IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 87,558
STATE OF KANSAS,
Appellee,
v.
AHMON MANN,
Appellant.
SYLLABUS BY THE COURT
1. In any criminal action in which eyewitness identification is a critical part of the prosecution's case and there is serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony.
2. Where the witness personally knows the individual being identified, the cautionary eyewitness identification instruction is not necessary and the accuracy of the identification can be sufficiently challenged through cross-examination.
3. The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant's voluntary absence after the trial has been commenced in such person's presence shall not prevent continuing the trial to and including the return of the verdict. K.S.A. 2001 Supp. 22-3405(1).
4. After the jurors have 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 or she voluntarily absents himself or herself, and his or her counsel and after notice to the prosecuting attorney. K.S.A. 22-3420(3).
5. It is well settled that a conference between a trial judge and a juror is a critical stage of the trial at which a criminal defendant has a constitutional right to be present.
6. An attorney cannot waive a defendant's right to be present at a critical stage of the proceeding without first discussing the matter with the defendant.
7. The defendant's constitutional right to be present extends only to those stages of the criminal proceeding that are critical to the outcome and at which the defendant's presence would contribute to the fairness of the procedure.
8. Reversible error generally cannot be based upon misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. If, however, the prosecutor's statements violate a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection.
9. Analysis of the effect of a prosecutor's alleged improper remarks in closing argument is a two-step process. First, it must be determined whether the remarks are outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in both the language and in the manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, it must be determined whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.
10. Voluntary manslaughter is a lesser included offense of first-degree murder. Where there is substantial evidence to support a conviction for a lesser offense, the trial judge is required to instruct on the lesser offense.
11. A violation of statutory and constitutional rights to a speedy trial is a question of law over which this court has unlimited review.
12. The statutory right to speedy trial does not apply to criminal defendants who are held in custody for any reason other than the subject criminal charge.
Appeal from Wyandotte district court; THOMAS L. BOEDING, judge. Opinion filed October 25, 2002. Affirmed.
J. Michael Redmon, of Kansas City, argued the cause and was on the brief for appellant.
Terra D. Morehead, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J.: Appellant Ahmon Mann appeals his conviction for first-degree murder. Mann was sentenced to life in prison with no possibility of parole for 25 years. Mann claims that (1) the trial court failed to instruct the jury on eyewitness identification; (2) he was denied his constitutional right to be present at critical stages of his trial; (3) the prosecutor engaged in reversible prosecutorial misconduct; (4) the trial court failed to instruct the jury on the lesser offense of voluntary manslaughter; (5) his trial counsel was so ineffective as to deny him a fair trial; and (6) he was denied his statutory right to a speedy trial.
At 10:11 p.m. on April 17, 2000, Officer Conrad Martin received a call that shots had been fired from a car. Upon arriving at the scene, Officer Martin discovered a car in the intersection of 40th and Minnie with its headlights on and its front and rear passenger doors open. Robert Diaz was sitting on the driver's side of the car. Diaz had suffered multiple gunshot wounds and was dead. The car reportedly had sat in the intersection for 10 minutes with the doors open and lights on before the police were called.
Discussions with two women, who desired to remain anonymous, caused police to look for Loren Artis. The two women had provided a description of Artis and an address that he frequented.
On April 20, 2000, police located Artis with the help of Dorothy Dean, a woman who had taken Artis in and had allowed him to stay with her on occasion. After an interview with Artis, police arrested Ahmon Mann.
Mann gave a taped statement to the police after his arrest. Mann told police that at the time of the shooting he had been at Walter Coleman's house waiting for Coleman to return home. Coleman lived a few houses from where Diaz' car was found. Mann was charged with first-degree premeditated murder in violation of K.S.A. 21-3401. A 5-day jury trial was held beginning January 29, 2001.
Artis testified that on the evening of the shooting, while selling narcotics on the corner of 40th and Minnie, he saw a car approach the intersection. Artis observed Robert Diaz driving the vehicle, Mann ("Duke") sitting in the front passenger seat, and Reggie Golden ("Red Man") sitting in the back passenger side seat. The streetlight at the intersection allowed Artis to see the vehicle's occupants. The men in the car looked to be having a conversation and were not observably fighting.
