State v. Reed

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NOT DESIGNATED FOR PUBLICATION

No. 117,718

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

NOAH DEMETRIUS REED,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; FAITH A.J. MAUGHAN, judge. Opinion filed October 5,
2018. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., MCANANY, J., and BURGESS, S.J.

PER CURIAM: Noah Demetrius Reed appeals his convictions for attempted second-
degree murder, aggravated kidnapping, and criminal threat. He claims the district court
erred in not dismissing one of the jurors at his trial. He also claims the prosecutor erred in
misstating evidence during closing argument. Consideration of these issues requires a
brief recounting of the facts.

Reed's convictions arise from a domestic disturbance in July 2016, which resulted
in Reed stabbing R.D. in the chest. The fight began in R.D.'s apartment, spilled over to a
neighbor's apartment, and then continued back in R.D.'s apartment. When the police
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arrived, R.D. and Reed were both naked and covered in blood, and R.D. had a steak knife
sticking out of her chest.

Reed claims he stabbed R.D. in self-defense after she and two accomplices
attacked him to steal his money and his marijuana. According to Reed, he and R.D.
smoked marijuana earlier in the evening and decided to take a nap. When he awoke, he
was attacked by R.D.'s two accomplices who repeatedly asked, "[W]here the weed?"
Reed contends that when he ejected the two men from R.D.'s apartment, R.D. came at
him with a knife so he turned the knife on her in self-defense.

R.D. testified that Reed began assaulting her in her apartment, continued
assaulting her in a neighbor's apartment, and then again assaulted her when they returned
to her apartment. R.D.'s neighbor, Elexia Lancaster, testified that R.D. and Reed came to
her apartment to search for a cell phone. Reed was upset because he thought R.D. had
stolen some money from him. Lancaster testified that Reed physically assaulted R.D. in
her presence. The police found signs of a disturbance and blood in the neighbor's
apartment and in R.D.'s apartment. R.D.'s blood test showed that she had not consumed
any marijuana.

Reed was charged with attempted first-degree murder, aggravated burglary,
attempted rape, criminal threat, and aggravated kidnapping.

During the lunch break on the first day of trial, juror M.I., a unit clerk in the
critical care and immediate care units at Via Christi Hospital, informed the court that she
heard some gossip, apparently from Wesley Medical Center, about the case and learned
"some details about the victim, like the stab wounds—I'm familiar with it." She said she
had no contact with R.D. She did not talk to any of R.D.'s doctors or view any of R.D.'s
medical records. The gossip she heard and her first impression favored the State, but she
believed she could decide the case based solely on the evidence presented at trial.
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Reed moved to have M.I. removed from the jury and to substitute an alternate. The
court found that there was no evidence that created a concern about M.I.'s ability to be
fair and unbiased. M.I. had no information about how the injuries occurred and "a lot of
what she has heard is probably going to be what is testified to by doctors and everything
else presented." The court denied Reed's request to have M.I. removed.

Sarah Geering, a forensic scientist in the DNA lab at the Sedgwick County
Regional Forensic Science Center, testified about the results of DNA tests of blood
samples collected from the crime scene. She stated:

"The swab collected from this bedroom doorframe is a mixture of at least two
individuals. Again, I was able to do some major/minor contributions here. The major
contributor is consistent with [R.D.]. Therefore, [R.D.] cannot be excluded as the major
contributor. Noah Reed is excluded as the major, and minor contributions to this profile
were partial and determined to be of no comparative value. So not enough minor to be
able to do anything with basically, so I can't make any comparisons to that minor. So then
a statistic gets applied in that scenario to the major only, and it's similar to the other one
as well. The major contributor is 1 in 4.5 quintillion."

