State v. Vigil

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NOT DESIGNATED FOR PUBLICATION

No. 118,670

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

VENANCIO VIGIL, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed February 14,
2020. Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., ATCHESON, J., and WALKER, S.J.

PER CURIAM: In 2017, a jury found Venancio Vigil Jr. guilty of attempted second-
degree murder and aggravated battery. He was sentenced to a controlling term of 247
months in prison. District Judge Joseph L. McCarville III presided over the preliminary
hearing, seven-day jury trial, and sentencing. Vigil was represented by Lynn Burke and
Christine Jones.

Vigil appeals the convictions, contending that three instances of judicial comment
error by the district judge violated his right to a fair trial. Upon our review, while we find
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that judicial comment error did occur, we are convinced the comments did not result in
reversible error. Accordingly, we affirm Vigil's convictions.

ANALYSIS

On appeal, Vigil points to three instances where he asserts the district judge made
improper comments about defense counsel in this criminal proceeding. In the first
instance, Vigil complains that during the preliminary hearing the judge said he would
"smack" defense counsel if she did not stop talking over a witness' responses to her
questions. The second remark occurred during the jury trial when the judge referred to
defense counsel's request to recess the trial early because she needed to attend an event
involving her daughter. The judge told the jury: "It's one of those mother things." The
third group of comments relates to the judge's lengthy admonition to defense counsel
regarding cross-examination questions and admission of evidence which, in the judge's
opinion, were improper impeachment and contrary to his preferred practice for admitting
evidence of out-of-court statements. Based on these three comments, Vigil claims a
violation of his right to a fair trial.

A brief summary of the law pertaining to judicial comment error and our standard
of review is necessary. First, our Supreme Court has recently distinguished between
judicial misconduct and judicial comment error. "[A]n erroneous judicial comment made
in front of the jury that is not a jury instruction or legal ruling will be reviewed as
'judicial comment error' under the . . . constitutional harmlessness test." State v. Boothby,
310 Kan. 619, 620, 448 P.3d 416 (2019). This distinction places the burden on the party
benefitting from the error to show that the error did not affect the outcome in light of the
entire record: "We found that erroneous remarks in the form of 'judicial comment error'
resemble prosecutorial error. Thus, the 'logic behind [State v.] Sherman [305 Kan. 88,
109, 378 P.3d 1060 (2016)]'s 'error and prejudice' rubric for prosecutorial error applies
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with equal force to judicial comment error.' [Citation omitted.]" State v. Johnson, 310
Kan. 909, 917, 453 P.3d 281 (2019).

Second, our standard of review provides that appellate courts exercise "'unlimited
review over judicial misconduct claims, and review them in light of the particular facts
and circumstances surrounding the allegation.' [Citation omitted.]" Boothby, 310 Kan. at
624. A judicial comment error inquiry "must be conducted on a case-by-case basis,
always informed by existing caselaw concerning when judicial comments fall outside a
permissible latitude." 310 Kan. at 627.

Third, and of particular relevance to this appeal where there were no
contemporaneous objections to the district judge's comments, "'[w]hen a defendant's right
to a fair trial is alleged to have been violated, the judicial comments are reviewable on
appeal despite the lack of a contemporaneous objection.' [Citations omitted.]" 310 Kan. at
628.

Finally, to the extent this court reaches a harmless error analysis, the State must
show harmless error under the constitutional harmless error standard provided in
Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), and
State v. Ward, 292 Kan. 541, 568-69, 256 P.3d 801 (2011). Each of the claimed errors
will be addressed individually.

Comments Made During the Preliminary Hearing

Vigil first complains of comments made by Judge McCarville during the
preliminary hearing. Burke was cross-examining the complaining witness, Francisco
Gracia Jr., when the court reporter interjected and asked Burke to stop talking over the
witness in order to preserve an accurate record. The judge said to Burke, "You've been in
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court before, maybe he has but not as much as you before so you need to be sure we have
a clean record because you're a professional." Burke replied, "We will work together."

