State v. Mayer

NOT DESIGNATED FOR PUBLICATION

No. 118,015

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRAVIS W. MAYER,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed August 10, 2018.
Affirmed.

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

Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., LEBEN, J., and BURGESS, S.J.

PER CURIAM: Travis Mayer was convicted of one count of fleeing or attempting to
elude a law-enforcement officer and one count of aggravated battery of a law-
enforcement officer after he tried to evade a routine traffic stop. He has appealed, raising
two claims of trial error.

His first claim relates to comments made by the trial judge after the jury, during
deliberations, asked for the transcript of the testimony of two witnesses. The district court
replied that it wouldn't provide complete transcripts of testimony but would read back
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portions of testimony. The court then had the portions of testimony the jurors had asked
about read to them. Mayer's complaint is about a comment the judge made afterward,
right before the jury took its lunch break. At that time, the judge asked the jury to rely on
its collective memory before making additional requests for transcripts.

Mayer argues that this comment improperly pressured the jury to reach a verdict
without asking any more questions. We are not persuaded: The court simply explained to
the jury that it wouldn't provide full transcripts but that it would have testimony read back
to the jury if that was needed. The court didn't abuse its discretion in making those
comments.

Mayer's second claim is that the trial judge should have granted a continuance of
the sentencing hearing so that his new attorney could investigate whether the attorney
who represented Mayer at trial had provided adequate representation. But whether to
grant a continuance is a decision we give wide deference to. And Mayer still has the
ability in a habeas corpus filing to present a claim that his trial attorney's work was below
constitutionally required standards. Under these circumstances, the trial court didn't abuse
its discretion in denying Mayer's request to continue his sentencing hearing. We therefore
affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Travis Mayer fled from a police officer when the officer tried to pull Mayer over
for having an expired license plate. The officer, Jessica Penn, turned on her flashing
lights but Mayer didn't stop. A chase ensued, starting in Emporia and ending on gravel
roads outside the city. When Mayer's car eventually began to slow down, he bailed out
before it stopped and the car slid into a ditch.

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A foot chase then began, but first Mayer and then Penn slipped into the ditch. At
one point, Penn testified, Mayer tried to grab her gun and they struggled physically.
Another officer arrived to assist, and the officers took Mayer into custody. The State
charged him with one count of fleeing or attempting to elude a law-enforcement officer
and one count of aggravated battery of a law-enforcement officer.

At a jury trial, both of the officers who arrested Mayer testified. After the jury
started deliberating, it asked for transcripts of the officers' testimony. The court sent a
written response back to the jury stating that it wouldn't provide complete transcripts of
testimony but would provide readbacks of any particular portions of testimony the jury
requested. The jury responded, asking for the testimony of one of the officers.

The district court interpreted the jury's response as a request for the officer's direct
testimony. The court brought the jury back into the courtroom; the court reporter read
back the requested testimony. After the readback and before the court recessed for lunch,
the court told the jury to rely on its collective memory before making additional requests
for transcripts when it returned to deliberations.

The jury deliberated for another hour and a half after it returned from lunch.
Without asking further questions, it found Mayer guilty on both counts.

Before sentencing, Mayer filed a pro se motion (one prepared without the help of
an attorney) to continue the sentencing hearing. Mayer claimed that his attorney at trial
hadn't provided adequate representation. At a hearing on that motion, the court allowed
Mayer's trial attorney to withdraw, appointed a new attorney to represent Mayer, and
rescheduled the sentencing hearing for a later date.

When that date arrived, Mayer's new lawyer asked for a continuance to let him
further investigate Mayer's claim that his first attorney had provided substandard
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representation. The district court denied the motion and sentenced Mayer to 56 months in
prison.

Mayer then appealed to our court.

ANALYSIS

I. The District Court Didn't Abuse Its Discretion by Informing the Jury to Rely on Its
Collective Memory before Requesting Additional Testimony Readbacks.


Mayer's first claim is that the court's response to the jury's request for transcripts
denied him his constitutional right to a fair trial because it coerced the jury into
rendering a verdict without asking more questions.

We first note that Mayer didn't object to the court's response at trial, something
that could cause a problem in presenting this issue on appeal: The general rule is that you
must raise an issue in the trial court to raise it on appeal. But even when the issue wasn't
raised in the trial court, the Kansas Supreme Court has allowed consideration of a claim
of clear error in a trial judge's response to a mid-deliberation jury question. See State v.
Lewis, 299 Kan. 828, 856, 326 P.3d 387 (2014).

We review a district court's response to a mid-deliberation jury question for an
abuse of discretion. Lewis, 299 Kan. at 856. A district court abuses its discretion if its
judgment is so arbitrary that no reasonable person would agree with it or if its ruling is
based on an error of law or fact. State v. Parker, 48 Kan. App. 2d 68, 75, 282 P.3d 643
(2012).

