State v. Marshall

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NOT DESIGNATED FOR PUBLICATION

No. 113,187

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SEAN L. MARSHALL,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL GROSKO, judge. Opinion filed April 8, 2016.
Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before SCHROEDER, P.J., HILL and GARDNER, JJ.

Per Curiam: Sean L. Marshall appeals his conviction of one count of attempted
aggravated robbery. Finding no error in the district court's admission of evidence, its
ruling on Marshall's motion for new trial, or in its appointment of new counsel, we
affirm.

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Procedural background

In the early morning of May 4, 2013, Marshall went to a convenience store in
Wyandotte County to buy gas and K2. He gave the cashier, Maria Burris, a $20 bill and
asked for $5 in gas and $15 in K2. Although some clerks at the store sold K2, Burris did
not and she refused to sell any to Marshall. When Burris told Marshall she would not sell
K2 to him, he became upset. The two exchanged words. During this time, Burris was in
an enclosed area of the store, where a glass partition separates the cashiers from the
customers.

As Burris and Marshall argued, Marshall moved to the door of the enclosed area.
The door was unlocked, and Marshall was able to enter. Burris kicked Marshall, and the
two began to struggle. Marshall eventually placed Burris in a chokehold, and she started
to go in and out of consciousness and may have briefly passed out. According to
Marshall, he was attempting only to control Burris. But he also admitted that he was
stronger than Burris, could beat her up, and was in complete control of the situation.

While he had Burris in a chokehold, Marshall took four packs of K2—the amount
he believed was equivalent to $20—from a box under the counter. Marshall testified that
Burris told him, even though she was in a chokehold, where to find the K2 and that his
$20 bill was in her pocket. Burris testified, however, that she did not think Marshall
offered her money while she was in the chokehold and that she did not give him
permission to take the K2.

After taking the K2, Marshall stood up, with Burris still in the chokehold, and
moved toward the door of the enclosed area. He then released Burris and pushed her
away. Once free, Burris locked the door to the enclosed area and activated the electronic
lock on the store's front door. Realizing that he was trapped, Marshall pushed and ran into
the door. He also tried to escape by ripping out the lock's wires. Marshall then returned to
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the register and asked Burris to let him out. He offered to pay for the K2, but Burris
refused to accept his money and called 911. Police officers responded and arrested
Marshall. He was charged with one count of attempted aggravated robbery.

During the investigation, police officers attempted to retrieve the surveillance
video from the store but were unable to copy the video files. So instead, officers used a
video camera to record the video as it played on the store's monitor. There were several
camera angles, but the police officers did not record all of them, selecting only certain
footage. Before trial, Marshall filed a motion in limine asking the district court to exclude
the video, arguing that the police officers should have recorded the entire video, with all
the angles, and that the omitted footage contained potentially exculpatory evidence. The
district court held a hearing, denied the motion, and admitted the video at trial, after
which the jury found Marshall guilty.

Before sentencing, a hearing was held and the district court asked defense counsel
if there was a motion for a new trial. Defense counsel indicated that she did not believe
that any trial errors had been made and that such a motion would be frivolous. A short
recess was then taken so defense counsel could consult with Marshall. After the recess,
defense counsel informed the district court that Marshall wished to have a new attorney,
which the district court then appointed. The district court also acknowledged that
Marshall had filed a pro so motion for appeal and construed it as a motion for a new trial.
After holding a hearing on the motion, the district court found that the motion was
untimely. Marshall was sentenced to 78 months in prison, with 24 months of postrelease
supervision. He timely appeals.

Admission of surveillance video

Marshall first claims that the district court erred by admitting the surveillance
video from the store. He specifically argues that he was denied a fair trial because the
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State failed to properly preserve exculpatory evidence by not recording the entire video.
Marshall also contends that the error of admitting the video contributed to the verdict and
thus could not be harmless. This issue was preserved for appeal by defense counsel's
objection at trial.

A. Standard of Review

Appellate courts use a multistep analysis to review the admission of evidence.
State v. King, 299 Kan. 372, 383, 323 P.3d 1277 (2014). We first consider relevance,
which is defined as evidence that is probative and material. State v. Shadden, 290 Kan.
803, 817, 235 P.3d 436 (2010) (citing K.S.A. 60-401[b]). Whether evidence was
probative is governed by an abuse of discretion standard and materiality is governed by a
de novo standard. 290 Kan. at 817. The second step is to decide which legal principles or
rules of evidence apply. This determination is also reviewed de novo. 290 Kan. at 817.
The third step is the application of those rules or principles, which can involve reviewing
the district court's discretion or considering matters of law. 290 Kan. at 817.

