State v. Campbell

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NOT DESIGNATED FOR PUBLICATION

No. 116,551

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT CAMPBELL,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN and JOHN J. KISNER, JR., judges.
Opinion filed March 16, 2018. Affirmed.

Kristen B. Patty, of Wichita, for appellant, and Robert L. Campbell, appellant pro se.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., GREEN, J., and HEBERT, S.J.

PER CURIAM: Robert Campbell appeals from his conviction and sentencing for
stalking. He argues the jury lacked sufficient evidence to find him guilty of stalking; his
rights to confront his accuser were violated; his substantive due process rights were
violated; and the State failed to disclose exculpatory evidence. We find no reversible
error and affirm Campbell's conviction and sentence.



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Factual and Procedural Background

In 2013, Campbell was convicted by a jury of stalking for phone calls made to
T.D. At trial, T.D. testified against Campbell. Another panel of this court affirmed that
conviction. State v. Campbell, No. 114,396, 2016 WL 6651311, at *8 (Kan. App. 2016)
(unpublished opinion).

On April 29, 2014, T.D. checked her business mail and discovered two letters
from the correctional facility in Lansing. The outside of the envelopes indicated the
letters were from Robert Campbell. T.D. testified that when she saw the letters she felt
"quite nervous" and scared because Campbell was not supposed to contact her. T.D.
further testified when she saw the letters she "had a moment of freakout because then
[she] felt like [Campbell] was right here again in [her] presence." She contacted the
Wichita Police Department and placed the letters in a paper bag. The next day, a Wichita
Police Department officer opened the letters with T.D. present. T.D. only read portions of
the first letter and did not personally read it in its entirety because she was scared and did
not want a visual in her head of anything Campbell had to say to her. She did read the
second letter. T.D. testified she believed the letters to be from Campbell because of the
information on the envelopes and the personal details contained in the letters.

The first letter, postmarked April 7, 2014, was four written pages. Portions of the
first letter, of which T.D. was aware, contained requests for money and stated: "[I]t'll be
very wise to take care of me while I'm in here[. T]his is not a threat[. I]t's not a demand[.
I]'m asking you to make a wise decision." The Wichita Police Department located a
fingerprint of Campbell's right middle finger on the first page of the letter, as well as a
fingerprint for Michael Felix Hart on the outside of the envelope.


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The second letter postmarked April 23, 2014, was very short and stated in its
entirety:

"'OKAY'
"[I]f this is the way you want it . . . {so be it}.'
"[Y]ou can't say I didn't try to find a way to forgive you.
"(HAVE A WONDERFUL YEAR!)"

The Wichita Police Department did not find any fingerprints on the second
envelope or letter. T.D. testified she believed that the "have a wonderful year" comment
meant that Campbell was going to see her in 2015, and this concerned her.

Campbell testified in his own defense and disputed that the State had proved the
handwriting was his. He explained that his fingerprint was on the first letter because
"[s]ome dude named Big Charlie" wrote the letter and handed it to him to read, telling
Campbell that once the money appeared "on your books . . . you better give me all of it."
Campbell testified he begged him not to send the letter because he wanted nothing to do
with T.D.

The State charged Campbell with one count of stalking, contrary to K.S.A. 2013
Supp. 21-5427(a)(2), (b)(2)(B), a severity level 5 person felony. Campbell's case
proceeded to a jury trial, and Campbell exercised his right to represent himself after
multiple warnings and discussions with the trial court regarding the dangers and struggles
in doing so. The jury convicted Campbell as charged. At sentencing, Campbell was
represented by an attorney who filed a motion for a downward dispositional departure.
The district court denied his departure motion and sentenced Campbell to 136 months'
imprisonment.

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Campbell timely appeals. For clarity, additional facts will be addressed in the
analysis as necessary.

Campbell's Claims on Appeal

On appeal, Campbell makes several arguments both in the brief filed by his
appointed appellant counsel and his pro se supplemental brief. First, he argues that his
stalking conviction is not supported by sufficient evidence. Second, he argues his rights
under the Confrontation Clauses of the Sixth Amendment to the United States
Constitution and § 10 of the Kansas Constitution Bill of Rights were violated. Third, he
argues his substantive due process rights were violated when the district court denied his
request for standby counsel after Campbell chose to exercise his right to represent
himself. Finally, in his statement of issues in his supplemental brief, he lists the State
committed a Brady violation when it allegedly failed to disclose all its discovery material
to him; however, he does not include this issue in his brief's analysis. Each argument will
be addressed in turn.

The stalking conviction is supported by sufficient evidence.

