State v. Davis

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NOT DESIGNATED FOR PUBLICATION

No. 112,204

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICKY DAVIS,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed October 23,
2015. Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Susan Alig, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before LEBEN, P.J., GREEN, J., and JEFFREY E. GOERING, District Judge, assigned.

Per Curiam: A jury convicted Ricky Davis of one count of possession of cocaine.
Davis appeals. On appeal, Davis first argues that the trial court erroneously instructed the
jury not to engage in certain activities that would constitute juror misconduct because a
resulting mistrial would involve "tremendous expense and inconvenience." Second,
Davis argues that the oath administered to the jurors was in error because requiring jurors
to swear to render a true verdict foreclosed the possibility of a hung jury. Third, Davis
argues that the trial court violated his right to be present at all critical stages of the
proceedings and his right to have an impartial judge present at all stages of his trial when
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the court allowed the admitted trial exhibits to go into the jury room during deliberations.
We find no merit in any of the claims of error and affirm Davis' conviction.

The facts relevant to the appeal are as follows. Shortly after 7 p.m. on March 9,
2012, Davis was stopped by Officer Kyle Wolf with the Kansas City Police Department
for making a right turn without a turn signal. As Officer Wolf approached the vehicle, the
passenger darted from the vehicle and was never apprehended. Officer Wolf arrested
Davis for driving without a license and searched the vehicle. Cocaine was found inside
the vehicle in plain view on the dashboard and in the console. In addition, Officer Wolf
found a box of clear plastic baggies commonly used to distribute cocaine and inositol
powder commonly used to "cut" cocaine to make the drug less pure.

The State charged Davis with one count of possession of cocaine and one count of
possession of drug paraphernalia. The jury convicted Davis of possession of cocaine but
acquitted him of possession of drug paraphernalia. Each of Davis' claims of trial error
will be addressed in turn.

Did the trial court commit reversible error when it instructed the jury that a mistrial
would involve "tremendous expense and inconvenience?"

After the close of evidence, but prior to the instructions conference, the trial judge
gave the following instruction to the jury:

"You must not engage in any activity, or be exposed to any information, that
might unfairly affect the outcome of this case. Any juror who violates these restrictions
I've explained to you jeopardizes the fairness of the proceedings, and a mistrial could
result that would require the entire trial process to start over. As you can imagine, a
mistrial is a tremendous expense and inconvenience to the parties, the court and the
taxpayers." (Emphasis added.)

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Davis contends the emphasized language in the instruction was erroneous and requires a
new trial.

Our standard of appellate review proceeds in stages.

"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012)." State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202
(2012).

The preservation inquiry in the first step is governed by K.S.A. 2014 Supp. 22-
3414(3), which states in relevant part:

"No party may assign as error the giving [of] . . . an instruction . . . unless the
party objects thereto before the jury retires to consider its verdict stating distinctly the
matter to which the party objects and the grounds of the objection unless the instruction
or the failure to give an instruction is clearly erroneous. Opportunity shall be given to
make the objections out of the hearing of the jury."

Davis concedes he did not object to the instruction at issue but argues that he was
never given the opportunity to object outside the hearing of the jury. Another panel of
this court noted in an unpublished opinion that it is at least "problematic" for the trial
court to instruct the jury about preliminary matters such as juror misconduct without first
giving the parties a chance to lodge objections. State v. Davis, No. 111,902, 2015 WL
4366527, at *4 (Kan. App. 2015) (unpublished opinion). In that case, the panel dealt with
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the same preliminary instruction, albeit one given before any testimony was taken. That
panel noted that the defendant could have objected or asked for a sidebar conference to
object and did not. 2015 WL 4366527, at *4. Consequently, that panel limited its review
of the instruction to clear error. 2015 WL 4366527, at *4.

In this case, even though Davis might not have had the opportunity to object to the
instruction before it was given, the State is correct that K.S.A. 2014 Supp. 22-3414(3)
requires Davis to object "before the jury retires to consider its verdict." Here, the
instruction at issue was given by the trial court at the conclusion of the evidence but
before the instructions conference occurred. Davis had ample opportunity to object to the
instruction at the instructions conference out of the hearing of the jury. Consequently,
while the trial court may not have given Davis the opportunity to object to the instruction
before it was given to the jury (which we likewise believe to be problematic), Davis had
plenty of opportunity to make a timely objection to the instruction outside the presence of
the jury prior to the time the jury retired to deliberate. We therefore limit our review of
the instruction for clear error.

In State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009), our Supreme Court held
that it was error to instruct a jury that "'[a]nother trial would be a burden on both sides.'"
Among other things, the court determined that this language was in conflict with another
commonly given PIK instruction that tells jurors not to concern themselves with what
happens after they arrive at a verdict. 288 Kan. at 266. The court instructed the PIK
Committee to "strike this language from this instruction." 288 Kan. at 266.