B. Relevance

Relevant evidence is probative and material. State v. Boleyn, 297 Kan. 610, 622,
303 P.3d 680 (2013). Evidence is material if it "'has a legitimate and effective bearing on
the decision of the case and is in dispute.'" State v. Garcia, 285 Kan. 1, 14, 169 P.3d 1069
(2007). If it has "'any tendency in reason to prove'" a fact, the evidence is probative. State
v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008) (quoting K.S.A. 60-401[b]). Because
Marshall does not address the video's relevance in his brief, we deem this issue waived
and abandoned. See Boleyn, 297 Kan. at 633. Further, because the video depicted the
altercation between Marshall and Burris, it had a legitimate and effective bearing on the
case. And since the video showed Marshall's actions while he was in the store, it had a
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tendency in reason to prove what happened. Thus, the video was relevant. See 297 Kan.
at 622.

C. Preservation of Potentially Exculpatory Evidence

The only legal principle or rule of evidence that Marshall points to in arguing that
the video should not have been admitted is his assertion that police officers and
prosecutors "have a duty to preserve and disclose potentially exculpatory evidence."
Marshall claims that the admission of the video violated his due process rights. Although
not mentioned, Marshall seems to be referring to Arizona v. Youngblood, 488 U.S. 51,
109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). This consideration is a question of law that this
court reviews de novo. State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008).

According to State v. Finley, 273 Kan. 237, 241, 42 P.3d 723 (2002) (citing
Youngblood, 488 Kan. at 58), the Due Process Clause does not impose an absolute duty
on investigators to collect and preserve "all material that might be of conceivable
evidentiary significance." If the State fails to preserve potentially useful evidence, a
defendant's due process rights have not been violated unless the defendant shows that the
State acted in bad faith. State v. LaMae, 268 Kan. 544, 550, 998 P.2d 106 (2000) (citing
Youngblood, 488 U.S. at 58). The determination of bad faith "turns on the officers'
knowledge of the exculpatory value of the evidence at the time it was lost or destroyed."
268 Kan. at 551 (citing Youngblood, 488 U.S. at 57). Whether the State acted in bad faith
is a question of fact. 268 Kan. at 551.

At the hearing on his motion in limine, defense counsel suggested that the police
officers who recorded the video had knowledge of the exculpatory value of some of the
footage. But defense counsel did not present any evidence or testimony showing that the
police officers acted in bad faith. Nor did the district court make a bad faith finding. Nor
does Marshall's brief on appeal point to any evidence that the police acted in bad faith.
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He argues only that the State failed to preserve or disclose potentially exculpatory
evidence by not recording the entire video and selecting only certain portions. Absent a
showing of bad faith, Marshall's argument fails under Youngblood. See State v. Butler,
No. 106,234, 2012 WL 4678215, at *4 (Kan. App. 2012) (unpublished opinion), rev.
denied 297 Kan. 1248 (2013).

Further, Marshall has not shown that the omitted footage from the video likely was
exculpatory. Marshall claims that the full video would support the defense's theory that
Burris instigated the incident by taking Marshall's money without providing him K2 or
gas and that Marshall was attempting only to reclaim his money or an equivalent amount
of K2. But Marshall was charged with attempted aggravated robbery. Aggravated
robbery is defined as "knowingly taking property from the person or presence of another
by force or by threat of bodily harm to any person," while inflicting bodily harm upon
any person. See K.S.A. 2015 Supp. 21-5420(a), (b)(2) (aggravated battery); K.S.A. 2015
Supp. 21-5301(a) (attempt). The video that was admitted shows that Marshall went into
the enclosed area of the store, struggled with Burris, put her in a chokehold, maintained
complete control during the altercation, and took something from under the counter. So
even if the omitted footage showed what Marshall purports—that Burris took his money
and argued with him—it would not have exculpated him from acts giving rise to the
charge of attempted aggravated robbery. Therefore, Marshall's due process rights were
not violated and the district court did not err by admitting the video.

Timeliness of Marshall's pro se motion for a new trial

Marshall next claims that the district court erred by finding his pro se motion for a
new trial untimely. Marshall states that because the "prison mailbox rule" should apply,
his motion was timely. He also argues that because his motion alleged ineffective
assistance of trial counsel and caused him to be unrepresented after he drafted it, he was
entitled to have his motion heard on its merits.
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A. Standard of Review

When reviewing a district court's denial of a K.S.A. 2015 Supp. 22-3501(1)
motion for a new trial, this court uses an abuse of discretion standard of review. State v.
Soto, 301 Kan. 969, 977, 349 P.3d 1256 (2015). Under this standard, a district court has
not abused its discretion "if a reasonable person could agree with the district court's
decision." State v. Thomas, 257 Kan. 228, 229, 891 P.2d 417 (1995). To the extent that
this court is required to interpret K.S.A. 2015 Supp. 22-3501, our review is unlimited
because statutory interpretation is a question of law. State v. Eddy, 299 Kan. 29, 32, 321
P.3d 12 (2014).

B. Timeliness

On a defendant's motion, a district court may grant a new trial if the interest of
justice requires it. K.S.A. 2015 Supp. 22-3501(1). A motion for a new trial based on any
other grounds other than newly discovered evidence "shall be made within 14 days after
the verdict or finding of guilty or within such further time as the court may fix during the
14-day period." K.S.A. 2015 Supp. 22-3501(1). This 14-day statutory time limit is
mandatory, not discretionary. State v. Holt, 298 Kan. 469, Syl. ¶ 5, 313 P.3d 826 (2013).