Here, the jury had asked for the transcript of the testimony of two witnesses. It
then amended the request to ask for a specific part of one witness' testimony. The court
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denied the request for a transcript—a handwritten, printed, or typed copy of testimony—
but had the court reporter read back the requested portion of the testimony to the jury.
The court then explained that transcripts are difficult and time-consuming to make, and it
encouraged the jury to rely on its collective memory before requesting additional
transcripts:

"Now, when you return to your deliberations, I'd ask you to keep this in mind.
You were out not a great deal more than an hour before you started requesting transcripts
in this case. You heard the testimony. The testimony is very recent in duration. There
should not be a real need for a request for transcripts at this point in time. I will not
prohibit you from having readbacks, but I will not give you transcripts of the
proceedings. They're difficult and time-consuming to make, but I ask that you rely upon
your collective memory and recollection and work to resolve these issues of fact that you
may have before you make any more requests for transcripts."

Mayer argues that the district court's comments amounted to an improperly
coercive instruction—often referred to as "an Allen-type instruction." See Allen v. United
States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). An Allen-type instruction is
one that encourages the jury to reach a unanimous verdict to avoid a mistrial. State v.
Tahah, 302 Kan. 783, 794, 358 P.3d 819 (2015). The Kansas Supreme Court has
emphasized that such instructions shouldn't be given to a jury once deliberations have
begun because they risk improperly influencing jurors to compromise their views on the
evidence simply to avoid a hung jury. Tahah, 302 Kan. at 794; see State v. Torres, 294
Kan. 135, 145-46, 273 P.3d 729 (2012).

But what the court told jurors here related only to how they should consider the
making of requests for the readback of testimony, not a prod to compromise their beliefs
in reaching a verdict. The court didn't deny the jury the ability to rehear testimony or to
weigh appropriately the evidence—and it said that it would provide readbacks of any
portions requested. While the court didn't offer transcripts, that's a reasonable decision.
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Getting transcripts prepared and proofread is a time-consuming task, and jurors might
consider transcribed evidence more significant than what they merely heard during the
trial. See State v. Smith, 258 Kan. 321, 325-26, 904 P.2d 999 (1995). We find no error in
the district court's encouragement to the jury to use its collective memory before asking
for additional testimony transcripts. The comments weren't an Allen-type instruction that
coerced the jury into reaching a verdict.

The court's response was neither based on an error of fact or law, and a reasonable
person could agree with the court's comments. We therefore find no abuse of the district
court's discretion.

II. The District Court Didn't Abuse Its Discretion by Denying the Motion for a
Continuance.

Mayer also argues the district court erred by denying his motion for a continuance
because his new attorney needed more time to investigate Mayer's claim that his trial
attorney provided inadequate representation.

Under K.S.A. 22-3401, a district court may grant a continuance "for good cause
shown." State v. Burnett, 300 Kan. 419, 436, 329 P.3d 1169 (2014). To meet the good-
cause requirement, defendants usually must show that the continuance will have some
effect on the proceedings. State v. Harris, No. 116,144, 2016 WL 7032164, at *1 (Kan.
App. 2016) (unpublished opinion). We review the district court's denial of a continuance
only for an abuse of discretion. Burnett, 300 Kan. at 436. As we've already noted, a
district court abuses its discretion if its decision is based on an error of fact or law, or if
no reasonable person would agree with it. Parker, 48 Kan. App. 2d. at 75.

Here, the district court determined that Mayer didn't establish good cause for a
continuance because there didn't seem to be any merit to the claim that his trial attorney
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could have done something different to defend the case successfully. In addition, the
court said that the defendant and his attorney could still gather evidence that could be
presented at a later time on the adequacy of the trial attorney's representation. Mayer
asserts that the denial was an abuse of discretion because investigating the claim while it
was fresh is better than waiting to pursue the claim later when memories have faded. But
mere speculation that the continuance would have resulted in a better ultimate outcome
doesn't constitute good cause. See State v. Beaman, 295 Kan. 853, 864, 286 P.3d 876
(2012). And Mayer recognizes that he still has the opportunity to present a claim that his
trial attorney provided inadequate representation in a habeas corpus proceeding under
K.S.A. 60-1507.

The district court's judgment was not based on an error of fact or law. Nor was it
so arbitrary that no reasonable person could agree with it. Rather, it was reasonable for
the district court to recognize that Mayer's counsel could still investigate and present the
claim of ineffective assistance of counsel without a continuance of Mayer's sentencing
hearing. The district court didn't abuse its discretion.

We affirm the district court's judgment.