First, Campbell argues that his stalking conviction is not supported by sufficient
evidence. Specifically, he argues the State's failure to provide the jury with a known
sample of his handwriting to compare to the letters sent to T.D. is fatal to his conviction.
He also briefly states that because there were no fingerprints on the second letter, the
State failed to establish a course of conduct.

"'When the sufficiency of evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt.' [Citation
omitted.]" State v. Rosa, 304 Kan. 773, 432-33, 371 P.3d 915 (2016). "'In making a
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sufficiency determination, the appellate court does not reweigh evidence, resolve
evidentiary conflicts, or make determinations regarding witness credibility.' [Citation
omitted.]" State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016). It is only in rare cases
where the testimony is so incredible that no reasonable factfinder could find guilt beyond
a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5-
6, 660 P.2d 945 (1983).

"A conviction of even the gravest offense may be sustained by circumstantial evidence.
Circumstantial evidence, in order to be sufficient, need not rise to that degree of certainty
which will exclude any and every other reasonable conclusion. Instead, circumstantial
evidence affords a basis for a reasonable inference by the jury regarding a fact at issue."
State v. Logsdon, 304 Kan. 3, Syl. ¶ 3, 371 P.3d 836 (2016).

"There is no requirement that a criminal defendant challenge the sufficiency of the
evidence before the trial court in order to preserve it for appeal." State v. Farmer, 285
Kan. 541, 545, 175 P.3d 221 (2008).

In order for the jury to find Campbell guilty of stalking T.D., the State was
required to prove beyond a reasonable doubt that Campbell engaged in a course of
conduct targeted at T.D. with knowledge that the course of conduct would place T.D. in
fear for her safety. See K.S.A. 2013 Supp. 21-5427(a)(2); PIK Crim. 4th 54.460 (2016
Supp.).

Here, even without a sample of Campbell's handwriting, there was sufficient
evidence for a jury to convict him of stalking. T.D. testified that the return address on
both letters came from Campbell at the Lansing Correctional Facility. Statements in the
first letter referenced specific things about Campbell and T.D.'s prior encounters that led
to his previous stalking conviction and her testimony at that trial. The letter stated that
T.D.'s testimony cost him a year of his life and that it would "be wise" for T.D. to do the
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right thing and send him money because it was her fault he was in prison. The Wichita
Police Department found Campbell's fingerprint on the letter.

T.D. testified that just seeing Campbell's name on the envelope put her in fear and
she "had a moment of freakout because then [she] felt like [Campbell] was right here
again in [her] presence." T.D. also testified that she only read portions of the first letter
because she was so fearful of Campbell that she did not want a visual of anything he had
to say to her in her mind. The jury examined the letters. The first letter threatened T.D. by
telling her she needed to pay Campbell money because she put him in prison and
referenced that from his court papers he knew she was self-employed, her residential
address, and her age. The second letter then implied that because she had not sent him
money that he would see her after the year was up.

Although there was not a fingerprint on the second letter and the State did not
admit a known handwriting sample, a conviction of even the gravest offense can be based
entirely on circumstantial evidence. See Logsdon, 304 Kan. at 25. The State presented
evidence that Campbell's fingerprint was on the first letter and the jury was able to
compare the handwriting with the second letter, and to determine that, together, the two
letters created a course of conduct by Campbell.

The jury also heard directly from Campbell regarding his version of events. He
testified that he did not write the letters, but, rather, it was "[s]ome dude named Big
Charlie." As reflected in its verdict, the jury did not find Campbell's account credible.

Campbell misconceives of the role of an appellate court: it is not our role to retry
the case. We do not reweigh the evidence as he now asks us to do, nor do we assess the
credibility of witnesses. In the current instance, we find that the evidence, when viewed
in a light most favorable to the State, was sufficient for a rational fact-finder—the jury—
to find Campbell guilty of stalking beyond a reasonable doubt.
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Campbell's confrontation rights were not violated.

Second, Campbell argues his rights under the Confrontation Clauses of the Sixth
Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of
Rights were violated. Specifically, he argues that his right to confront his accusers was
violated because the State did not produce testimony from the detective who opened the
letters in T.D.'s presence.

"An appellate court employs an unlimited standard of review when addressing
whether a defendant's right to confront witnesses under the Sixth Amendment has been
violated." State v. Williams, 306 Kan. 175, 181, 392 P.3d 1267 (2017). "The Sixth
Amendment, made applicable to the States via the Fourteenth Amendment to the United
States Constitution, provides that '[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.' [Citation omitted.]" State v.
Latuner, 289 Kan. 727, 731, 218 P.3d 23 (2009); see Pointer v. Texas, 380 U.S. 400, 403,
85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). Section 10 of the Kansas Bill of Rights states:
"In all prosecutions, the accused shall be allowed . . . to meet the witness face to face."