The car stopped at the intersection's stop sign and moved forward into the intersection. Artis saw Mann reach for something towards his waist. Mann and Diaz struggled briefly. Artis then saw a couple of flashes and heard gunshots. Artis testified that he did not see a gun. Mann and Golden then jumped out of the car, leaving the car doors open, and ran away. Mann was wearing a black or blue jumpsuit and Golden was wearing a red jacket and sky blue pants. Artis then approached the car and saw the driver's window was shattered and Diaz, who appeared to be dead, leaning over in the seat. Artis ran to Dorothy Dean's house, but did not tell anyone what he observed because he was scared.
While outside Dean's house, Artis saw Walter Coleman sitting in a vehicle. Coleman told Artis that he was waiting for Mann, who Coleman thought was visiting Patrice Seawood, Dean's next door neighbor and the mother of Mann's daughter. Artis later observed Mann come out of and from around the side of Seawood's house and get into Coleman's vehicle. The vehicle then left the area.
Artis knew Mann and Golden from the neighborhood and had had occasion to speak to them. Artis testified that the different drug selling groups within the neighborhood would occasionally argue about customers or territory. Artis claimed that he was not involved in any arguments or feuds with Mann or Golden.
Diaz had arrived home at approximately 9:15 p.m. that evening. Both Ernesta Diaz, his wife, and Ernesta's mother, Annie McKelvy, were home at the time. Approximately 5 minutes later, there was a knock on the door. Annie observed a young man she did not recognize at the door and assumed the man was there to see Diaz. Diaz opened the door, spoke to the man, then went into the bedroom to talk with Ernesta. Diaz asked Ernesta for $2 to go to the store, took the $2, and left the house. At approximately midnight, Ernesta and Annie were informed by three men, one of whom was Walter Coleman, that Diaz was dead.
Diaz had suffered 7 gunshot wounds to the body. Four of the wounds were to the right side of his head and neck, with 3 of the 4 located behind the right ear. The wounds behind the right ear were intermediate shots, inflicted at a distance of somewhere farther than contact but closer than 2 to 3 feet. The shot to the neck area was inflicted at closer range. Erik Mitchell, a forensic pathologist, testified that he was unable to determine whether the shooter was in the front or back seat at the time of the shooting. Mitchell also testified that based upon the positioning of the wounds it was unlikely that the victim struggled with the shooter.
Five .380 caliber cartridge cases, all fired from the same weapon, were recovered from both the front and back seats of Diaz' car. Sally Grew, a firearm and tool marks examiner with the Federal Bureau of Investigation (FBI), testified that she did not believe it unusual that the cartridge cases were found in both the front and back seats. She testified she was unable to determine the location of the shooter from the placement of the cases.
The broken glass behind the car indicated that the car rolled slightly after the firing of some shots. Latent prints recovered from the car's passenger side did not match those of Diaz, Mann, or Golden. No other prints were recovered from the scene. Police recovered a blue jumpsuit from Seawood's house. Golden's red jacket was also recovered. No traces of blood were found on these items.
Walter Coleman was on his way home that evening from the Osage County jail. When Coleman arrived in town, the shooting had already occurred and there were police cars at the scene. According to Coleman's mother, Joyce Winfield, Mann was waiting for Coleman when Coleman arrived. Winfield originally told police that two men had come to visit Coleman that night.
Bruce Wilson ("Little B"), Golden, and Mann were close friends, often referring to themselves as brothers. When Little B's sister was killed in September 1999, Little B and Mann had t-shirts made with her picture. Diaz was implicated in Little B's sister's murder, but the charges against him were later dismissed. Diaz was incarcerated from October 1999 to March 13, 2000. These dates closely coincide with Little B's sister's murder and Diaz' subsequent murder.
Golden testified that on the day of the shooting he wore a dark blue jumpsuit and a red jacket. Golden had previously told police he had been wearing light blue pants. Golden got the nickname "Red Man" because he frequently wore a red jacket. Golden first testified that he saw Diaz early on the morning of the shooting, but that he did not see him the rest of the day or that evening. Golden later testified that around noon he had tried to buy marijuana from Diaz while Diaz was in Diaz' vehicle. Golden stated that he did not find out about the shooting until later when his girlfriend Danella told him. Golden saw Mann on and off throughout the day of the shooting, meeting to smoke cigarettes or do drugs. He denied seeing Little B that day. Mann had told Golden that that evening he would be waiting for Walter Coleman to return home from jail. Mann had given Coleman's mother the money for Coleman's bond.
