State v. Ward

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NOT DESIGNATED FOR PUBLICATION

No. 120,047


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KHALIL SHAKOR WARD,
Appellant.


MEMORANDUM OPINION


Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed December
20, 2019. Affirmed.

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

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

Before HILL, P.J., MALONE and POWELL, JJ.

PER CURIAM: This is Khalil Shakor Ward's direct appeal of his convictions for
possession of a firearm as a felon and possession of marijuana. He claims three errors.
First, by denying his request for a continuance of his preliminary hearing, the trial court
unconstitutionally denied him his right to counsel of his choice. Second, the police
illegally seized the gun in his car and it should not have been admitted into evidence
against him. Third, the prosecutor erred in closing statements by misstating the law.

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The State argues that there are no trial errors and Ward's convictions must be
affirmed. In the State's view, it was reasonable for the court to deny Ward's fourth request
to continue his preliminary hearing. And the police, after smelling the odor of marijuana
coming from Ward's person, had good cause to search his car for marijuana and the gun
was discovered during that search. Finally, when considered in context, the prosecutor's
statements are not misstatements of the law.

The State is correct on all three points and we affirm.

The police noticed a cracked windshield.

One evening in June 2017, two Wichita officers stopped the car Ward was driving
because it appeared that its windshield was cracked. Both officers smelled an odor of
marijuana coming from Ward's car. They asked him to step out of the car. He did so.
Then, while one officer remained with Ward, the other officer searched Ward's car,
looking for marijuana. The officer found no marijuana but did discover a handgun under
the driver's seat. A record check of the gun revealed that it was reported stolen. The
officers arrested Ward for possession of a stolen gun. After his arrest, the officers
searched Ward's person and discovered a burnt marijuana cigarette in his possession.

Because Ward was a felon, the State charged him with one count of criminal
possession of a firearm. The State also charged him with possession of marijuana and
driving with an obstructed windshield.

The jury acquitted Ward of driving with an obstructed windshield, but it found
him guilty of criminal possession of a handgun and possession of marijuana.
The court imposed a suspended 10-month prison sentence.


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Ward asks to continue his preliminary hearing.

Ward claims that the trial court improperly denied his request for a continuance of
his preliminary hearing because that denial effectively denied him his right to counsel of
his choice. He argues this denial is a structural error requiring reversal of his convictions.
The State does not address Ward's claim of a structural error but argues the trial court did
not abuse its discretion in denying his request for a continuance.

The record reveals several continuances of this hearing were granted. Ward's first
court appearance was in June 2017. At that time, his preliminary hearing was set for July
5. Ward filed a financial affidavit declaring he was unemployed and had no assets, and he
requested that an attorney be appointed to represent him. The trial court appointed a
public defender to represent him.

After that, Ward's two requests for continuances of the preliminary hearing were
granted without a record taken. When the parties ultimately met for Ward's preliminary
hearing in August 2017, it is clear from the record on appeal that the trial court expected
Ward to waive his right to a preliminary hearing. But Ward told the court that he did want
one. The court then set the matter over for a preliminary hearing. This hearing is the
focus of Ward's complaint.

At the preliminary hearing two weeks later—about three months after Ward's
arrest—Ward's public defender told the court, "I just spoke to my client and he is asking
for a continuance on this matter so that he can hire an attorney." The State objected
because Ward had called for this hearing, the State's witnesses were present, and it was
ready to proceed.

The court asked for details. Ward told the court that he was comfortable with his
representation until "last time I was here [August 30]," at which time he asked his
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attorney to ask something about "what happened," but his attorney said "she doesn't have
to or she doesn't need to." Unpersuaded, the court denied Ward's request for a
continuance, finding that "plenty of time" had passed for him to hire a lawyer; that a
preliminary hearing means the State is held to a minimal threshold; and that his appointed
attorney could handle the preliminary hearing "just as ably as any lawyer you would
hire." The trial court also told Ward that he was "always free" to hire an attorney. Ward
responded, "Oh, okay. . . . That's fine. That's fine then. That's fine." With this consent, the
court heard the evidence.

After the preliminary hearing, Ward was bound over for trial. He made no further
requests to secure his own counsel and did not bring up the matter again. Ward continued
with his appointed public defender until February 2018, when a different public defender
was assigned to his case. This public defender represented Ward at his trial.