The district judge then said to Gracia, "I'll try and stop you for a minute to clarify.
Mr. Gracia, if she interrupts your answer I'm going to smack her, okay? She's been doing,
been interrupting your answers a lot because you're not saying exactly what she hopes
you say." (Emphasis added.) Burke countered, telling Gracia, "I don't know that I want
you to say something as much as I want to just be able to clarify." The judge then
observed, "Miss Burke, when you interrupt him I guess I don't know why you're
interrupting him because if you want an answer you should just let him answer."

Burke did not contemporaneously object to the district judge's remarks. After the
preliminary hearing, however, Vigil filed a motion requesting that the judge recuse
himself from presiding over the upcoming trial based on his comment made during the
preliminary hearing.

In considering Vigil's recusal motion, Judge McCarville explained that he
expected Burke to keep an accurate record because she is the professional and, when
Burke responded with "[w]e will work together," he believed that Burke did not
understand what he was admonishing her for, or that she did not want to admit that she
was interrupting the witness. The judge advised that he also wanted to insure the witness
understood that he was not going to hold him responsible for Burke's behavior. The judge
found there was not a valid basis for recusal and stated that he intended to afford Vigil a
fair trial.

Vigil presented the recusal motion to Chief Judge Patricia Macke Dick who held a
hearing in accordance with K.S.A. 20-311d(a). In a written order denying the recusal
motion, the chief judge wrote:

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"The Attorney had consistently, during her examination of the witness, interrupted and
talked over the witness's answers. The Court should have corrected her before the court
reporter had to take steps to preserve the record. When the Attorney chose not to
acknowledge her responsibility in creating the problem and failed to make any
commitment to change, the Court was left with the likelihood that the witness would be
confused or discouraged from giving full answers. The Court had observed that the
witness had actually been very responsive to the questions put to him and had not given
unresponsive answers but rather answers that quite fairly responded to the questions
propounded. Therefore, the Court advised the witness that the Attorney would receive a
response from the judge if she continued to interrupt and talk over the witness."
"A reasonable person would not believe that the assigned judge is unable to
decide the issues in this case fairly and equitably without bias or prejudice."

Although on appeal Vigil complains of the district judge's comments made during
the preliminary hearing, he does not appeal the denial of the recusal motion. Without any
substantive argument, Vigil simply complains: "Judge McCarville, who is male, first
expressed hostility toward Burke by threatening her with physical violence during the
preliminary hearing."

In response, the State asserts the district judge's comments

"could be interpreted as his effort to control [Burke's] behavior in the courtroom through
his rulings from the bench. There is nothing to suggest he was seriously talking about
committing physical violence. . . . Nonetheless, the State concedes the comment was
error, however it did not affect the outcome of the trial."

We agree with the State. Viewed in context, the district judge's improper comment
was a glib remark intended to emphasize the importance of defense counsel not
interrupting the witness rather than an actual threat to do bodily harm. Still, the Code of
Judicial Conduct specifically requires that a judge "be patient, dignified, and courteous to
litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the
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judge deals in an official capacity." (Supreme Court Rule 601B, Canon 2, Rule 2.8(B)
(2019 Kan. S. Ct. R. 447); see State v. Hayden, 281 Kan. 112, 125, 130 P.3d 24 (2006).
Judges should refrain from disrespectful and demeaning remarks in carrying out their
official duties since these comments are unnecessary, easily misconstrued as biased, and
they distract from proper judicial decorum in the courtroom.

While the district judge's impertinent comments were clearly improper, no jury
was present, the comments were brief, and, as found by the chief judge, we discern no
bias against Vigil in the content of the remarks. Accordingly, employing the
constitutional harmless error test, we are convinced there was no prejudice to Vigil's right
to a fair trial.

Comment Regarding Family Obligation

During the jury trial, Vigil contends the district judge made a "sexist and
disparaging" comment towards Jones. Earlier in the day, out of the presence of the jury,
Jones informed the judge that her daughter, a high school senior, was getting recognized
at an awards ceremony. Jones asked for "one tiny favor," that the court recess about 10 to
15 minutes early in the evening so she could attend the event. The judge replied, "We'll
try as hard as we can." Jones thanked the judge.

