State v. Burris

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NOT DESIGNATED FOR PUBLICATION

No. 118,053

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CARL M. BURRIS,
Appellant.

MEMORANDUM OPINION


Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed May 11, 2018. Affirmed
in part, vacated in part, and remanded with directions.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., PIERRON and STANDRIDGE, JJ.

PER CURIAM: Carl M. Burris was convicted of aiding and abetting possession with
intent to distribute a controlled substance. He appeals and alleges the State committed
prosecutorial error. He also appeals the district court's assessment of Board of Indigents'
Defense Services (BIDS) fees without considering his financial resources.

On August 24, 2016, Ronnie Gosson called the Clay County Sheriff's Department
to report that Carl M. Burris and Katie Herrera were on their way to Clay Center with
drugs in a truck. Gosson told Deputy Jeff Browne there were syringes under the
passenger seat of the truck and drugs in Herrera's purse. Browne believed they were
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going to town to sell the drugs. Browne had previous knowledge of Herrera's
involvement with drugs. Browne drove to the county line to intercept the truck. When he
did not see the truck, he returned to Clay Center and drove by Burris' residence. Dispatch
advised him of a second call alleging that Herrera was attempting to sell
methamphetamines in the courthouse square. As Brown passed the residence, Samantha
Burris, Burris' wife, saw him. He motioned to her and she followed him.

Deputy Browne saw Burris' truck on the north side of the courthouse square.
Browne approached Burris, who was sitting in his truck, and informed him of the reports
that there were drugs in the truck. Burris said he was at the courthouse for Herrera to
obtain a protection from abuse order against her husband. When Browne asked if he
could search the truck, Burris stated that he did not believe there was anything under the
seat. At that point, Samantha reached the passenger door and listened through the open
window. Browne repeated his request and Burris stated that he wanted to check first. As
Burris walked to the passenger side of the vehicle, Samantha opened the door and looked
under the passenger seat. Browne testified he could see Samantha's hands before she
opened the door and knew she did not have anything in her hands when she looked in the
truck. Samantha stepped away from the truck and told Burris not to let Browne search.
She testified that she could not see anything, but she had felt a baggie when she put her
hand under the seat. Burris then looked under the seat and revoked his consent for
Browne to search the truck.

Undersheriff Jim Bogart, the Clay County Sheriff's Department canine handler,
arrived and walked the canine around Burris' truck. After the canine indicated there were
drugs in the vehicle, Deputy Browne searched the truck. Under the passenger seat, he
found a clear zipper baggie with three syringes loaded with a clear liquid and one empty
syringe. Browne testified that based on his training and experience, loaded syringes are
packaged for sale and it is not an efficient way to carry drugs because the syringe plunger
could easily be depressed, wasting the substance.
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Deputy Browne subsequently arrested Burris for possession of methamphetamines
with intent to distribute. Small amounts of the liquid from each syringe were sent to the
Kansas Bureau of Investigation (KBI) for testing. KBI forensic scientist Beth Royel
testified that methamphetamines were detected in each of the samples.

Deputy Browne interviewed Gosson who stated Samantha had called him Tuesday
night while she, Burris, and Herrera cleaned out the Burris' house in Clay Center.
Samantha told Gosson that Katie had placed the syringes under the passenger seat of the
truck. Samantha later saw the syringes as she loaded items into the truck. Gosson
believed that Burris and Herrera were returning to Miltonvale on Tuesday evening so he
called the Cloud County Sheriff's Department to report methamphetamines were in the
vehicle.

Samantha called Gosson on Wednesday to let him know she was meeting Burris
and Herrera before driving back to Clay Center. Though she did not mention the drugs,
Gosson called the Clay County Sheriff's Department based on his assumption that the
syringes were still in the truck. Gosson told Deputy Browne that Herrera has "been doing
this forever." He did not believe that Samantha wanted to get Herrera or Burris in trouble,
but she just wanted to put an end to the drug involvement. Gosson decided to call law
enforcement because he was "pissed" that Herrera has been "doing this shit forever" and
he blamed her for Samantha and Burris separating after 30 years of marriage. He did not
believe that Samantha planted the syringes and told Browne that he had arrested the right
people.

During trial, Gosson testified that Burris did not use drugs. He blamed Herrera,
alleging she did not "want to go down by herself, she want[ed] to take other people down
with her." Despite having told Browne that he had arrested the right people, Gosson
believed that only Herrera should have been arrested because she had placed the
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methamphetamines in the truck. He further testified that both Samantha and her friend,
Rhonda, had called him on the night of August 23, 2016, claiming Herrera told them she
had planted the syringes under the passenger seat while Burris was asleep. Samantha later
contradicted Gosson's testimony by claiming that she could not have called Gosson on
the 23rd because she did not have access to a phone.

