State v. Stinson

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NOT DESIGNATED FOR PUBLICATION

No. 112,655

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GLENN STINSON,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed May 27, 2016.
Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., ATCHESON and SCHROEDER, JJ.

Per Curiam: In this appeal, Defendant Glenn Stinson contests his convictions for
felony possession of marijuana and misdemeanor possession of drug paraphernalia. He
has asserted three substantive grounds for relief and an argument for cumulative error.
The members of the panel agree Stinson is entitled to no relief and, therefore, affirm the
convictions. But the members of the panel are not united in their reasoning. This opinion
briefly sets forth the issues and the general position of the judges. It is followed by a
concurring opinion from each judge.

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First, Stinson challenges an introductory instruction the district court gave the
jurors at the start of the trial advising them to follow the district court's admonitions
precluding outside communication or investigation about the case. The panel agrees the
instruction was not erroneous.

Second, Stinson challenges questions and comments from the prosecutor during
voir dire related to the jurors' decisionmaking process. Judge Buser and Judge Schroeder
find no error in the statements. Judge Atcheson would find the remarks to be improper,
though indirect, comment on jury nullification but which caused no material prejudice to
Stinson.

Finally, Stinson challenges the use of his earlier Missouri conviction to elevate the
marijuana conviction from a misdemeanor to a felony, as provided in K.S.A. 2015 Supp.
21-5706(c)(2)(B). Judge Atcheson and Judge Schroeder find Stinson has not provided a
sufficient record on appeal to review the point and, therefore, deny relief. Judge Buser
would concur in that result.

Affirmed.

* * *

ATCHESON, J., concurring: A Johnson County District Court jury convicted
Defendant Glenn Stinson of possession of both marijuana, a felony, and drug
paraphernalia, a misdemeanor. Stinson challenges the resulting judgment on several
grounds including the prosecutor's examination of potential jurors in a way implicating
jury nullification and the manner in which the prosecution proved his past conviction for
marijuana possession to charge a felony in this case. In light of the appellate record, I find
nothing requiring reversal on the points raised and, therefore, would affirm the district
court.
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Given the issues on appeal, the facts and circumstances prompting the charges are
irrelevant. I note only that in September 2013, a Merriam police officer approached
Stinson, who was sitting in a parked car, as she responded to an unrelated call. The
officer saw what she took to be marijuana Stinson had spread out on a plastic disk in
front of him. The observation proved correct. Stinson also had at least one container with
more marijuana in it.

The district attorney charged Stinson with possession of marijuana and relied on
an earlier Missouri conviction to treat him as a repeat offender, making the crime a
felony. See K.S.A. 2015 Supp. 21-5706. The Missouri conviction figures in the issues on
appeal. The district attorney also charged him with possession of drug paraphernalia. See
K.S.A. 2015 Supp. 21-5709. A jury convicted Stinson as charged in May 2014, and the
district court later imposed a controlling sentence of 11 months in prison and placed
Stinson on probation for 18 months. Stinson timely appealed and has since apparently
been granted an early release from his probation. I take up the issues on appeal in the
order Stinson has presented them.

Stinson first complains about an instruction the district court gave the jurors at the
outset of the trial to the effect that their discussing the case with others or undertaking
independent investigation could lead to a mistrial imposing "a tremendous expense and
inconvenience to the parties, the Court, and the taxpayers." Stinson likens the instruction
to an Allen charge given ostensibly deadlocked jurors informing them a jury's failure to
reach a verdict burdens the parties. See State v. Salts, 288 Kan. 263, 265-66, 200 P.3d
464 (2009) (error to instruct jurors, even at start of deliberations, that their failure to
agree on a verdict "would be a burden on both sides").

After Stinson filed his brief, the Kansas Supreme Court rejected the same
argument analogizing the preliminary instruction warning against inappropriate juror
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activity to an Allen-type instruction given to a deliberating jury. In State v. Tahah, 302
Kan. 783, 794-95, 358 P.3d 819 (2015), the court held a preliminary instruction
equivalent to the one Stinson challenges here to be legally appropriate and, hence, free of
error. The Tahah decision necessarily dispatches this point adversely to Stinson.

Stinson next challenges a portion of the prosecutor's voir dire of potential jurors
regarding their attitudes about the criminalization of marijuana possession and their
obligation to follow the law in arriving at a verdict. The prosecutor and Stinson's lawyer
understandably wanted to explore the jurors' attitudes given the nature of the case and
were appropriately permitted to inquire.