To us, Ward argues this is structural error. The State suggests that it was
reasonable for the court to deny the continuance and contends we should use an abuse of
discretion standard of review.

The Sixth Amendment to the United States Constitution provides that a defendant
must be afforded "a reasonable opportunity to secure counsel of his or her choosing."
State v. Anthony, 257 Kan. 1003, 1018, 898 P.2d 1109 (1995). Both sides cite Anthony as
authority supporting their positions. When a criminal defendant's constitutional right to
secure counsel of his or her choice conflicts with a trial court's discretionary power to
deny continuances, an appellate court must balance several case-specific factors to
determine whether the trial court's conduct was fair and reasonable. 257 Kan. at 1019.




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Anthony lists the factors that a court must consider.

• Would a continuance be an inconvenience to the court, counsel, parties, or
witnesses?
• Have other continuances been granted?
• Are there legitimate reasons for the delay?
• Is the delay due to the defendant?
• Does denial of the continuance prejudice the defendant? 257 Kan. at 1019.

Answering these questions lead us to conclude that the denial of Ward's
continuance was not unreasonable and did not constitute structural error. The State was
ready to proceed with the preliminary hearing. Its witnesses were ready to testify. The
matter had been delayed before at Ward's request, and a busy trial court needs to keep
cases moving. Ward was present and represented by counsel. Ward did not ask for a
continuance so he could secure his own witnesses or obtain some evidence to present at
the preliminary hearing. And we can see no loss to Ward here. He still had the
opportunity to hire his own attorney after the preliminary hearing.

When we balance these factors, as Anthony requires, we see no prejudice. Ward
filed a poverty affidavit and he had appointed counsel. He never told the court that he
could obtain the money to hire his own lawyer. He has not shown us any prejudice by
proceeding with a preliminary hearing. If Ward wanted to hire his own attorney, he could
have done so after the preliminary hearing. There was ample time after the preliminary
hearing before the jury trial for Ward to hire counsel. The Supreme Court has cautioned
us that a defendant may not manipulate the right to secure counsel of his or her choosing
"to impede the efficient administration of justice." Anthony, 257 Kan. at 1019.

We hold there is no structural error here.

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The contemporaneous objection rule applies here.

Claiming an illegal search, Ward moved before trial to suppress the gun found in
his car. In his view, the police had no probable cause to stop or search the car. The court
denied the motion. Then, at trial, Ward did not object when the officer testified about the
gun or that it had been reported stolen. Ward did, at the end of the State's case, vaguely
object to any adverse rulings "whether it be objections, motions, or otherwise." Ward
claims this preserved this issue for appellate review. This unspecific, generic objection
did not preserve this issue. The law requires more.

Under K.S.A. 60-404, an appellate court is generally precluded from reviewing an
evidentiary challenge unless there is a timely and specific objection made on the record.
State v. Powell, 308 Kan. 895, 917, 425 P.3d 309 (2018). A party cannot object to the
introduction of evidence on one ground at trial and assert another ground on appeal. State
v. Reed, 300 Kan. 494, 505-06, 332 P.3d 172 (2014).

Ward made no specific objection to the admission of this evidence, unless we
consider the vague conclusory general objection at the end of the State's case. No court
has ever held such an objection to be sufficient to preserve an issue for appeal, and
neither will we.

The rationale for the contemporaneous objection rule is that a trial court is not in a
position to fully consider whether to admit the evidence until it is offered at trial because
the "'materiality of the proposed evidence may not become actually apparent until other
evidence has been admitted.'" State v. Jones, 267 Kan. 627, 638, 984 P.2d 132 (1999).
This means that a pretrial ruling on a motion to suppress does not preserve the issue for
appeal.

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We take the Supreme Court to mean what it says. In State v. Sean, 306 Kan. 963,
973, 399 P.3d 168 (2017), our Supreme Court could not be more clear when it stated:
"[W]e take this opportunity to reiterate an important principle. When a party moves to
suppress evidence and the court denies the motion, the party must timely and specifically
renew this objection when the opposing party moves to admit the evidence during trial."

Since Ward made no contemporaneous specific objection to the admission of this
evidence, he has failed to preserve the issue for appeal. His vague objection is
insufficient. We will not consider the matter.

We find no prosecutor error.