"It has long been recognized that . . . the right of confrontation under the United
States Constitution and the right to meet the witnesses 'face to face' under Section 10 of
the Kansas Bill of Rights are satisfied when defendant has had an opportunity to cross-
examine the witnesses against him.[Citations omitted.]" State v. Busse, 231 Kan. 108,
111, 642 P.2d 972 (1982).

"Ordinarily, the failure to specifically base a trial objection on the Confrontation
Clause precludes appellate review of that issue." State v. Jones, 295 Kan. 1050, 1054,
288 P.3d 140 (2012); see State v. McCaslin, 291 Kan. 697, 708-09, 245 P.3d 1030 (2011)
(holding issue on right of confrontation not preserved on appeal with a hearsay objection
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made at trial); State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002) (declining to
entertain a Confrontation Clause challenge for the first time on appeal).

Here, at trial, Campbell did not formally make a specific and timely objection on
the grounds of the Confrontation Clause. This should preclude appellate view of this
issue. See Jones, 295 Kan. at 1054. However, in a bench conference outside of the
presence of the jury discussing what Campbell could and could not ask of T.D. regarding
portions of the letters, the following exchange occurred:

"MR. CAMPBELL: She mentioned that the detective read the letter, some of the letter,
to her. I would like to cross examine this detective, this officer, for
the credibility of her testimony.
"THE COURT: Who's the officer?
"[THE STATE]: That would be Dwain Diehl.
"THE COURT: Did he make a report?
"[THE STATE]: He made a report.
"THE COURT: Does it reference what sections of the letters he read?
"[THE STATE]: It advised that he read the letters in full.
"MR. CAMPBELL: In full.
"THE COURT: Okay. Then you can ask her you were read the letters in full. There's
documentation saying you read the letters―you were read the
letters in full but you say you only yourself read part of the letters.
You can ask her that and ask her what she remembers about the
letters. It's not a question of what was actually read to her. It's a
question of what she remembers, what her reaction was to what she
remembers being read or learning about those letters. Do you
understand that?
"MR. CAMPBELL: Yes. She stated on record that the part of the letter that the detective
read is the part that put her in fear, Your Honor. I would like to be
able to cross examine this detective on this report.
"THE COURT: Then subpoena him.
"[THE STATE]: Your Honor―
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"THE COURT: That's always been your right.
"MR. CAMPBELL: It was the State's endorsed witness.
"THE COURT: They don't have to call the witnesses if they don't want to. It's their
witnesses. They can call the witnesses they want to call.
"MR. CAMPBELL: Under the Sixth Amendment I have the right to face the accusers.
"THE COURT: You are. [T.D.]
"MR. CAMPBELL: The detective wrote the affidavit of probable cause. He's also an
accuser, Your Honor.
"THE COURT: No, he's not. He's the complaining witness. The alleged victim is
[T.D.] She's on the stand. You're questioning her. You're
confronting her. Bring [T.D.] back in."

Even if we would construe this colloquy as sufficient to preserve the confrontation
issue for appellate review, Campbell's argument is without merit. He was not denied the
right to confront the witnesses against him. T.D. testified to what she knew of the letters
and the portions that she read. Further, Campbell personally cross-examined her. T.D.
was the victim in this case accusing him of stalking—not the detective. Campbell had the
right to subpoena the detective in this case but chose not to do so. Campbell's rights under
the Confrontation Clause of the Sixth Amendment and § 10 of the Kansas Constitution
Bill of Rights were not violated.

Campbell also briefly raises an argument that the State failed to meet its burden of
proof when it did not to produce the detective to testify regarding the "chain of evidence."

In State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009), our Supreme Court
specifically noted: "K.S.A. 60-404 dictates that evidentiary errors shall not be reviewed
on appeal unless a party has lodged a timely and specific objection to the alleged error at
trial." Further, Kansas Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 35) requires
an appellant's brief contain:

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"The arguments and authorities relied on, separated by issue if there is more than
one. Each issue must begin with citation to the appropriate standard of appellate review
and a pinpoint reference to the location in the record on appeal where the issue was raised
and ruled on. If the issue was not raised below, there must be an explanation why the
issue is properly before the court."

Moreover, a point raised incidentally in a brief and not argued therein is deemed waived
and abandoned. State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015).