During the prosecutor's examination, however, the following exchange took place:

"[PROSECUTOR]: The first [topic] is your obligation to follow the law as jurors in this
case, one of the most—the most important issue here. [Juror C], what if you disagree with
the law the way it's written. Do you get to decide someone is not guilty because you think
the law is wrong, unfair or even stupid?
"PROSPECTIVE JUROR C: No.
"[PROSECUTOR]: Okay. You would agree you have to follow the law?
"PROSPECTIVE JUROR C: Yes."

Stinson's trial lawyer did not object. But the failure of a criminal defendant to object to a
prosecutor's comments during voir dire or argument does not foreclose appellate review
for possible error. See State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012).[*]

[*]In this case, the prosecutor's discussion of a juror's responsibilities in arriving at
a verdict was fairly elaborate. He asked similar questions of other potential jurors. The
prosecutor also asked another juror what he considered "the appropriate way" to change a
law he thought to be stupid or unfair. The juror responded: "Through the legislative
system." The prosecutor then asked the jury panel generally if "anybody disagrees with
that statement?" The transcript reflects none of the potential jurors indicated
disagreement.
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On appeal, Stinson contends the initial question and response I have cited
amounted to prosecutorial misconduct by impermissibly impinging on jury nullification.
See State v. Smith-Parker, 301 Kan. 132, 163, 340 P.3d 485 (2014) (jury instruction
mandating conviction if elements of offense have been proved—using word "will" rather
than more conditional "should"—erroneous because it "forbade" the jury from engaging
in nullification). The issue requires us to venture into the netherworld of nullification. My
colleagues take a short trip there and categorically find no error. See Buser, J. concurring,
slip op. at 13; Schroeder, J., concurring, slip op. at 13. I tread more gingerly and pause to
explain why.

In a criminal case, a jury's verdict of not guilty is essentially unimpeachable and
irreversible. As a result, a jury can with impunity acquit a defendant in complete
disregard of the applicable legal principles, the evidence, or both, thereby allowing an
obviously guilty defendant to walk free. A jury's ability to nullify the law and the facts in
a criminal case has deep historical roots. Nullification is often held up as a great equalizer
allowing ordinary citizens to strike a blow for fundamental fairness against abusive
government overreach. In given times and places, that may be true. For example, in
perhaps the most celebrated case of nullification, a jury acquitted colonial journalist John
Peter Zenger of criminal libel in 1735 for publishing biting commentaries on the royal
governor of New York. In 1973, a jury acquitted 28 activists, including several priests
and ministers, of criminal charges for seizing draft records and other documents from a
federal office building in Camden, New Jersey, to protest the war in Vietnam. But jury
nullification has an ignominious side—a side regularly on display in the last century as
all-white juries acquitted their racial cohorts of violent crimes against African-Americans
who were not infrequently targeted for having the temerity to seek equal treatment under
the law. See generally State v. McClanahan, 212 Kan. 208, 510 P.2d 153 (1973); Ilya
Somin, "Rethinking jury nullification," The Washington Post, August 7, 2015, (accessed
March 30, 2016) (hardcopy on file with Clerk of the Appellate Courts.)
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Nullification rests on an unchecked power of the jurors, not a legal right belonging
to them or to a defendant. That power actually conflicts with the duty of jurors to follow
the law and fairly find the facts to render a "true" verdict. See State v. Cash, No. 111,876,
2015 WL 5009649, at *4 (Kan. App. 2015) (unpublished opinion). Jurors in criminal
cases are typically sworn "to try the case conscientiously and [to] return a verdict
according to the law and the evidence," as are civil jurors. K.S.A. 2015 Supp. 60-247(d);
Cash, 2015 WL 5009649, at *4.

One of the paradoxes of jury nullification lies in the silence that shrouds it.
Although jurors hold the power, nobody involved in the criminal justice process—the
parties, the lawyers, or the district court—may so much as mention that power in their
presence. See McClanahan, 212 Kan. at 215-16 (no jury instruction should be given on
nullification); State v. Chambers, No. 111,390 2015 WL 967595, at *8-9 (Kan. App.
2015) (unpublished opinion) (district court properly precluded defense counsel from
arguing for jury nullification). So a defense lawyer could not question potential jurors in
a manner suggesting they might disregard the law and evidence if chosen to hear the case.
Nor could he or she in closing argument ask the jurors to acquit the defendant in
disregard of the law or the evidence. That is the rule in Kansas and elsewhere. Chambers,
2015 WL 967595, at *8-9 (citing authority from numerous federal and state courts
precluding discussion with or argument to jurors promoting nullification).