Marshall argues that because he was incarcerated, the prison mailbox rule should
apply. Under this rule, a prisoner's pro se documents are deemed "filed" once the prisoner
submits the documents to prison authorities for mailing. Wahl v. State, 301 Kan. 610,
615, 344 P.3d 385 (2015). But here, Marshall did not argue the prison mailbox rule
before the district court, and the district court did not make a finding under that rule. The
general rule is that issues not raised before the district court cannot be raised on appeal.
State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Exceptions to that rule exist,
see State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014), but to claim one of them,
a litigant must comply with Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) and explain in
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his or her brief why the issue is properly before the appellate court. See State v. Godfrey,
301 Kan. 1041, 1043-44, 350 P.3d 1068 (2015). Marshall has not provided such an
explanation. Accordingly, his brief is insufficient, and he has abandoned any possible
application of an exception permitting review of this issue. See 301 Kan. at 1044.

Since Marshall did not assert the prison mailbox rule in the district court and
cannot assert it now for the first time on appeal, the sole question before us is whether the
district court abused its discretion by finding Marshall's motion untimely under K.S.A.
2015 Supp. 22-3501(1). Marshall was convicted on May 20, 2014. He drafted his pro se
motion on June 2, 2014. The motion was filed with the court clerk on June 9, 2014. But
the deadline was June 3. The district court noted that there were no intervening weekends
in between June 3 and June 9 and that the clerk's office was otherwise accessible to
Marshall. At the hearing on Marshall's motion, defense counsel suggested that Marshall
probably submitted his motion on June 2. But the record does not indicate when the
motion was actually submitted to the clerk's office. A reasonable person thus would
conclude, as the district court did, that Marshall's motion was not filed until June 9,
which was several days past the statutory time limit, making it untimely.

Nor does the record indicate when Marshall submitted his motion to prison
authorities for mailing. As mentioned, defense counsel suggested at the hearing on
Marshall's motion that Marshall probably submitted his motion on June 2, but no other
evidence was presented on the issue. Marshall does not address in his brief the issue of
when he submitted his motion, arguing only that this court should apply the prison
mailbox rule. But this court cannot determine when Marshall's motion was submitted to
prison authorities because the motion was not included in the record. As the appellant,
Marshall bears the burden of designating a record on appeal that "affirmatively shows
prejudicial error." See State v. Sappington, 285 Kan. 176, 192, 169 P.3d 1107 (2007).
Because this court is without such a record, we presume that the district court's action
was proper. 285 Kan. at 192.
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C. Unrepresented by Counsel

Marshall, citing State v. Sharkey, 299 Kan. 87, 322 P.3d 325 (2014), also claims
that because his motion for new trial alleged ineffective assistance of trial counsel, he
was immediately unrepresented by counsel, which was a critical stage of the proceedings,
and that he thus should have had his motion heard even though it was untimely. In
Sharkey, the defendant filed two pro se motions, which the court deemed motions for a
new trial. The court held that the motions were a critical stage of the proceedings, thus
the defendant had a Sixth Amendment right to conflict-free counsel at the motion
hearing. 299 Kan. at 96. Sharkey found that because of his attorney's conflict of interest,
the defendant was constructively denied his right to counsel. 299 Kan. at 101.

But Sharkey is distinguishable. Both the motions in Sharkey were timely.
Marshall's motion was untimely. And the court in Sharkey noted that several federal
Circuit Courts of Appeal have determined that untimely motions for a new trial are
collateral proceedings that do not carry with them the right to counsel. See 299 Kan. at
94. The court adopted the same position, finding "there is no Sixth Amendment right to
the assistance of counsel when a preappeal motion for new trial is untimely," thus a
district court may rule on an untimely motion without appointing counsel for the
defendant. 299 Kan. at 94 (citing State v. Kirby, 272 Kan. 1170, 1192-96, 39 P.3d 1
[2002] State v. Kingsley, 252 Kan. 761, 766-67, 851 P.2d 370 [1993]). Because
Marshall's motion was untimely, it was not a critical stage of the proceeding. 299 Kan. at
94-95. Thus, Marshall's reliance on Sharkey is misplaced.

Further, nowhere in Sharkey did the court state or suggest that being denied
counsel at a critical stage in the proceedings somehow extended the time limit for
motions for a new trial under K.S.A. 2015 Supp. 22-3501(1). The issue in Sharkey,
moreover, was whether the defendant had representation at the hearing to argue the
motion, not whether he had representation at the moment he filed the motion. 299 Kan. at
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91, 96. Ultimately, Sharkey is irrelevant to this case, and we find no authority in support
of Marshall's position that a district court is required to hear an untimely pro se motion
for a new trial on the merits when that motion alleges ineffective assistance of counsel.
The district court therefore did not abuse its discretion by finding that Marshall had filed
his motion out of time.

Affirmed.