A video surveillance tape showed Diaz purchasing beer from a liquor store at approximately 9:39 p.m. that evening. The surveillance video from the attached convenience store showed Golden in that store at 9:37 p.m. The two stores share the same parking lot. Annie McKelvy identified Golden from the surveillance video photo as the man that had come to the door that night and spoke with Diaz. Golden admitted being in the convenience store, but denied seeing Diaz. Golden also admitted that he was in the parking lot near Diaz' residence just minutes before going to the convenience store but denied having gone to Diaz' house that evening.
Golden was also charged with the first-degree murder of Diaz. However, the charges against him were dismissed following the preliminary examination. At trial, Golden testified that he and Mann were in the business of selling drugs together; that there had been a dispute over territories with other sellers; that he and Mann were involved in a dispute with Jason, Dorothy Dean's son; and that Artis was a good friend of Jason and had participated in the altercations over territory.
Approximately 30 minutes to an hour after Telisha Grant, a friend of Mann's, learned of the shooting, Danella, Golden's girlfriend, told Grant that Mann would pay Grant $20 to take Little B home. Grant agreed. Little B came over to Grant's house and Grant drove him home.
Patrice Seawood testified that after she arrived home from work that evening at approximately 11 p.m., she spoke to Mann on the phone. Mann told her he was at Walter Coleman's house. Seawood was unaware of Mann having any disagreements with Diaz, but she knew that Mann had had disagreements with Jason in the past.
Deborah Allen testified that when she arrived home between 10:05 and 10:15 p.m. that evening, she noticed Mann standing in front of Walter Coleman's house. A few minutes later, Allen saw Diaz's car drive down the street.
Mann testified that he went to Walter Coleman's house between 9:30 and 10 that night to wait for Coleman. While outside Coleman's house, he saw the woman across the street (Deborah Allen) arrive home. While waiting he also saw emergency vehicles approaching the area of where Diaz was shot and observed the streets being blocked off by police. When Coleman arrived, he informed Mann that someone had been killed up the street. Mann testified that the last time he had seen Diaz and Diaz' car was that morning when he purchased marijuana from Diaz. Mann had told the police that he had purchased marijuana from Diaz around noon that day. Mann denied having earlier told the police that he had seen Diaz in Diaz' vehicle. A receipt showed Diaz' vehicle was dropped off for repairs at 8:18 on the morning of the shooting and was released at 5:06 that evening.
Mann admitted that he had often had arguments with Jason, Artis, and others over drug territory in the past, but claimed he had not associated or had any disputes with Diaz. He denied having any vendetta against Diaz because of Little B's sister's death, testifying that he was not aware at the time of the shooting that Diaz had been charged in her death. Mann admitted that he was wearing the jumpsuit that was tested for blood stains, but stated that that was what he wore nearly everyday. Mann denied seeing Little B the night of the shooting.
Krystal King, a friend of Mann's, testified that she saw Mann, Golden, and Little B in the parking lot outside Diaz' house the night before the shooting. Previously, King had told police that she had seen Mann, Golden, and Little B in the parking lot at approximately 9 p.m. on the night of the shooting. King testified that the date in her statement to the police was incorrect and had been suggested by the police officers conducting the interview. King stated that Mann had called her after the evening news the night of the murder to tell her about the incident. Mann told King that "police were everywhere and some dude got shot."
The jury found Mann guilty of first-degree murder. Mann was sentenced to life with no eligibility of parole for 25 years. Mann appealed his conviction. This court has jurisdiction over the appeal pursuant to K.S.A. 22-3601(b)(1).
EYEWITNESS IDENTIFICATION INSTRUCTION
Although defense counsel did not request an eyewitness identification instruction at trial, Mann now asserts that the trial judge erred in failing to give the instruction. Kansas law provides that no party may assign error in the giving or failing to give an instruction absent a specific objection being lodged prior to the jury retiring to consider its verdict unless the instruction or failure to give the instruction is clearly erroneous. K.S.A. 2001 Supp. 22-3414(3). The reviewing court must be firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred for the failure to instruct to be clearly erroneous. State v. Saenz, 271 Kan. 339, 346, 22 P.3d 151 (2001); State v. Scott, 271 Kan. 103, 110-11, 21 P.3d 516, cert. denied __ U.S. __, 151 L. Ed. 2d 550 (2001).
This court has stated that in any criminal action in which eyewitness identification is a critical part of the prosecution's case and there is serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony. Saenz, 271 Kan. at 353; State v. Richmond, 258 Kan. 449, 455, 904 P.2d 974 (1995); State v. Warren, 230 Kan. 385, 397, 635 P.2d 1236 (1981); see also State v. Gaines, 260 Kan. 752, 758, 926 P.2d 641 (1996) (PIK Crim. 3d 52.20 promulgated as direct result of decision in Warren).