With respect to blood samples collected from the breakfast bar in R.D.'s kitchen, Geering
stated:

"So here was have a mixture situation. Again, I was able to deduce out my major
contributor . . . .
"So the Swabs obtained from the breakfast bar side of counter is a mixture of at
least two. The major is consistent with the profile of [R.D.]. So therefore [R.D.] cannot
be excluded as a major. Minor contributions are attributable to Noah Reed. Therefore
Noah Reed cannot be excluded as the minor contributor to the profile.
"Again I was able to apply those assumptions saying I'm assuming its two
people, that indeed I only have two in play, and that I can assume my major and I can
assume my minor. And then I can apply those numbers, and the major would be 1 in 12.3
quadrillion, and the minor would be 1 in 47.5 million."
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She stated that she could not statistically exclude a third party as the minor contributor of
blood found on the doorframe to R.D.'s bedroom because there was not enough of a
sample to make a comparison. The only thing she could determine from this minor
sample was that it was likely from a male. She could not determine if it was consistent
with Reed or any other person because there was not enough of a sample to make this
determination.

In closing argument, the State argued in rebuttal:

"If he's fighting these men and beating him to the point where he can get them out of the
apartment on his own, ask yourselves if there would be their blood in that apartment.
Would their blood be in that apartment somewhere? But according to Sarah Geering, the
victim and the defendant are the contributors to these profiles, there is one that is partial
and of no value. But the mixture of contributors, the blood in that apartment, are
consistently the defendant and [R.D.]".

Reed objected, and the court overruled the objection, stating: "The jury was here. They
heard the testimony. They can make their decisions."

The jury convicted Reed of the lesser included offense of attempted second-degree
murder, aggravated kidnapping, and criminal threat. Reed's timely appeal brings this
matter to us.

Refusal to Remove a Juror

Reed claims that the district court erred in not removing M.I. as a juror because of
her bias against him. We review the district court's decision on this matter for any abuse
of discretion. State v. Hilt, 307 Kan. 112, 121, 406 P.3d 905 (2017). A court abuses its
discretion if its action is arbitrary, fanciful, or unreasonable, or is based on an error of law
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or fact. State v. Hilt, 299 Kan. 176, 186, 322 P.3d 367 (2014) (quoting State v. Dobbs,
297 Kan. 1225, 1232, 308 P.3d 1258 [2013]).

A juror should be discharged and an alternate impaneled if the court has
reasonable cause to believe the juror is unable to perform his or her duties. Hilt, 299 Kan.
at 186-87. One such duty is the duty to act impartially and without prejudice. See State v.
Thurber, 308 Kan. 140, 181, 420 P.3d 389 (2018). But "'juror impartiality . . . does not
require ignorance.'" 308 Kan. at 208 (quoting Skilling v. United States, 561 U.S. 358,
381, 130 S. Ct. 2896, 177 L. Ed. 2d 619 [2010]). Thus, the mere fact that M.I. heard that
a woman was stabbed does not establish bias.

Reed contends that the district court abused its discretion by basing its decision on
an error of fact, i.e., a factual finding which is not supported by substantial competent
evidence. See State v. Schaal, 305 Kan. 445, 452, 383 P.3d 1284 (2016).

The district court found no indication that M.I. could not be a fair and impartial
juror. M.I. stated that she did not know how the injury occurred or the circumstances
leading up to the injury, but that she knew that the victim suffered stab wounds. That
R.D. was stabbed obviously would be disclosed in the course of the State's case-in-chief.
M.I. said she would be able to decide the case based on what she heard at trial and not on
the gossip she heard at work. The district court understood M.I.'s testimony about how
she initially favored the State's position to mean that she favored the State prior to
becoming a juror but she would set aside that initial position once she became a juror.
The district court did not abuse its discretion by making an erroneous finding of fact.

Reed makes the global argument that given M.I.'s admission that she began the
trial favoring the State, no reasonable jurist would allow such a juror to continue to serve.
But "[i]f reasonable persons could differ as to the propriety of the action taken by the trial
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court, then it cannot be said that the trial court abused its discretion." State v. Gant, 288
Kan. 76, 82, 201 P.3d 673 (2009).

M.I. apparently came to the realization during the morning of the first day of trial
that this case involved the stabbing she had heard about at work. M.I. was asked, "Do you
think that as a juror you can uphold that oath and make a decision based only on what
you hear in the courtroom?" She responded, "I do."