Wade argues the State committed prosecutorial error when it twice misstated the
law. Ward complains about two statements—one about reasonable doubt and one about
possession of contraband:
• "[I]f you're not left with any reasonable doubt as to the State's claims, you
must return guilty verdicts in this case."
• "[A]ny item within that [car] is essentially within the legal definition of
possession as far as the defendant is concerned. Any item in that car was
within his possession."

For the first error, Ward relies on State v. Smith-Parker, 301 Kan. 132, 164, 340
P.3d 485 (2014), to support his contention that the prosecutor misstated the law. He
claims that Smith-Parker suggests that an instruction that tells the jury it must convict is
improper. Ward's reliance on Smith-Parker is misplaced. In that case, the court focused
on a jury instruction read by the court. It used the term "must" and "went too far" in
essentially forbidding the jury from exercising its power of nullification. 301 Kan. at 164.
Unlike Smith-Parker, the trial court here properly instructed the jurors on the burden of
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proof, informing them they should—rather than "must"—convict, if they determined the
State proved its case.

Ward cites no precedent extending the holding in Smith-Parker concerning jury
instructions to statements by prosecutors; nor does he cite any authority in support of his
argument that the holding should be extended to prosecutors. But recently, in State v.
Pruitt, 310 Kan. ___, No. 118,448, 2019 WL 6646441, at *10 (Kan. 2019), our Supreme
Court noted that while the ruling in Smith-Parker applied to judges instructing juries, it
held that a prosecutor's closing argument is fundamentally different. The court held that it
was not prosecutor error for the prosecutor to say to the jury that it "must" convict if it
was convinced beyond a reasonable doubt the State had proved all the elements of first-
degree murder. 2019 WL 6646441, at *10.

Because this jury was properly instructed, we see no reversible error arising from
this brief comment by the prosecutor. We move to the second comment.

Next, Ward claims the prosecution misstated the law when it told the jury, "[A]ny
item within that [car] is essentially within the legal definition of possession as far as the
defendant is concerned. Any item in that car was within his possession." Without more
information, considered in isolation, this statement could mislead a jury about the law.
But when evaluating a prosecutor's closing arguments, context matters. Appellate courts
consider a prosecutor's comments in the context in which they were made rather than in
isolation. State v. Thomas, 307 Kan. 733, 744, 415 P.3d 430 (2018). The context
persuades us that it is not misleading.

The prosecutor told the jury several times that the State had to prove Ward knew
the gun was in the car in order to prove he possessed it. These excerpts from the
prosecutor's closing argument provide a better picture of the significance of the comment.

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The prosecutor began by referring to the legal concept of possession:

"I want to talk about possession real quick. You have it defined in two of the three
charged offenses, which is the possession of the handgun and the possession of the
marijuana. I think it bears a little discussion to flush that out. The judge just told you and
you will see for yourself in your packets, that it is joint or exclusive control
and that is with knowledge and intent to control."

Next, the prosecutor referred to several specific facts about the gun and
where it was found:

"Now, let's talk about some of the facts. Mr. Ward, he is the only occupant in the
Cavalier. There is no evidence to dispute that. The gun, which was located directly under
his seat, that 40-caliber Sig Sauer, just inches from his grasp directly under him. It wasn't
jammed far in there. No intent to conceal. It was directly under the seat. In fact, you can
see in a couple of the State's exhibits and in the video, that it is slightly poking out from
behind that seat. So, it isn't completely obscured in a place that isn't easily within the
defendant's control."

After that, the prosecutor made some general statements about possession
and referred to Ward's admission of possession of the gun:

"In fact, any item within that Cavalier is essentially within the legal definition of
possession as far as the defendant is concerned. Any item in that car was within his
possession. And that is true with the firearm, as well.

"Now, if that isn't enough, then the defendant admitted to possessing the gun on
the stand both to his own counsel and to Ms. Laudermilk. So that element really isn't in
dispute. The defendant was possessing that firearm."

This context shows the second comment was not as offensive as Ward argues.
During the closing, the prosecutor, more than once, acknowledged that to prove
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possession, the State must first prove that Ward knew the gun was in the car. The context
convinces us the comment is not reversible error.

The prosecutor also mentioned what Ward told the police. Ward initially told the
officer that he bought the gun at a gun show. He later said that he bought it from a friend
who bought it at a gun show. From such statements, a reasonable jury could infer that
Ward knew about the gun and that it was under his driver's seat.

Affirmed.