Mann's defense was that he was not in Diaz' car at the time of the shooting. Artis was the sole eyewitness to the crime, all other evidence was circumstantial. Artis' identification of Mann was critical to the State's case. Therefore, Mann contends the following instruction should have been given:
"The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove (he)(she) has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
"1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting;
"2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence;
"3. Whether the witness had observed the defendant(s) on earlier occasions;
"4. Whether a significant amount of time elapsed between the crime charged and any later identification;
"5. Whether the witness ever failed to identify the defendant(s) or made any inconsistent identification;
"6. The degree of certainty demonstrated by the witness at the time of any identification of the accused; and
"7. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification." PIK Crim. 3d 52.20.
In support of his claim that the requirements for giving an instruction on eyewitness identification were met in this case, Mann sets forth approximately 10 factual situations that question the ability of Artis to make an identification of the shooter.
The State contends an instruction on eyewitness identification was not required because Artis was personally acquainted with the defendant. In support of this assertion, the State relies upon Saenz, 271 Kan. 339. In Saenz, this court recognized that the factors set forth in Warren and contained in PIK Crim. 3d 52.20 contemplated that the witness did not personally know the defendant. The witness in Saenz had seen the defendant earlier in the evening and knew the defendant personally. The Saenz court held that since the witness' reliability was not questionable, the failure to give the instruction was not clearly erroneous. 271 Kan. at 354. Just as in Saenz, Artis personally knew both Mann and Golden.
In addition to the fact Artis personally knew Mann, Artis' testimony as to the events of the shooting was supported by the testimony of officers arriving at and processing the scene. Artis testified that he was at a location that other testimony confirms was well-lit. Artis' identification of Mann occurred only 3 days after the incident. Artis accurately identified the clothing wore by both Mann, and arguably Golden, on the evening of the shooting. Artis testified he was positive Mann was the shooter. The defense had the opportunity to point out to the jury any discrepancies in Artis' previous statements, as well as any motive Artis might have had in making a misidentification.
The reliability of the identification and credibility of an eyewitness are not the same thing. The jury was instructed as follows regarding weight and credibility:
"It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified."
Artis' testimony does give rise to questions as to Artis' credibility. Furthermore, testimony indicated that Artis may have had a vested interest in implicating Mann and Golden in the murder based upon disagreements over drug territory. The questionable credibility of a witness, however, is not a factor in giving an eyewitness identification instruction.
Under these circumstances, an instruction on eyewitness identification was not necessary and would not have changed the result of the trial. The trial court's failure to give the instruction was not erroneous.
RIGHT TO BE PRESENT AT CRITICAL STAGES OF TRIAL
Mann contends he was denied his constitutional right to be present during critical stages of his trial. He cites three separate occasions during the trial where communications occurred outside his presence. The State contends these incidents were either harmless or did not constitute ex parte communications.
A defendant's constitutional right to be present during criminal proceedings stems from the Sixth Amendment to the United States Constitution right to confront witnesses and the Fifth and Fourteenth Amendments to the United States Constitution due process right to attend critical stages of a criminal proceeding in which the defendant is not actually confronting witnesses or evidence against him or her. State v. Calderon, 270 Kan. 241, 245, 13 P.3d 871 (2000); State v. Bowser, 252 Kan. 582, 586, 847 P.2d 1231 (1993). The due process right to be present only exists to the extent that a fair and just hearing would be thwarted by the defendant's absence. Calderon, 270 Kan. at 245; Bowser, 252 Kan. at 586.
In addition to a defendant's constitutional right to be present during critical stages of the trial, the defendant's statutory right to be present is set forth in K.S.A. 2001 Supp. 22-3405(1), which states:
"The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant's voluntary absence after the trial has been commenced in such person's presence shall not prevent continuing the trial to and including the return of the verdict."
K.S.A. 22-3420(3) further provides:
"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 the 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."
Mann first complains of an incident which occurred on the third day of the trial, when the trial judge had various conversations with four jurors on the record in chambers and outside the presence of either counsel or the defendant. The meetings occurred after two female jurors reported to the bailiff that a male spectator, sitting on the defendant's side of the courtroom, had followed them outside during breaks and had stared or glared at them frequently during the course of the trial. The trial judge reported the jurors' complaint to both counsel who agreed that the judge should speak to the two reporting jurors outside the presence of counsel.