Under similar circumstances, the court in State v. Zamora, 263 Kan. 340, 349, 949
P.2d 621 (1997), determined that the district court did not abuse its discretion in finding
there was no reason to believe the juror's ability to be fair and impartial was
compromised. We conclude that this is not a situation in which no reasonable person
would agree with the district court's decision to keep M.I. on the jury. Reed fails to
establish an abuse of discretion.

The State's Closing Argument

Reed claims that the State committed reversible error when it stated in closing
argument that the partial DNA sample found in R.D's apartment was "of no value" when
the witness testified that the partial sample was "of no comparative value."

The familiar process for evaluating claims of prosecutorial error is found in State
v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016):

"To determine whether prosecutorial error has occurred, the appellate court must decide
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
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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.]"

The prosecutor's remarks in closing argument must "accurately reflect the
evidence." State v. Anderson, 294 Kan. 450, Syl. ¶ 4, 276 P.3d 200 (2012). The
prosecutor is given wide latitude in presenting the evidence and the reasonable inferences
that can be drawn from the evidence. State v. Morningstar, 289 Kan. 488, 496, 213 P.3d
1045 (2009). When reviewing a prosecutor's remark, we must consider the statement in
the context of the entire argument. See State v. De La Torre, 300 Kan. 591, 612, 331 P.3d
815 (2014).

During the State's closing argument, the prosecutor stated:

"If he's fighting these men and beating them to the point where he can get them out of the
apartment on his own, ask yourselves if there would be their blood in that apartment.
Would their blood be in that apartment somewhere? But according to Sarah Geering, the
victim and the defendant are the contributors to these profiles, there is one that is partial
and of no value. But the mixture of contributors, the blood in that apartment, are
consistently the defendant and [R.D.]".

But Geering testified:

"The swab collected from this bedroom doorframe is a mixture of at least two
individuals. Again, I was able to do some major/minor contributions here. The major
contributor is consistent with [R.D.] Therefore, [R.D.] cannot be excluded as the major
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contributor. Noah Reed is excluded as the major, and minor contributions to this profile
were partial and determined to be of no comparative value. So not enough minor to be
able to do anything with basically, so I can't make any comparisons to that minor. So then
a statistic gets applied in that scenario to the major only, and it's similar to the other one
as well. The major contributor is 1 in 4.5 quintillion."

She also stated that she could not statistically exclude a third party or Reed as the minor
contributor because there was not enough of a sample to make a comparison or a
statement about the individual that contributed to the minor sample.

Reed contends that the prosecutor misstated Geering's testimony by changing
Geering's statement about the sample having no comparative value to it having no
evidentiary value. He argues that the minor sample shows that it is possible that a third
party entered the home and assaulted him as he has claimed.

The prosecutor's statement does not misstate the evidence. When read in full and
considered in context, the prosecution was arguing that if a third party was present and
attacked Reed, there would have been more than a speck of DNA present in the
apartment. A reasonable inference can be drawn from Geering's testimony that there was
not enough of the minor sample to make any sort of a difference in the case.

Besides, we are satisfied that the prosecutor's argument did not affect the outcome
of the case. The evidence of Reed's guilt was substantial and compelling. Reed claimed
he and R.D. smoked marijuana earlier in the evening, but no trace of marijuana was
found in R.D.'s blood. No marijuana was found, and no odor of marijuana was detected in
the apartment. There was no evidence, including DNA evidence, to support Reed's claim
that another person attacked him in the apartment. The DNA samples were consistent
with Reed and R.D. The neighbor testified that Reed physically assaulted R.D. while in
the neighbor's apartment. Reed admitted stabbing R.D. He stabbed her in the face, neck,
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and chest, suggesting that he was not attempting to fight off an attacker. When the police
arrived, Reed blocked their entry into the apartment. It was R.D. who called out for help.

Reed fails to establish error in the conduct of his trial.

Affirmed.