Here, Campbell made no timely and specific objection to the admission of the
evidence based on an alleged error in the chain of custody. He also failed to explain why
this issue, which was not raised below, is properly before this court. Finally, Campbell
merely raises this point incidentally in his brief and does not present any authorities to
support his argument. Campbell failed to preserve this issue for appellate review.

Campbell's due process rights were not violated.

Campbell argues his substantive due process rights were violated when the district
court denied his request for standby counsel after Campbell chose to exercise his right to
represent himself. Specifically, he argues "[t]he pretrial court sessions and the jury trial
court session had violated [his] due process right to the Sixth Amendment when it failed
to appoint Campbell a defense standby counsel as a [consultant] and advisory for jury
trial, even when he petition[ed] the court for one before jury trial."

In Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975),
the United States Supreme Court held that the Sixth Amendment, as made applicable to
the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal
trial has an independent constitutional right to self-representation. Our Supreme Court
has had several occasions to discuss and illuminate the Faretta holding. See State v.
Vann, 280 Kan. 782, 793, 127 P.3d 307 (2006); State v. Graham, 273 Kan. 844, 850, 46
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P.3d 1177 (2002); State v. Collins, 257 Kan. 408, 411, 893 P.2d 217 (1995). In Faretta, it
was also noted that a state may appoint "standby counsel," even over a defendant's
objection, to assist the pro se defendant in his or her defense. 422 U.S. at 834 n.46.

The Kansas Supreme Court specifically held: "While a party has the right to
represent himself or herself or be represented by counsel, he or she does not have the
right to a hybrid representation." State v. Holmes, 278 Kan. 603, 620, 102 P.3d 406
(2004) (citing State v. McKessor, 246 Kan. 1, 12, 785 P.2d 1332, cert. denied 495 U.S.
937 [1990]).

The appointment of standby counsel for a pro se litigant rests within the sound
discretion of the trial court. State v. Matzke, 236 Kan. 833, 837, 696 P.2d 396 (1985). A
judicial action constitutes and abuse of discretion if the action (1) is arbitrary, fanciful or
unreasonable; (2) the action is based on an error of law; or (3) the action is based on an
error of fact. See State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).

An explanation of Campbell's road to self-representation is helpful here. Campbell
first expressed his desire to represent himself at a hearing in December 2014. At that
time, the district judge walked through an extensive description of Campbell's rights in
self-representation and the "numerous dangers and disadvantages" to self-representation.
At the time of this hearing, which occurred on a Friday, Campbell's trial was set for the
following Monday. The district judge continued his trial to allow him time decide if he
truly wanted to represent himself. The judge indicated that he would rule on Campbell's
oral motion for self-representation after the weekend. At the Monday hearing, Campbell
requested a competency evaluation, which delayed the district court's ruling on his
request of self-representation. Campbell was ultimately deemed competent to proceed to
trial.

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Campbell's request for self-representation was finally addressed at a hearing on
March 20, 2015. Before granting Campbell's request, the district judge engaged in a
thorough discussion with Campbell, including an explanation of the risks of self-
representation and that such an action would be an "enormous undertaking." During the
discussion, Campbell told the district judge that he did not want his current appointed
counsel to remain as standby counsel and he wanted her removed from his case. The
judge stated he did not have a problem with his current counsel not acting as standby
counsel, but he did have a problem with Campbell "being half-way in and half-way out,"
and that he is "either representing [him]self or [he's] not." The district court judge
reiterated multiple times that "the Court considers it detrimental for the defendant not to
accept or employ counsel to represent him or her," and that, although required to give this
warning, even if the court were not, the court still would inform Campbell that "[i]t is not
in your best interest to represent yourself." The district court judge further elaborated that
he had granted several motions for self-representation in his time on the bench and that
"without question, they have all ended badly for the defendant." Undeterred, Campbell
persisted in his request, and the district court granted his motion.

At another hearing on March 30, 2015, Campbell requested standby counsel and
told the court that he believed that if he decided to change his mind, standby counsel
should be there to take over his representation. The district court judge explained to
Campbell that standby counsel was at the discretion of the court. The judge further
explained that standby counsel did not represent Campbell, would not be working for
him, and he would not be able to direct the attorney. The district court judge indicated
that his previous counsel would most likely be appointed as standby counsel. Campbell
told the judge that she had been removed from his case and he had sent a letter to the
disciplinary administrator regarding her representation of him. The district court judge
told Campbell that he would check with the previous judge to find out what occurred at
the previous hearing and then a decision would be made regarding standby counsel.