At the end of the day, the judge advised the jury, "And for everybody's edification
Miss Jones has got a child who has a commitment; she wants to go to that. It's one of
those mother things, I guess." The prosecutor then requested a bench conference, after
which the judge advised the jury that due to the State's inability to present any further
witnesses that day, "the good news is I'm going to let you go early tonight. So we'll be
excusing you now, 4:30, or whatever." Jones did not contemporaneously object to the
judge's comment.

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Once again, Vigil's appellate argument is brief. Vigil contends the remark "was
just as sexist and disparaging as the one made by the trial judge in Plunkett that he was
glad the female defense counsel got married because he could not pronounce her former
last name." See State v. Plunkett, 257 Kan. 135, 138, 891 P.2d 370 (1995).

Plunkett provides scant support for Vigil's argument. Although our Supreme Court
noted that the trial judge in Plunkett made the comment during jury orientation, the basis
for finding prejudicial judicial misconduct was:

"The potential combined effect of Judge Watson's stated suspicion of defense counsel's
motive for sitting away from the bench, his praise for the prosecutor, his lack of praise for
defense counsel, and his suggestion that he knew something he could not reveal about
one of the defense attorneys put Plunkett's credibility in question from the start, before
the jury was even selected. The credibility of witnesses was paramount in deciding the
outcome of the instant case." 257 Kan. at 139.

In short, the glib reference in Plunkett regarding defense counsel's maiden name
was not a determining factor in finding reversible error. The judge's other improper
comments which implied both partiality to the State and prejudice to defense counsel
constituted the more serious judicial misconduct.

Returning to this appeal, the State acknowledges the district judge's comment was
in "poor taste" and "not the best use of words by Judge McCarville." Nevertheless, the
State argues that the remark did not affect the verdict considering the entire record.

We agree that the remark about maternal obligations was unnecessary, insensitive,
and improper. This comment added nothing to the orderly progress of the trial, and the
district judge should have dismissed the jury for the day without mentioning Jones'
family matter. We reprise the prior legal authority we cited with regards to the judge's
preliminary hearing remarks. Additionally, we point to our Supreme Court's guidance
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that "[t]he judge's comments and rulings should be limited to what is reasonably required
for the orderly progress of the trial and should refrain from unnecessary disparagement of
persons or issues." State v. Miller, 308 Kan. 1119, 1155, 427 P.3d 907 (2018).

Was this error reversible? Applying the constitutional harmless error test, we are
convinced the error did not affect the outcome of the trial in light of the entire record. See
Ward, 292 Kan. at 568-69. First, although flippant, the remark was not necessarily
disparaging of Jones. It could have been positively viewed by the jury as an indication
that Jones was not just a lawyer but a devoted mother to her daughter. Second, the jury
was informed that the reason for the early evening recess was not due to Jones but the
State's inability to procure the next witness. Third, no bias against Vigil was shown, as
the record indicates that earlier in the day the judge was agreeable to accommodating
Jones' request. The judge's passing comment did not adversely impact Vigil's right to a
fair trial.

Comments Made in Ruling on State's Objections and Admission of Defense Evidence

Finally, prior to trial and out of the presence of the jury, the district court informed
the parties of the procedure they should follow when questioning witnesses. This
procedure related to the manner of impeaching witnesses, avoiding hearsay, and the use
of evidence from law enforcement bodycam footage. On several occasions, in response to
the prosecutor's objections, the district court explained to Burke the reasons for sustaining
the prosecutor's objections or not admitting evidence offered by the defense.