In the course of the investigation, Burris provided multiple theories as to how the
methamphetamines got into his truck. Initially, he blamed Samantha for planting the
syringes. However, his theory changed with each call to Deputy Browne. Browne
followed up on each theory but found no evidence to support any of them. Samantha
acknowledged that Burris blamed her, but she denied the allegations. She testified that
despite Burris having an affair with Herrera, she had no ill will toward them. Although
she and Burris had separated, they maintained a good relationship and spent time together
regularly as they co-parented their young son.

Gosson and Samantha both testified that Burris did not use or sell drugs. However,
Samantha testified that she was aware of Burris previously testifying he drove Herrera to
Riley County to purchase drugs. She explained that she and Burris had previously worked
as confidential informants for law enforcement. She testified they had been involved with
law enforcement in Clay County, Riley County, and Cloud County. However, they had
not been involved in any cases that had gone to court. She also reported that she and
Burris had worked for an FBI agent in Arkansas.

Burris testified that when he took Herrera to Riley County to purchase drugs, he
did so to help law enforcement catch the person who was going to sell her pills. Although
they never made contact with the seller, Burris provided the location information to
Officer Melvin with the Riley County Police Department. He further stated that even
though law enforcement was not always involved in his transactions, his primary
objective was to gather information to pass on to law enforcement.
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In closing argument, the State addressed the inconsistency from Gosson's recorded
interview to his testimony. Acknowledging Burris' claim of working as an informant, the
State also encouraged the jurors to use their knowledge of police techniques in
determining whether a law enforcement agency would condone individuals engaging in
buying or selling narcotics without police supervision. The State encouraged the jury to
remember the uncontroverted facts of the case: Browne found Burris in his truck at the
courthouse square with three syringes loaded with methamphetamines under the
passenger seat.

Burris stated multiple times in closing argument that everything goes back to
Samantha. He urged the jurors to consider the specificity with which she provided
information to Gosson. Burris reminded the jury that to find him guilty, it was required to
determine he had knowledge that the syringes were in his truck and he had the intent to
control them. In addressing the allegation that he and Herrera took methamphetamines to
the courthouse square to sell, Burris stated:

"Now, you have to ask yourself, and I think I'm going to offend some of the lady
here, who have big ball to bring drugs to the courthouse which is less than – just around
the corner from the law enforcement building and sell drugs right here at the courthouse?
"You've got to be pretty stupid to do that. The police is right around the corner,
bring drugs to courthouse and approach somebody in courthouse square to sell drugs?
"Who will do that?"

Burris further echoed the statements by Gosson and Samantha that he did not use or sell
drugs, noting that his involvement with drug deals was to gather information for law
enforcement.

In rebuttal, the State partially agreed with Burris' statement about selling drugs at
the courthouse square:
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"[Y]ou've got to be pretty stupid to sell on the courthouse square, or try, but if you read
the [Clay County] Dispatch, you know people have been arrested in this courthouse with
drugs, inside the courthouse.
"Pretty stupid?
"Absolutely.
"Do people who sell and use drugs do stupid stuff?
"I would say by definition. I would say by definition, they do."

The jury found Burris guilty of aiding and abetting possession of a controlled
substance with intent to distribute. Burris polled the jury and all members agreed with the
verdict.

On June 22, 2017, the district court sentenced Burris to 15 months' imprisonment
with the Kansas Department of Corrections with 24 months of postrelease supervision.
Although his criminal history score was I and his offense fell in a border box on the grid,
the district court stated that border boxes are presumptive prison and Burris provided no
reason under the statute to grant the optional nonprison sentence, such as the need for a
treatment program or reformation. When the court assessed fees and costs, it did not
assess the correctional supervision fee, but then assessed the BIDS attorney fees of
$2,800. Burris timely appealed.

We first must determine whether the State committed prosecutorial error by
encouraging the jury to consider facts not in evidence.

Under the modified Sherman standard, the appellate court uses a two-step process
to evaluate claims of prosecutorial error:

"These two steps can and should be simply described as error and prejudice. To
determine whether prosecutorial error has occurred, the appellate court must decide
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whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial. If error is found, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate 'beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed to the verdict.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied, 565 U.S. 1221 (2012). We continue
to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but
when 'analyzing both constitutional and nonconstitutional error, an appellate court need
only address the higher standard of constitutional error.' [Citation omitted.]" State v.
Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

Sherman did not change the assessment of the first-prong; it is clearly improper
for a prosecutor to state facts that are not in evidence. State v. Banks, 306 Kan. 854, 862,
397 P.3d 1195 (2017). However, even if the prosecutor's actions were egregious, reversal
of a criminal conviction is not an appropriate sanction if the actions are determined to
satisfy the constitutional harmless test. Sherman, 305 Kan. at 114.