However, our Supreme Court has recently declined to expand the holding of Salts
to preliminary jury instructions. In State v. Tahah, No. 109,857, 2015 WL 5752446, at
*8-9 (Kan. 2015), the court held that it was not error for the district court to give the same
instruction that is in issue in this case as part of the preliminary instructions that are given
to a newly impaneled jury prior to the start of evidence. The court noted its "long and
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justified history of disapproving" Allen instructions "(an Allen instruction is any
instruction 'that encourages the jury to reach a unanimous verdict so as to avoid a
mistrial.' United States v. McElhiney, 275 F.3d 928, 935 [10th Cir. 2001]; see Allen v.
United States, 164 U.S. 492, 501-02, 17 S. Ct. 154, 41 L. Ed. 528 [1896])." Tahah, 2015
WL 5752446, at *8. However, the court found that the preliminary instruction at issue
was not an Allen instruction:

"The preliminary jury instruction here, however, is not an Allen instruction. Its
character and purpose are entirely different. The instruction occurred at the start of trial,
before the presentation of evidence, and warned jurors of the dangers of a mistrial
resulting from their own misconduct. As such, its coercive effect (to prevent juror
misconduct) is entirely proper and justified. Moreover, because its purpose is proper, the
instruction is factually accurate. The prospect of a mistrial due to juror misconduct—
especially when viewed from the pretrial vantage point of the parties—is, in fact, equally
inconvenient and undesirable to both parties. In particular, it interferes with the
defendant's right to a speedy resolution of the criminal allegations against him or her.
Given this significant distinction, the Salts rationale is inapplicable here.
"Juror misconduct imposes grave costs not only to the parties and others involved
in the trial process, but significantly to the integrity of our jury trial criminal justice
system itself, which depends on the honest and ethical behavior of jurors. We do not need
to look far to see the ease with which today's smartphone equipped jurors can commit
misconduct—perhaps even innocently. See State v. Prator, No. 111,103, 2015 WL
1123138, at *5 (Kan. App. 2015) (unpublished opinion) (affirming the denial of motion
for mistrial after jurors used internet to look up definitions of words used in jury
instructions). In light of these considerations, we hold that the warning against juror
misconduct contained in PIK Civ. 4th 101.12 is both legally and factually accurate in the
criminal context as well as the civil." 2015 WL 5752446, at *9.

Based on the Tahah decision, the language of the instruction at issue in this case
was not legally or factually inaccurate. The only difference between the instruction given
in this case and the instruction given in Tahah was in the timing. In Tahah, the instruction
was given after the jury had been impaneled but before the start of evidence. We note this
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difference because the court in Tahah suggested that the "coercive effect" of the
instruction was proper in part because of the timing of the instruction—that is, the jury
should be cautioned about misconduct in light of the opportunity for such misconduct to
occur during the trial. 2015 WL 5752446, at *9.

In this case, the instruction was given at the close of the evidence but before the
parties gave closing arguments. As such, the opportunity for juror misconduct to occur
during the evidentiary phase of the trial had come and gone. Nevertheless, as the majority
observed in Tahah, there is both the opportunity for and danger of juror misconduct
during the deliberation phase of the trial. In light of that circumstance, the giving of the
instruction prior to juror deliberation was not without purpose. We find no error in the
giving of the instruction in this case, although if the instruction is to be given, the better
practice would be to give the instruction at the beginning of the trial.

In any event, even if there was error in the timing of the instruction, such error was
harmless. To warrant reversal, we must be "firmly convinced that the jury would have
reached a different verdict had the instruction error not occurred." State v. Williams, 295
Kan. 506, 516, 286 P.3d 195 (2012). The burden is on Davis to show that instruction
error mandates reversal. 295 Kan. at 516.

We find that Davis has not carried his burden to show that the instruction had any
impact on the outcome of his trial. While Davis argues that the instruction contradicted
other instructions given by the court which admonish the jury not to consider matters not
admitted into evidence or the disposition of the case after verdict, we note that the
instruction at issue was one that admonished the jury against activities that would
constitute juror misconduct. As noted in Tahah, the character and purpose of the
instruction is entirely different than the instructions given by the district court prior to
closing argument. Tahah, 2015 WL 5752446, at *9. In that context, the jury was told that
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a mistrial was a possible consequence of any behavior that they might engage in that
would constitute juror misconduct.

There is simply nothing in the record to support the argument that the jury was in
any way confused by the jury instructions that were given in this case, or that they were
unduly influenced by the language in the preliminary instruction. We note that the jury
acquitted Davis of possessing drug paraphernalia. The jury remained quite capable of
holding the State to its burden of proof at trial, despite the language in the preliminary
instruction.

Finally, there was strong evidence presented at trial of Davis' guilt. Cocaine was
found in plain view on the dashboard and in the console of the vehicle. Davis was the
owner and the driver of the vehicle. This evidence was uncontested at trial. In view of the
entirety of the record, we cannot say that the jury would have reached a different verdict
had the preliminary instruction not been given.

Was the oath administered to the jury unduly coercive?

Next, Davis argues that the oath administered to the jury was unduly coercive.
The oath administered to the jury was as follows: "You and each of you do solemnly
swear that you will well and truly try the issues submitted to you in the cause now in
hearing and a true verdict render according to the law and evidence. So help you God."
Davis argues that requiring each juror to swear that he or she will "a true verdict render"
required the jury to return a unanimous verdict, which eliminated the possibility of a
hung jury in violation of his constitutional rights to due process and to a trial by an
impartial jury.