The district judge's comments at issue relate to legal rulings he made in response
to the prosecutor's objections or the offer of evidence by the defense. However, on
appeal, Vigil does not object to the district court's rulings as judicial misconduct. Rather,
Vigil objects to the remarks made by the judge in explaining his rulings to defense
counsel. As a result, we evaluate whether these comments were judicial comment error.
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First, Vigil complains of comments made by the district judge in sustaining the
State's objections to defense counsel's cross-examination of Officer Bryan Carey. After
Burke played video footage from Officer Carey's bodycam the following colloquy
occurred:

"Q. (By Ms. Burke) At a certain point in the video we hear someone approaching
screaming.
"A. Yes.
"Q. Did you hear that?
"A. I did.
"Q. Who was that person?
"A. I, I do not know who that person was. I believe it was a family member, though.
"Q. Wasn't it, in fact, the alleged victim's niece?
"[THE STATE]: Objection, he just said he doesn't know.
"THE COURT: Miss Burke, I'm—
"MS. BURKE: Judge, I'm just trying—
"THE COURT: I tried to explain it to you, okay. When he says I don't know then
you can't make up facts and ask him to agree with that. Because if he agreed with that
that would be a lie.
"MS. BURKE: I understand, judge. I'm trying to refresh his memory.
"THE COURT: Well, when he says, when he says he doesn't know there is no
memory to refresh. You're trying to get him to agree to something that he doesn't know
which would not be true. So that's why we have an objection called assumes facts not in
evidence.
"MS. BURKE: Thank you, judge." (Emphasis added.)

On appeal, Vigil complains that the district judge's reference to "mak[ing] up
facts" amounted to a "chastisement" of Burke in front of the jury.

Viewed in context, we question whether the five words complained of constituted
a chastisement of Burke. The district judge's explanation did not tend to discredit defense
counsel. The reasons put forth by the judge clarified a rather basic rule of questioning a
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witness—if the witness testifies that he or she does not know the answer to the question,
it is improper to then suggest a particular fact is the witness' answer. The judge's
explanation made clear that he was sustaining the objection because a rule of evidence or
procedure was not followed, not that Burke was dishonest.

The second judicial comment which Vigil complains of relates to the district
judge's use of the term "turncoat witness" in advising Burke as to his rulings on
impeaching a witness and admission of the bodycam footage of Officer Carey. During
cross-examination of Officer Carey, the State objected to Burke's question based on the
officer's bodycam video footage. The judge sustained the objection whereupon Burke
sought guidance from the judge:

"MS. BURKE: So, judge, I don't want [the State] to have to continue objecting.
So for clarification, if I have a witness subpoenaed I cannot ask the officer he was talking
to what he said?
"THE COURT: Correct. Until after the witness testifies. As I explained before
we brought the jury in this morning, we're going to use the procedure suggested by
Professor and Judge Barbara in his book about how you put the witness on and then find
out if they're a turncoat and then you can confront them with their prior inconsistent
statement.
"MS. BURKE: Thank you, judge. (Emphasis added.)

Shortly thereafter the State objected again to Burke's questions based on hearsay,
and the following exchange occurred:

"THE COURT: Sustained. Miss Burke, this is exactly what I just talked to you
about. Okay. You're saying, you're asking for substantive evidence about what stuff was
in the video. I've explained to you I don't know how many times so Mr. Schroeder's
probably going to just need to kind of assume an athletic stance there and just object so
he can object to every one of your questions unless you assume another basis for your
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questions other than asking this officer to testify to the, to facts asserted by other people
in that video.
"MS. BURKE: Well, then, judge, I think I'll just need to recall Officer Gates—
I'm sorry, Officer Carey after we've had the witnesses testify what they said.
"THE COURT: You may have to do that, yes."