That brings me to the prosecutor's inquiry and the juror's response during voir dire.
As posed, the question taken with the answer effectively engenders a false legal
construct. In a criminal case, jurors do get to decide the defendant is not guilty because
they think the law is stupid (or for other extraneous reasons)—that's the essence of jury
nullification. They shouldn't, but they can. Given the well-accepted prohibition on any
suggestion to prospective or sitting jurors that they hold a power of nullification, the
converse would seem to be a reasonable corollary: The parties ought not be allowed to
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affirmatively imply or assert there is no such power. The prosecutor's question and the
prospective juror's answer here essentially created just that sort of affirmative
representation.

During voir dire, the lawyers can ask potential jurors both if they understand they
have a duty to follow the law as explained by the district court and if they would have
some difficulty fulfilling that duty. Proper inquiries would be directed to and framed
around the jurors' duty or obligation. More abstract or indefinite questioning much more
readily spills over into the nullification netherworld. The prosecutor's question here was
not tethered to duty and really touched directly on jury nullification without using that
term.

I am disposed to say the prosecutor improperly questioned the prospective juror by
discussing what amounts to jury nullification—a topic that is supposed to be off-limits to
both sides in a criminal trial. And I would suppose Stinson has some claim for relief. In
Smith-Parker, the Kansas Supreme Court held that a jury instruction forcefully, if
implicitly, directing jurors away from possible nullification was properly weighed in the
defendant's successful request for a new trial based on cumulative error. 301 Kan. at 164-
65, 168. With those givens, I now examine the ostensible misstatement for prejudice to
the defendant using the well-established criteria deployed for that purpose:

"'(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed
ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors. None of these three factors is individually controlling. Moreover, the third
factor may not override the first two factors unless the harmless error tests of both K.S.A.
60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v.
California, 386 U.S. 18, [22-24,] 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) [conclusion
beyond a reasonable doubt that the error . . . changed the result of the trial], have been
met. [Citations omitted.]'" State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).
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The Kansas Supreme Court has consistently adhered to this test. See State v. Hudgins,
301 Kan. 629, 646-47, 346 P.3d 1062 (2015); State v. De La Torre, 300 Kan. 591, 608,
331 P.3d 815 (2014). Applying those criteria, I find no material prejudice and no
reversible error.

The prosecutor's inquiry I consider improper cannot be characterized as gross and
flagrant, especially given the state of the law on jury nullification. As I have said, the
general subject matter—potential jurors' willingness and ability to fulfill a duty to follow
the law—was entirely appropriate for the selection process. That seems particularly true
when a defendant has been charged with simple possession of marijuana. I have serious
reservations about the way the inquiry was phrased—better tailored alternatives easily
could have been used to get at the wholly legitimate matter of duty. But my concern now
doesn't convert a voir dire examination 2 years ago into a gross or flagrant impropriety.
For much the same reason, I don't see the prosecutor's statements as evincing ill-will.
Again, the law is hardly clear. And the prosecutor skirted neither a district court order nor
a ruling on an objection related to that line of questioning. Finally, the State presented a
strong evidentiary case to the jury. Accordingly, Stinson cannot show prejudice adversely
affecting his right to a fair trial. In this circumstance, the two criteria bearing on the
character of the prosecutor's conduct would seem to be more important. But that also
suggests a sanction aimed directly at the prosecutor might be more appropriate than
upsetting a conviction.

That raises what seems to be another paradox of jury nullification when it comes
to fashioning a remedy—a paradox for which I disclaim any particular insight. As I have
said, a criminal defendant has no right to jury nullification. Theoretically, then, a
prosecutor's comments, however flagrant or spiteful, dissuading jurors from nullification
do not compromise any right inhering in a fair trial in the sense of a proceeding
conforming to established substantive and procedural rules. Indeed, a jury rendering a
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nullification verdict deliberately breaks those rules. Sometimes, the result can be viewed
as serving a higher purpose grounded in principles of absolute justice. But not always. I
am, thus, left to ponder how much allowance the judicial process ought to make to
protect something that is itself antithetical to the process. In this case, I am comfortable
concluding Stinson has failed to show some sort of reversible error.