When speaking with the two female jurors the trial judge discovered that the jurors felt uncomfortable because a bald and somewhat heavy-set African-American male had been glaring at them while they were in the jury box during the previous 2 days of the trial. During a break, the two jurors had also overheard the man commenting on his cellular phone about the case and about how "they better not get anything on him because they don't have fingerprints." The women did not have an opinion on whether they believed the man was acting in a deliberate manner. The judge informed the two jurors that the man was the defendant's uncle and that defense counsel would speak with the man and tell him to stop. Both jurors stated to the judge that they would be able to be fair and impartial and make a decision based solely on the evidence and the law. They stated that the feeling of uncomfortableness regarding this man had only been discussed between the two of them and two other female jurors.
Following the same procedure, the judge then spoke with the other two female jurors who had been identified. Both jurors stated that they would be able to remain fair and impartial. These jurors were also informed that the man was the defendant's uncle and that defense counsel would speak to the man and tell him to stop.
The judge then reported the conversations he had with the four jurors to counsel and to the defendant, outside the jury's presence. The State agreed to continue with the trial. Defense counsel expressed concern with the ability of these four jurors to carry on in a fair and impartial manner. The judge offered to allow defense counsel to question each of the four jurors individually. Defense counsel declined, expressing concern that further inquiry might worsen the matter. Defense counsel noted that counsel had only consented to the judge speaking with two jurors.
The judge's recorded conversations with the four jurors were read to the defendant and both counsel. After speaking with Mann, defense counsel moved for a mistrial, contending that the fact this issue was brought to the court's attention indicated a problem with the jurors' "line of thinking" and indicated that they were not paying attention to the evidence but to the gallery. The judge denied the motion, finding that the jurors had merely reported something that made them feel uncomfortable and had indicated that they could remain fair and impartial and that the incident would not affect their decision in this case. The judge also noted that in addition to their verbal statements, the demeanor of the jurors also indicated that they would judge the case based on the evidence and not on this event.
It is well settled that a conference between a trial judge and a juror is a critical stage of the trial at which a criminal defendant has a constitutional right to be present. State v. Fulton, 269 Kan. 835, 844, 9 P.3d 18 (2000); State v. High, 260 Kan. 480, Syl. ¶ 2, 922 P.2d 430 (1996). Although both counsel consented to the judge speaking with the two reporting jurors, this consent did not include the judge's additional conversation with the other two jurors. Additionally, and most importantly, the record does not indicate that Mann waived his right to be present at either conversation. An attorney cannot waive a defendant's right to be present at a critical stage of the proceeding without first discussing the matter with the defendant. Crease v. State, 252 Kan. 326, Syl. ¶ 4, 845 P.2d 27 (1993). Thus, it was error for the trial judge to have conducted these conversations with jurors outside Mann's presence. The question is whether this error was harmless.
In Calderon, this court addressed the issue of whether harmless error could prevent reversal once a defendant's constitutional right to be present during a critical stage of the proceeding had been violated. Calderon was found to have been denied his constitutional right to be present at a critical stage when the trial court ordered the interpreter, necessary for Calderon to understand the proceedings, not to translate closing arguments for Calderon. The court examined the distinction between trial errors, which are subject to a harmless error analysis, and structural errors, which require a new trial. In reversing Calderon's conviction, the majority of the court concluded that the failure to translate the closing arguments implicated a basic consideration of fairness and that a harmless error analysis was inappropriate under the circumstances. 270 Kan. at 253.
The harmless error analysis was applied, however, in State v. Lopez, 271 Kan. 119, 134, 22 P.3d 1040 (2001). In Lopez, there were two instances in which the defendant contended he was denied his constitutional right to be present at a critical stage of the trial. The first instance involved the judge's conversation with counsel outside his presence prior to voir dire regarding the qualifications of potential jurors. The Lopez court found there was no error because the conference did not constitute a stage of trial under K.S.A. 2001 Supp. 22-3405(1). 271 Kan. at 130-31. The second instance occurred during voir dire on the second day of trial when the judge, both counsel, and a juror convened outside the defendant's presence. Because the record did not indicate Lopez had waived his right to be present and the conversation involved questioning of a potential jury member, error was found to exist. The conversation involved questioning of the juror regarding a report that he might know a member of the victim's family. The juror denied knowing s