Later, Burke offered Officer Cory Schmidt's bodycam footage into evidence as an
exhibit, and the district judge declined to admit it. The judge pointed out:

"THE COURT: All right. As I explained to you last week, Miss Burke, we're not
going to do trial by video. This falls under KSA 60-460(a) and in reading the treatise of
then Professor or Judge Barbara, he had a couple of careers, he talks about the use of this
statute and whether or not the court should in its discretion allow prior out of court
statements of witnesses who are present for cross-examination. And he says it is a matter
which the trial court must determine on the facts of each case by careful exercise of
judicial discretion. Generally the court should declare a witness a hostile witness before
allowing evidence under 60-460(a) and it goes on to cite some other case, cases.
"On the previous page he talks about how this, we should have—this provision is
aimed at the turncoat witness who recants prior testimony. Based upon the available
evidence I have no reason to believe that Officer Schmidt is a turncoat witness or that he
is a hostile witness. In fact, it's my observation he has attempted to respond to each and
every one of your questions and therefore there's no reason to admit prior out of court
statements.
. . . .
"MS. BURKE: Thank you, judge." (Emphases added.)

Vigil argues that the remarks italicized above were improper. He emphasizes that
"[b]y explicitly stating that Officer Schmidt was not a 'turncoat', [the judge] endorsed that
witness' credibility." On the other hand, the State contends the comments were necessary
in light of Burke's failure to comply with the judge's rulings.

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Burke did not contemporaneously object to the district court's rulings, instructions,
or comments. The following day, however, Vigil moved for a mistrial due to the district
court's evidentiary rulings. Jones informed the judge that the evidence rules allow a party
to introduce prior inconsistent statements before a subpoenaed witness has testified. In
response, Judge McCarville acknowledged that Jones was correct, but that the procedure
he employed during trial was the better practice. The judge thoroughly explained his
reasons for the rulings on hearsay, turncoat witnesses, prior inconsistent statements, and
denied the motion.

Of note, Vigil does not appeal the denial of the motion for mistrial or the propriety
of the judge's evidentiary rulings at trial. As a result, we will not consider those issues
because the appellate issue before us has nothing to do with the substance of the district
judge's evidentiary rulings. We express no opinion on the substance of the district judge's
views about hearsay, turncoat witnesses, and prior inconsistent statements. Rather, we
focus our attention on the manner in which the district judge communicated those rulings
at some length to the lawyers in front of the jury.

The narrow question presented by Vigil as to the district judge's comments on
turncoat witnesses is whether the judge erred in making these comments because they
improperly bolstered the credibility of Officer Schmidt. Vigil argues the judge's
comments endorsed the officer's credibility by stating that he was not a turncoat witness.

Judges should exercise caution when speaking in front of a jury because juries
have a natural tendency to look to a judge for guidance. State v. Hamilton, 240 Kan. 539,
547, 731 P.2d 863 (1987). These duties are especially important when a witness'
credibility is involved:

"'The same rule applies with respect to the credibility of a witness and a judge should
exercise great care and caution to say nothing within the hearing of the jury which would
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give them an indication of what he thought about the truth or falsity of any part of the
testimony. . . . The judge's attitude and the result he supposedly desires may be inferred
by the jury from a look, a lifted eyebrow, an inflection of the voice—in many cases
without warrant in fact.'" 240 Kan. at 547.

In Vigil's case, it is apparent that Burke had difficulty complying with the
procedures that the district judge outlined prior to trial regarding evidentiary matters. In
response, the judge made extended remarks in an effort to explain his rulings to Burke.
During these remarks, the judge stated that he did not consider Officer Schmidt a turncoat
witness. A turncoat witness is a legal designation describing "[a] witness whose
testimony was expected to be favorable but who becomes (usually during the trial) a
hostile witness." Black's Law Dictionary 1921 (11th ed. 2019).

The crux of Vigil's argument is the assumption that because the district judge said
the officer was not a turncoat or hostile witness, the jury would conclude that the judge
believed Officer Schmidt was a credible witness. While Vigil's argument is speculative,
we are persuaded that the lengthy comments made by the judge on this evidentiary topic
were in error because they were communicated in front of the jury. Consequently, a jury
might misinterpret the judge's remarks on the meaning of a turncoat witness or surmise
the judge believed defense counsel was an ineffective advocate for the defense. The risks
of using the legal term in an extended explanation in front of the jury outweighed any
potential benefits. When it became apparent that defense counsel was having difficulty
complying with the judge's trial procedures, the better practice provides that a judge's
lengthy remarks to counsel should be made outside of the jury's presence.