Burris contends the State committed prosecutorial error by telling the jury "if you
read the Dispatch, you know people have been arrested in this courthouse with drugs,
inside the courthouse." The Clay Center Dispatch is the local newspaper. The State had
not submitted any evidence of drugs sales in the courthouse and no editions of the
newspaper had been admitted into evidence. Burris cites to State v. Hall, 292 Kan. 841,
848, 257 P.3d 272 (2011), in which the court emphasized that prosecutors may draw
reasonable inferences from evidence but may not comment on facts outside the evidence.

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During closing argument, prosecutors must restrict their comments to matters in
evidence. State v. Fisher, 304 Kan. 242, 252, 373 P.3d 781 (2016). Any argument "must
accurately reflect the evidence, accurately state the law, and cannot be 'intended to
inflame the passions or prejudices of the jury or to divert the jury from its duty to decide
the case based on the evidence and the controlling law.'" State v. Raskie, 293 Kan. 906,
917, 269 P.3d 1268 (2012) (quoting State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 [2004]).
Even if the prosecutor's statement was extemporaneous rebuttal to the defense's
argument, it may be prejudicial. State v. Roeder, 300 Kan. 901, 934, 336 P.3d 831 (2014),
cert. denied 135 S. Ct. 2316 (2015) (disavowing language in previous cases that defense
provocation can justify prosecutorial misconduct).

The State admits that the contested statement was ill advised but contends it was a
reasonable inference from the evidence at trial based on Browne's testimony about the
tips received and Burris' closing argument about the stupidity of selling drugs at the
courthouse square. The State was attempting to convey that people possess or sell drugs
anywhere.

The State compares the contested statement to those in State v. Peppers, 294 Kan.
377, 276 P.3d 148 (2012). In Peppers, the witness and defendant had been incarcerated
together in Colorado. To show that he had received the information about the crime from
the defendant, the witness testified that he had very little connection with the state of
Kansas, he had not viewed or read news from Kansas, and people he knew from Kansas
never spoke of a Topeka crime. In closing, the prosecutor expressed that the information
in the witness' testimony was not public knowledge, stating, "If it was in the Topeka
Capital-Journal in '07, we would have seen a copy of it." 294 Kan. at 395. The Kansas
Supreme Court held that, taken in context, the statement about the newspaper as the
prosecutor's explanation of the witness' "logical source" of information included
reasonable inferences based on the evidence in trial. 294 Kan. at 395.

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In Peppers, the statement about the Topeka Capital-Journal was a reasonable
inference because the source of the witness' information was contested during the trial
and the witness specifically testified about not having obtained the information from a
newspaper. The prosecutor used the newspaper reference to show that the information
presented was not public knowledge. Unlike Peppers, the State's comment here was
made to show that people had been arrested for possessing drugs inside the courthouse.
However, no evidence about arrests inside the courthouse had been presented in trial. The
State contends the statement was justified as a reasonable inference because of Browne's
testimony and Burris' closing argument. However, provocation by the defense is not an
excuse for prosecutorial error. Browne's testimony provided that Burris and Herrera went
to the courthouse square to sell methamphetamines, which does not provide a reasonable
inference that others have been arrested inside the courthouse in possession of drugs. The
State's rebuttal presented facts not in evidence and was improper.

When the appellate court determines that an error such as this has occurred, the
State must prove beyond a reasonable doubt that the error did not influence the verdict.
State v. Kahler, 307 Kan. 374, 382, 410 P.3d 105 (2018). The Sherman court noted that
while different courts articulate harmlessness differently, all aim to determine whether
the defendant's due process rights to a fair trial were prejudiced. 305 Kan. 109. In
determining whether the State has shown that there is no reasonable possibility that the
error contributed to the verdict, we must consider all indicators of prejudice, as argued by
the parties. 305 Kan. at 111. With the focus on whether the error affected the verdict, the
strength of the evidence against Burris is secondary to the analysis of whether the
statement affected the verdict. 305 Kan. at 111.

Burris asserts the State's comment was highly prejudicial because a cornerstone of
his defense was that he would not have been so bold as to sell drugs in the courthouse
square, which is "around the corner from the law enforcement building." Alleging that
Samantha had framed him, Burris claimed ignorance of the methamphetamines in his
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truck. At trial, Burris addressed the questionable report of Herrera attempting to sell
drugs, noting that Sherry Reed (the second caller) may not actually exist; that Herrera did
not have any drugs in her possession when she was arrested; and Samantha knew exactly
where the methamphetamines were hidden.

The State acknowledges that even though the fact that it made the improper
remarks as extemporaneous rebuttal does not justify the statements, we may consider that
as a factor. State v. Marshall, 294 Kan. 850, 861, 281 P.3d 1112 (2012). The State further
claims its statement was not prejudicial because: (1) the second jury instruction advised
jurors to disregard any statements by counsel that were not supported by evidence; (2)
most of its closing argument was spent on reviewing the law, evidence, and the jury's
responsibilities; and (3) even without the improper statement, the evidence was sufficient
for a guilty verdict.