Davis failed to object to the language of the oath. Consequently, this issue has not
been properly preserved for appellate review. In The State v. Baldwin, 36 Kan. 1, 7-8, 12
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P. 318 (1886), our Supreme Court articulated the reason why a contemporaneous
objection was necessary:

"[N]o objection was made to the form of the oath when it was administered, or at any
other time prior to its presentation in this court. If there was any irregularity in this
respect it should, and probably would, have been objected to at the time it occurred. . . .
[I]f the form of the oath was defective the attention of the court should have been called
to it at the time the oath was taken, so that it might have been corrected. A party cannot
sit silently by and take the chances of acquittal, and subsequently, when convicted, make
objections to an irregularity in the form of the oath."

Recently in State v. Dwigans, 51 Kan. App. 2d ___, Syl. ¶ 2, 356 P.3d 412 (2015),
another panel of this court, relying upon Baldwin, held that a "defendant must object at
trial to the oath or affirmation given to the jury at a criminal trial in order to preserve for
appeal any challenge to the form or administration of the oath or affirmation."

Davis, like the defendant in Dwigans, attempts to distinguish Baldwin by arguing
that he is not attacking the administration of the oath but rather "the language used in the
oath." The panel in Dwigans found this argument to be unpersuasive, and so do we. As
stated in Dwigans:

"Dwigans tries to distinguish her case from Baldwin by noting that she is
asserting a problem with the 'language of the oath,' rather than an irregularity in the
'administration' of the oath. But her argument is unpersuasive because the defendant in
Baldwin also asserted a problem with the language of the oath given by the court in that
case. Under Baldwin, Dwigans' failure to object to the oath and affirmation in the district
court leaves her unable to challenge them on appeal. This result makes sense. If Dwigans
believed there was a problem with the oath and affirmation given by the court at her jury
trial, she should have objected at the trial in order to allow the district court to address
and correct any problem. Dwigans cannot remain silent at trial and, upon being
convicted, make objections to an irregularity in the form of the oath. Baldwin, 36 Kan. at
8." Dwigans, 356 P.3d at 414.
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Because Davis failed to object to the language of the oath at trial, he has not preserved
the issue for appellate review.

Even if Davis had preserved the issue for appellate review, his argument that the
language of the oath foreclosed the possibility of a hung jury is meritless. Although the
jury is typically sworn in mass, each individual juror swears to render a true verdict.
There is nothing in the language of the oath that requires the jury as a whole to agree
upon a unanimous verdict. A hung jury occurs when individual jurors, consistent with the
language of the oath, are unable to reach agreement. Indeed, the only way a hung jury can
result is when individual jurors follow the letter of the oath they took. If two jurors are in
genuine irreconcilable disagreement as to whether the State has proved its case, the only
way a unanimous verdict results is if one juror disregards his or her obligation to render
what he or she believes to be a true verdict.

Did the trial court commit error by sending admitted exhibits to the jury room during
deliberations?

Davis' final arguments relate to the trial judge allowing admitted exhibits to go
into the jury room during the jury's deliberations. Davis contends that this deprived him
of the right to be present at all critical stages of the trial. Davis further contends that
because the trial judge was not present when the exhibits were provided to the jury room
during deliberations, his "right to have a judge present during all stages of his trial" was
violated. We find no merit in these arguments.

In the first place, Davis never objected when the admitted exhibits were sent into
the jury room, and he has made no effort to explain in his brief why we should consider
this issue for the first time on appeal. Davis has not demonstrated that this issue has been
preserved for appellate review. See State v. Hunt, 275 Kan. 811, 813, 69 P.3d 571 (2003).

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Second, during closing argument Davis' counsel told the jury about its right to
request and look at the exhibits during deliberations and urged the jury to do so. Davis
cannot invite error and then complain about that error on appeal. State v. Divine, 291
Kan. 738, 742, 246 P.3d 692 (2011).

Third, K.S.A. 22-3420, amended effectively on July 1, 2014, specifically permits
the trial judge to allow the jury to take admitted exhibits into the jury room during
deliberations. K.S.A. 2014 Supp. 22-3420(c). The amendments to K.S.A. 22-3420 are
applied retroactively. K.S.A. 2014 Supp. 22-3420(f).

Fourth, the jury's review of admitted exhibits during deliberations, which required
no additional communication from the court, was not a critical stage of the trial. Our
Supreme Court has defined critical stages of the trial to include all times when the jury is
present in the courtroom and whenever the trial court communicates with the jury. State
v. Herbel, 296 Kan. 1101, 1109, 299 P.3d 292 (2013). The exhibits at issue here had been
admitted into evidence during the trial. No further comment by the trial judge was
necessary during the jury's review of these exhibits during deliberations.

In conclusion, we find no trial errors were committed requiring reversal of Davis'
conviction for possession of cocaine. We therefore affirm the conviction.

Affirmed.