Were the district judge's comments made in these two instances reversible error?
No. Applying the constitutional standard, we are convinced they were harmless. The
judge did not comment on the credibility of the officers or otherwise suggest bias against
Vigil or defense counsel. The judge did not comment on the merits of the defense as
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Vigil suggests, but he made clear that the witness could not yet be considered a turncoat
witness—a legal designation—based on the testimony provided at that point in the trial.
The judge also indicated his willingness to recall the officers after impeaching witnesses
testified. In explaining his rulings and admonishing defense counsel, the judge did not
engage in rude, offensive, or derogatory language, and there is no indication from the
record that the judge's demeanor was not judicial. Rather, the judge's reference to a legal
treatise to explain his rulings shows his intent was educational rather than denigrating.
The "[m]ere possibility of prejudice from a judge's remark is not sufficient to overturn a
verdict or judgment." State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002).

Although we have discussed the reasons why, in each instance cited by Vigil, we
are convinced the judicial comment error did not affect the trial outcome in light of the
entire record, there are two additional reasons to conclude that no error, either
individually or collectively, was reversible.

First, the district court issued a limiting instruction directing the jury to examine
only the facts and law, and not the district judge's reasons in making evidentiary rulings:

"At times during the trial I have ruled on the admissibility of evidence. You must
not concern yourselves with the reasons for these rulings. I have not meant to indicate
any opinion as to what your verdict should be by any ruling that I have made or anything
I have said or done."

Our Supreme Court has recognized that jury instructions may mitigate prejudice
from improper judicial comments. See Boothby, 310 Kan. at 629 (finding harmless error
when the comments were attenuated by "the rest of voir dire, the evidence at trial, and the
jury instructions, which told the jury to 'decide this case only on the evidence
admitted' . . . and [told] to base the verdict 'entirely upon the evidence admitted and the
law as given in these instructions'").
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Second, in addition to this jury instruction, the jury considered the substantial
incriminating evidence presented over the seven-day trial. In brief, the jury heard
eyewitness testimony from the victim, Gracia, who identified Vigil as the person who
stabbed him. Gracia and Vigil were cousins and, as a result, Gracia was certain of his
attacker's identity. Gracia testified that Vigil walked into the kitchen, pulled out a knife,
and began stabbing him. After Vigil stabbed Gracia, they wrestled and fought in the
living room until Gracia could escape outside.

Gracia testified that Vigil confronted him during the week prior to the stabbing
and accused him of being a confidential informant for the Garden City Police
Department, which involved providing names of individuals engaged in criminal activity.
One of those individuals was named Gabriel Salinas who allegedly was in the same gang
as Vigil and had put "a hit out" on Gracia for turning him into the police. Detective
Dustin Loepp confirmed that Gracia worked as a confidential informant for the law
enforcement agency and was familiar with Salinas.

There was no dispute that Gracia was stabbed and seriously injured. The defense
argued that one of Vigil's companions, Tony Berends or Matthew Currie, could have
stabbed Gracia while fighting over the knife. But in addition to Gracia's eyewitness
testimony, forensic evidence also tied Vigil to the attack because Gracia's blood was
found on Vigil's shoe.

Currie, who had accompanied Vigil to the house that day, confirmed Vigil was at
the scene and fought with Gracia. Currie testified that he went to the bathroom and when
he came out, he saw Vigil and Gracia wrestling in the kitchen and living room. Currie
recalled seeing "a lot of blood." Currie pled guilty to aggravated burglary for his
involvement in the crime.

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Given the jury instruction to disregard the judge's reasons for ruling on evidentiary
matters, the substantial evidence of Vigil's guilt, and the individual reasons discussed
earlier with regard to each specific claim of judicial comment error, we conclude that
Vigil received a fair trial and that the errors did not affect the outcome of the trial in light
of the entire record. See Chapman, 386 U.S. at 24; Ward, 292 Kan. at 568-69.

Affirmed.