunk." Nevertheless, there is no mention in the affidavits that any juror had specific knowledge of a prior DUI incident involving Johnson or that a specific prior DUI incident was discussed in the jury room. All that Johnson has established in this case is that there were general statements made that "this was not Randy's 1st time" and "[w]e all know how Randy is."
As Judge Learned Hand stated in Jorgensen v. York Ice Machinery Corporation, 160 F.2d 432, 435 (2d Cir.), cert. denied 332 U.S. 764 (1947):
"[I]t would be impracticable to impose the counsel of absolute perfection that no verdict shall stand, unless every juror has been entirely without bias, and has based his vote only upon evidence he has heard in court. It is doubtful whether more than one in a hundred verdicts would stand such a test; and although absolute justice may require as much, the impossibility of achieving it has induced judges to take a middle course, for they have recognized that the institution could not otherwise survive; they would become Penelopes, forever engaged in unravelling the webs they wove. Like much else in human affairs, its defects are so deeply enmeshed in the system that wholly to disentangle them would quite kill it."
In the present case, it is apparent that the offending juror's statement that "this was not Randy's 1st time and he was about due for the charge" concerned only a very small part of the jury's deliberation. The juror who supplied the affidavit made no further reference to the statement in her affidavit.
In addition, the offending juror did not explain what the juror meant when the juror stated that "this was not Randy's 1st time and he was about due for the charge." Did the juror mean that this was not Randy's first time attempting to drive home after a night of drinking? Or did the juror mean that this was not the first time that the police had stopped Randy for suspicion of DUI, but before the police never had sufficient evidence to charge Randy with DUI?
Further, the juror's statement that "he [Randy] was about due for the charge" was a mere opinion. It was not a fact. Whatever factual content that the other jurors gave to the offending juror's statement had to be supplied from their own speculation of what the offending juror's statement meant rather than from the statement itself. Finally, even if we were to accept Randy's characterization that the offending juror's statement referred to Randy drinking and driving on a previous occasion, there is no logical force in the statement tending to show that Randy was guilty of anything. Indeed, drinking and then driving is not illegal per se in Kansas; it is only driving with a certain blood alcohol concentration and driving while intoxicated to the extent that the driver cannot drive safely that are illegal under Kansas law. See 8-1567(a); State v. Arehart, 19 Kan. App. 2d 879, 882, 878 P.2d 227 (1994).
The cases where our Supreme Court has found prejudicial juror misconduct have included the introduction of objective evidence into deliberations that was not presented at trial. For example, our Supreme Court has found prejudicial juror misconduct where several jurors visited the scene of a collision and measured distances, Kaminski v. Kansas City Public Service Co., 175 Kan. 137, 259 P.2d 207 (1953); and where one juror used a slide rule to determine the point of impact and other computations, Barajas v. Sonders, 193 Kan. 273, 392 P.2d 849 (1964). The extraneous evidence introduced in those cases was capable of corroboration and did not rest solely in a juror's subjective thoughts.
The State maintains that the offending jurors' statements in this case are even further removed from being statements of fact than those made in Cook, 281 Kan. 961. There, the defendant had presented an affidavit from a juror which stated: "During deliberations in this case, I heard another juror say that this case was a retrial. That juror also said that [the defendant] had been previously convicted of that same crime in the first trial." 281 Kan. at 966-67. Our Supreme Court held that the defendant was unable to show prejudice and found no abuse of discretion in the trial court's decision to deny the defendant's motion to recall the jury.
In reaching its determination in Cook, our Supreme Court discussed its decision in State v. Farrar, 103 Kan. 774, 176 Pac. 987 (1919). In Farrar, the defendant, in a motion for a new trial, had presented evidence that during deliberations one or more jurors had stated that the defendant had been convicted of first-degree murder at a previous trial. Determining that prejudice to the defendant had not been shown, our Supreme Court stated:
"A statement of the nature of the verdict at a former trial is not evidential. The fact stated adds nothing to the evidence respecting any contested issue. It may not even be interesting. It may be a matter of common knowledge. It does not naturally or necessarily tend to corrupt the deliberations of a jury, presumably regardful of their oaths and the instructions given by the court, and in any given instance it is the function of the trial court to determine whether or not it probably subverted their integrity and vitiated their verdict. In this instance this court agrees with the trial court that it is highly improbable the extraneous remarks influenced the jury to return an unwarranted verdict." 103 Kan. at 777.
As a result, our Supreme Court determined that a new trial was not warranted.
The offending jurors' vague statements in this case do not even rise to the level of those in Cook and Farrar. There were no statements of specific fact concerning Johnson's past conduct. As in Farrar, the juror's statements would not naturally or necessarily tend to corrupt the deliberations of a jury, presumably regardful of its oaths and the instructions given by the court. Johnson has not shown that the offending jurors' statements substantially prejudiced his right to a fair trial. The trial court was correct in its determination that the offending jurors' statements in this case do not rise to the level of warranting a new trial. As a result, there is no abuse of discretion in the trial court's decision.
II. Did the trial court fail to properly respond to a jury question?
Next, Johnson argues that the trial court failed to completely respond to the jury's question about the consequences of a hung jury.
K.S.A. 22-3420(3), which governs a jury's request for additional information after the start of deliberations, states:
"After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney."
A trial court's decision to respond to a jury's request for additional information during deliberations is reviewed for an abuse of discretion. State v. Murdock, 286 Kan. 661, 680, 187 P.3d 1267 (2008). A trial court's decision to provide additional instruction to the jury when a question is submitted during deliberations will be upheld as long as the additional instruction is not coercive or otherwise objectionable. In other words, the court must determine whether the defendant's rights were prejudiced by the trial court's action in giving the instruction. Murdock, 286 Kan. at 680.
During deliberations, the jurors in this case submitted the following question: "What happens if we can't come to a unanimous verdict?" The trial judge initially responded as follows: "What happens is I declare a hung jury and you go home . . . ." The trial judge then asked the jury if it was deadlocked and further instructed the jury as follows:
"You've obviously been talking about this, working on it pretty hard for, I don't know, a couple hours. Is it your impression that more time is not going to help any, today you're basically helplessly deadlocked? Does that appear to be the case or not? (Pause)
"Let me put it this way: If I have you go back to the jury room and discuss that among yourselves, you can report to me whether you feel you're hopelessly deadlocked at that point. If you feel you are, let me know that. If you – if you want to go home and come back in the morning, let me know that. If you want to continue on a while longer tonight, let me know that . . . But if you've discussed it and tried and are unable to come to a verdict simply tell me that and we'll go with that, okay? . . . I'll have you go back to the jury room, discuss what I have just ran through. Let me know what you want to do, okay?"
Thereafter, the jury asked for and was read some testimony presented at trial from Davidson. Approximately 53 minutes after the court instructed the jury on the unanimous verdict question, the jury returned a verdict of guilty.
Johnson contends that in responding to the jury's question, the trial court failed to address the legal consequences of an inability to agree on a verdict. Johnson maintains that the trial court should have instructed the jury in accordance with a portion of PIK Crim. 3d 68.12, which states: "If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charge(s) to a different jury at a later time."
Our Supreme Court has disapproved of the giving of PIK Crim. 3d 68.12 after jury deliberations are in progress. See State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003); State v. Struzik,