The State has failed to provide any legal basis for its assertion that jury
instructions absolve improper comments of prejudice. When a litigant has not adequately
briefed an issue, it is deemed abandoned. State v. Williams, 298 Kan. 1075, 1083, 319
P.3d 528 (2014). "Simply pressing a point without pertinent authority, or without
showing why it is sound despite a lack of supporting authority, is akin to failing to brief
an issue." McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d
68 (2002). However, while the jury instruction does not excuse an improper statement,
we may consider that as a factor in our determination. See State v. Barber, 302 Kan. 367,
383, 353 P.3d 1108 (2015). Further, at all times, prosecutors have the "'responsibility of a
minister of justice and not simply that of an advocate.'" State v. Maestas, 298 Kan. 765,
777, 316 P.3d 724 (2014); see KRPC 3.8 cmt. 1 (2018 Kan. S. Ct. R. 353) (Special
Responsibilities of a Prosecutor). As a minister of justice, ensuring the protection of the
defendant's rights, the State cannot justify an improper statement by balancing it with the
amount of proper statements made.

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The State correctly contends that without the improper statement, there was
sufficient evidence that the jury would have reached the same verdict. During closing
arguments, Burris claimed it would require a lot of gall to take drugs to the courthouse
square. However, throughout the trial, one of his theories was that Samantha planted the
syringes under the passenger seat while Burris and Deputy Browne stood mere feet away.
This defense required the jury to determine whether it was Burris or Samantha who had
the gall to take the methamphetamines to the courthouse.

Furthermore, the statement about the Clay County Dispatch did not directly relate
to any of the facts of the trial. We must view the statement in the context it was made.
The statement was a general statement in rebuttal of Burris' assertion that somebody
would have to be "pretty stupid" to take or attempt to sell methamphetamines at the
courthouse, just around the corner from the law enforcement building. The State further
used the same "pretty stupid" language to claim that criminals in general tend to make
"stupid" choices. Though the statement rebutted Burris' contention that it is rare for
somebody to be that stupid, it did not have any direct link to the jury determination of
whether Samantha or Burris took the methamphetamines to the courthouse square.

Burris contends the State used the comment about the Clay County Dispatch to
bolster the assertion that Herrera had attempted to sell methamphetamines at the
courthouse or that such activity was not beyond belief. However, the suggestion of
hypothetical news of previous arrests inside the courthouse would have had no bearing on
the verdict. The fact that offenders had possessed or sold drugs in close proximity to law
enforcement was no secret.

The evidence showed that Samantha went to the courthouse after Deputy Browne
motioned her to follow as he passed by her house. Browne testified he drove past the
Burris house, looking for Burris, before going to the courthouse square. Browne stated
that before Samantha opened the passenger door, he could see her hands. His body cam
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video supported his testimony. Further, it was uncontested that Browne found the
syringes under the seat of Burris' truck. While Burris contended that Samantha had
framed him, Browne testified that throughout his investigation Burris had called him
multiple times with different theories of who had framed him and how. Further, Burris
presented no support for his theory that he was framed. Therefore, the improper statement
had no effect on the verdict and was not prejudicial to Burris.

We next address the issue of whether the district court erred by assessing BIDS
attorney fees without considering Burris' financial resources.

Interpretation of a statute is a question of law over which appellate courts have
unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

Burris contends the district court erred by not considering his financial resources
or ability to pay when assessing $2,800 in BIDS attorney fees. According to K.S.A 2017
Supp. 22-4513(b), "In determining the amount and method of payment of such sum, the
court shall take account of the financial resources of the defendant and the nature of the
burden that payment of such sum will impose." The Kansas Supreme Court recognized
that the language in the statute is mandatory, giving no indication that a defendant must
first request the court to consider his or her financial circumstances when assessing BIDS
fees. State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006). The Robinson court
determined that the district court must explicitly consider the defendant's financial
resources and the nature of the burden such payment will impose, stating on the record
how the court weighed those factors. 281 Kan. at 546.

The State concurs the district court failed to consider Burris' financial resources or
the burden on him when assessing fees. As the court assessed fees at sentencing, Burris'
attorney stated, "Your Honor, since he's going to DOC, I don't think we should assess . . .
." To which the district court replied, "That's right, the correctional supervision fee is not
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to be [assessed], but the BIDS attorney fees will be assessed of $2,800." Both parties
properly claim the court failed to consider the Robinson factors. Therefore, we vacate the
BIDS fee and remand to the district court for consideration of Burris' financial resources
and the nature of the burden of the BIDS fees.

Affirmed in part, vacated in part, and remanded with directions.