Stinson next contends the purported instructional error and the prosecutor's voir
dire considered together denied him a fair trial. Appellate courts may weigh the overall
impact of multiple trial errors and should grant relief if cumulative effect deprives the
defendant of a fair hearing even when each error individually might be considered
harmless. Smith-Parker, 301 Kan. at 167-68. I see only one possible error, and my
colleagues find none. So there is nothing to aggregate. Cumulative error, therefore, does
not come into play. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).

Finally, Stinson argues his Missouri conviction for possession of a controlled
substance could not properly have been used as the basis for charging him with felony
possession of marijuana in this case and sentencing him accordingly. He submits a jury
had to determine if the Missouri conviction involved marijuana rather than some other
controlled substance. Because neither the documents the State relied on in proving the
Missouri conviction at Stinson's preliminary hearing nor any other documents pertaining
to that conviction have been included in the record on appeal, we cannot determine
whether that is correct. But Stinson, as the party claiming error, had an obligation to
provide a sufficient record for appellate review. See State v. Kidd, 293 Kan. 591, 601,
265 P.3d 1165 (2011); State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008); Harman v.
State, No. 108,478, 2013 WL 3792407, at *1 (Kan. App.) (unpublished opinion) ("When
there are blanks in that record, appellate courts do not fill them in by making assumptions
favoring the party claiming error in the district court."), rev. denied 298 Kan. 1202
(2013).

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The issue was not raised in the district court. And the State says it is moot because
Stinson has been released from probation. I put aside challenges as to whether the issue
was preserved for appeal or remains legally viable. I outline briefly Stinson's argument
and explain why we should not consider it on this record.

To be convicted of felony possession of marijuana under K.S.A. 2015 Supp. 21-
5706, the defendant must have a previous conviction for possession of marijuana under
Kansas law or "under a substantially similar offense from another jurisdiction." K.S.A.
2015 Supp. 21-5706(c)(2)(B). The crime is otherwise a misdemeanor. I accept as a
general proposition that Stinson faced harsher punishment for the felony charge than he
would have for the misdemeanor.

During Stinson's preliminary hearing, the State offered an exhibit described as "a
certified conviction from a prior conviction for possession of marijuana from Dallas
County, Missouri" that was admitted without objection. Relying on that document and
the other evidence, the district court bound Stinson over for trial on the felony possession
charge. At the conclusion of the preliminary hearing, the district court released that
document and other exhibits to the State. The exhibit was not made part of the record
then, and it is not part of the appellate record now.

The past conviction was not treated as an element of the charged offense at trial,
so no documents related to it were offered or admitted then. The jurors were not informed
of Stinson's Missouri conviction or any circumstances related to it. Stinson did not
dispute the Missouri conviction at the sentencing hearing.

On appeal, Stinson says that State v. Dickey, 301 Kan. 1018, 1021, 350 P.3d 1054
(2015), and Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438
(2013), mandate that a jury determine if his Missouri conviction was for possession of
marijuana because the Missouri statute simply criminalizes the possession of controlled
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substances generically. The Dickey and Descamps decisions protect a criminal
defendant's right to jury trial set out in the Sixth Amendment to the United States
Constitution. They apply the rule established in Apprendi v. New Jersey, 530 U.S. 466,
490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), that a fact, other than a previous
conviction, used to increase a criminal defendant's penalty beyond the statutory
maximum must be proved to a jury beyond a reasonable doubt.

As explained in Dickey, a fact may be discerned from a past conviction if that fact
forms an essential component or element of the crime, as set forth in the applicable
statutes. Dickey, 301 Kan. at 1037. If the governing statutes establish multiple ways of
committing a given crime, a court may review documents pertaining to the defendant's
conviction, such as the complaint or judgment, to determine the particular statutory
violation. 301 Kan. at 1037-38. The documents may not be used to prove the fact itself
but merely to point out the applicable statutory violation underlying the crime of
conviction. The fact must then be evident from the statutory elements for that way of
violating the statute. That is, the court must look to the statutory definitions or elements
of the crime of conviction to discern the fact rather than the evidentiary circumstances
supporting the defendant's guilt. Descamps, 133 S. Ct. at 2283.