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On April 17, 2015, at a hearing, Campbell again requested that the court appoint
standby counsel and argued that he had a Sixth Amendment right to standby counsel. The
district court denied Campbell's request after a thorough examination of the law on the
subject, noting that the Sixth Amendment does not provide a constitutional right to
standby counsel and that denying the request did not violate his constitutional right to
self-representation. The judge again ensured that Campbell desired to proceed pro se, and
Campbell reiterated that he did.

In the middle of trial, during Campbell's cross-examination of T.D., Campbell
again requested standby counsel be appointed. The district judge denied his request as
untimely and stated that Campbell had been warned by multiple judges that this would
occur. Campbell then stated that he wished to waive his right to self-representation and
proceed with appointed counsel. The district court also denied this request stating, in part:

"As a practical matter, if I were to appoint counsel to actively represent you, that
counsel would not step in and continue the trial at this point in time. That counsel, in all
likelihood, would request a continuance of probably several weeks. We would have to
declare a mistrial, start all over again with a new jury sometime down the road, maybe
months later.
"As [the State] has stated, Mr. Campbell, you have been warned repeatedly by
different judges, not just myself, as to the risks of self-representation. It's kind of like a
case of buyer's remorse. You got what you wanted and now you don't like it. You want to
change it. It's also akin to changing horses in the middle of the stream. It's not a good
idea. There are all kinds of arguments against it, both judicial economy, scheduling of
cases.
"You wanted to proceed pro se. You are proceeding pro se. If the appellate courts
ultimately decide―if you are convicted and the appellate courts ultimately decide I
should have granted this request, they'll tell us that at that time and you'll get the request
at that time. But as of today, I'm going to deny your request for appointment of active
counsel and we'll proceed on the basis that you've requested a considerable time before
the start of this trial of representing yourself."
14

As noted above, Campbell does not have a constitutional right to hybrid
representation, and the appointment of standby counsel is within the sound discretion of
the trial court. See Holmes, 278 Kan. at 620; Matzke, 236 Kan. at 837. At the March 20,
2015 hearing, the district court thoroughly advised Campbell of the dangers and
disadvantages he would face in proceeding with self-representation. Knowing these risks,
Campbell knowingly and voluntarily waived his right to counsel and chose to proceed
pro se. The court did not abuse its discretion in denying Campbell's requests for standby
counsel, especially when it reiterated to Campbell on numerous occasions the dangers of
proceeding pro se and that he would not be able to direct standby counsel how to proceed
on his case.

We further note that on appeal Campbell does not raise the district court's denial of
his midtrial request for appointed counsel, neither in the brief submitted by appellate
counsel nor in his pro se supplemental brief. An issue not briefed is deemed to be waived
or abandoned. See State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016); Kansas
Supreme Court Rule 6.02 (a)(5) (2018 Kan. S. Ct. R. 34).

In any event, such claim would appear to be without merit. In an unpublished
opinion by this court, it is persuasively noted:

"The right to counsel, however, is not a limitless one. As we have suggested, a
criminal defendant may not change positions on self-representation in bad faith or in a
way that materially disrupts judicial proceedings. See John-Charles v. California, 646
F.3d 1243, 1250 (9th Cir. 2011) (no error in denying defendant's request made in the
middle of trial to rescind waiver of counsel); United States v. Leveto, 540 F.3d 200, 207
(3d Cir. 2008) (suggesting no abuse of discretion in denying defendant's request for
counsel on the day of trial after granting an earlier motion for self-representation.)" State
v. Rassel, No. 107,336, 2013 WL 1688390, at *3 (Kan. App. 2013) (unpublished
opinion).

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Here, the district court held during trial that Campbell's request for appointed
counsel was untimely and that it would have been especially disruptive and vitiate the
trial. This change in position on self-representation would have materially disrupted the
judicial proceedings. There was no error in denial of Campbell's request, and there was
no abuse of discretion in denying his requests for appointment of standby counsel
because those rulings were not arbitrary, fanciful, or unreasonable or based on an error of
law or fact.

The State's alleged failure to disclose exculpatory evidence is not properly before this
court.

In his statement of issues in his supplemental brief, Campbell lists the State
committed a Brady violation when it allegedly failed to disclose all its discovery material
to him; however, he does not include this issue in his brief's analysis.

As previously discussed, an issue not briefed by the appellant is deemed waived or
abandoned. Williams, 303 Kan. at 758; Kansas Supreme Court Rule 6.02(a)(5) (2018
Kan. S. Ct. R. 35) (appellant's brief must contain "[t]he arguments and authorities relied
on"). Campbell has waived this issue on appeal for failure to brief to issue.

Affirmed.