Before addressing Stinson's argument and the sufficiency of the appellate record, I
mention a respectable rejoinder that would undercut the merits: The classification of the
crime against Stinson as either a misdemeanor or a felony does not directly increase the
punishment and, therefore, does not implicate Apprendi, Descamps, or Dickey at all. The
classification arguably does so only indirectly and simply as a byproduct of the
legislative determination to elevate the offense from a misdemeanor to a felony for repeat
offenders. Given my narrower disposition of the issue, I need not and do not delve further
into those implications.

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The statute Stinson relies on states in pertinent part: "Except as authorized by
sections 195.005 to 195.425, it is unlawful for any person to possess or have under his
control a controlled substance." Mo. Rev. Stat. § 195.202. But among the statutes
referenced and incorporated in Mo. Rev. Stat. § 195.202 is Mo. Rev. Stat. § 195.017 that
sets out various schedules listing specific drugs and other substances that are controlled
in Missouri. Possession of some of the listed substances is prohibited; the possession of
others is restricted or otherwise regulated. One schedule in Mo. Rev. Stat. § 195.017
expressly identifies and lists marijuana. Accordingly, the elements of the Missouri crime
of possessing a controlled substance are set out in Mo. Rev. Stat. § 195.017 and Mo. Rev.
Stat. § 195.202. But Mo. Rev. Stat. § 195.202 alone fails to fully define the crime or its
elements, since it does not establish what substances are controlled in Missouri. In turn,
the schedules in Mo. Rev. Stat. § 195.017 do and, in doing so, identify multiple ways of
violating the law.

Consistent with Dickey and Descamps, the district court in this case could review
the certified judgment of conviction or other documents from Stinson's Missouri
conviction to determine the way he violated that state's criminal prohibition on
possessing controlled substances. If the certified judgment from Missouri proving
Stinson's conviction cited both Mo. Rev. Stat. § 195.202 (the general statute
criminalizing possession of controlled substances) and the particular scheduled listing for
marijuana in Mo. Rev. Stat. § 195.017, it would sufficiently identify the factual basis of
the crime to satisfy the requirements of Dickey, 301 Kan. at 1037. If the document did
not, then the State in this case presumably would have had to establish in another way
that the Missouri conviction was for marijuana rather than some other controlled
substance—for example, either through different documents referencing the statutory
listing for marijuana or by showing that fact had been proved to a jury.

The certified Missouri conviction is not in the record, and I cannot presume it to
be insufficient. Stinson, therefore, has failed to demonstrate any error in that respect.
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Having considered the issues Stinson has presented, I find no error materially
affecting his rights and no basis for reversing his convictions or sentence.

* * *

BUSER J., concurring: I concur with the judgment of our court. I write separately
for two reasons. First, rather than presume the prosecutor's voir dire inquiries were error,
I would find they were not erroneous. I am unaware of any precedent wherein similar
voir dire inquiries were found by a Kansas appellate court to violate the concept of
nullification. Moreover, both Stinson and the State proposed a jury instruction that
advised the jurors they were to base their verdict entirely upon the evidence produced at
trial and the law instructed by the district court. The prosecutor's voir dire questions were
consonant with this agreed-upon instruction.

Second, I do not join in Judge Atcheson's ruminations about the concept of
nullification because they are unnecessary to deciding the narrow issue on appeal. As our
Supreme Court recently stated: "'"Dicta in a court opinion is not binding, even on the
court itself, because the court should consider the issue in light of the briefs and
arguments of counsel when the question is squarely presented for decision." [Citation
omitted.]' State v. Cummings, 297 Kan. 716, 725-26, 305 P.3d 556 (2013)." State v.
Toliver, 52 Kan. App. 2d 344, 355, 368 P.3d 1117 (2016), petition for rev. filed February
19, 2016.

* * *

SCHROEDER, J., concurring: I concur in Judge Atcheson's decision finding the
initial jury instruction was legally proper because we must follow our Supreme Court's
decision in State v. Tahah, 302 Kan. 783, 794-95, 358 P.3d 819 (2015). I also concur
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with that part of Judge Atcheson's decision finding Stinson failed to provide a sufficient
record on appeal to challenge the use of his prior Missouri conviction to support his
felony conviction for possession of marijuana. See K.S.A. 2015 Supp. 21-5706.

Finally, I join in Judge Buser's concurrence finding the prosecutor's voir dire was
proper.