State v. Carr

• Decision Date: 25 July 2014
• Docket Number: No. 90,044.,90,044.
• Citation: 331 P.3d 544
• Parties: STATE of Kansas, Appellee, v. Reginald Dexter CARR, Jr., Appellant.
• Court: Kansas Supreme Court

331 P.3d 544

STATE of Kansas, Appellee,

v.Reginald Dexter CARR, Jr., Appellant.

No. 90,044.

Supreme Court of Kansas.

July 25, 2014.

Syllabus by the Court

1. The Sixth Amendment to the United States Constitution guarantees an accused in all serious criminal prosecutions the right to trial by an impartial jury. This protection is incorporated into and made applicable to the states through the due process provision of the Fourteenth Amendment. The Kansas Constitution includes a similarly worded guarantee for its citizens in Section 10 of the Bill of Rights, which recognizes a defendant's right to a speedy and public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. We have analyzed the state constitutional provision in the same way as the federal constitutional provision.

2. K.S.A. 22–2616(1) gives Kansans a vehicle to obtain a change of venue to prevent a local community's hostility or preconceived opinion on a defendant's guilt from hijacking his or her criminal trial.

3. Seven factors are considered relevant to evaluate whether the existence of presumed prejudice demands a change of venue: (1) media interference with courtroom proceedings; (2) the magnitude and tone of the coverage; (3) the size and characteristics of the community in which the crime occurred; (4) the amount of time that elapsed between the crime and the trial; (5) the jury's verdict; (6) the impact of the crime on the community; and (7) the effect, if any, of a codefendant's publicized decision to plead guilty.

4. On appeal, a claim of presumed prejudice is judged by a mixed standard of review. A district judge's findings of fact on the seven relevant factors considered in determining whether presumed prejudice demands a change of venue are examined to determine whether they are supported by substantial competent evidence in the record. The district court's weighing of the factors and ultimate legal conclusion on whether presumed prejudice has been established is reviewed de novo.

5. In this case, the district judge did not err by refusing defendant's motions to transfer venue out of Sedgwick County on the basis of presumed prejudice.

6. In reviewing for actual prejudice from refusal to change venue, an appellate court examines whether the district judge had a reasonable basis for concluding that the jurors selected could be impartial. The crucible for determination of actual prejudice is voir dire. The judge must review the media coverage and the substance of the jurors' statements at voir dire to determine whether a community-wide sentiment exists against the defendant. Negative media coverage by itself is insufficient to establish actual prejudice.

7. A district judge's decision on actual prejudice is reviewed under an abuse of discretion standard.

8. In this case, all of defendant's jurors who had formed an opinion on guilt said during voir dire they could put their opinions aside. These voir dire responses gave the district judge a reasonable basis for ruling that no actual prejudice required a venue change. This case was not so extreme that the jurors' statements about their ability to be impartial cannot be credited.

9. Under K.S.A. 22–2616(1), the burden is on the defendant to show prejudice in the community significant enough that there is a reasonable certainty he or she cannot obtain a fair trial without a venue change.

10. Factors to be considered on whether a venue change is necessary under the Kansas statute include: (1) the particular degree to which the publicity circulated throughout the community; (2) the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; (3) the length of time which elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the ease encountered in the selection of the jury; (5) the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; (6) the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; (7) the connection of government officials with the release of the publicity; (8) the severity of the offense charged; and (9) the particular size of the area from which the venire is drawn.

11. The district judge did not abuse his discretion by denying defendant's motions for change of venue under K.S.A. 22–2616(1).

12. Although two or more defendants may be charged in the same complaint, information, or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the charged crime or crimes, the court may order a separate trial for any one defendant when requested by the defendant or the prosecutor. The decision whether to sever a trial is one within the trial court's discretion.

13. A single trial of multiple defendants may serve judicial economy and ensure consistent verdicts, but the right of a defendant to a fair trial must be the overriding consideration. Five factors are useful for an appellate court to consider in determining whether there is sufficient prejudice to mandate severance: (1) whether the defendants have antagonistic defenses; (2) whether important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) whether evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) whether the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the other or others; and (5) whether one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.

14. A party moving for severance has the burden to demonstrate actual prejudice to the district court judge, who has a continuing duty at all stages of a trial to grant severance if prejudice does appear.

15. On appeal from a denial of severance, the party claiming error has the burden to establish a clear abuse of discretion by the trial judge. Once abuse of discretion is established, the party benefitting from the error bears the burden of demonstrating harmlessness.

16. The district judge abused his discretion in this case by repeatedly refusing to sever the defendant's trial from that of his codefendant brother. However, because of the overwhelming independent evidence presented by the State, the judge's failure to sever the guilt phase of the trial was harmless error.

17. The district judge in this case did not abuse his discretion by denying defendant's motion to sever noncapital counts from capital counts. Similarity of punishment is not an indispensable attribute of crimes of same or similar character under K.S.A. 22–3202(1).

18. K.S.A. 22–3410(2)(i) permits a district judge to remove a prospective juror for cause when his or her “state of mind with reference to the case or any of the parties” persuades the judge that there is doubt he or she can act impartially. A criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. But this right is balanced against the State's strong interest in seating jurors who are able to apply the sentence of capital punishment within the framework provided for by the federal Constitution and state law.

19. In this case, the district judge's excuse of prospective juror M.W. for cause was fairly supported by the record and not an abuse of discretion under K.S.A. 22–3410(2)(i). Eleven other prospective jurors to whom defendant and his codefendant brother compare M.W. expressed a willingness to follow the law, while M.W. did not.

20. The same standard of review and legal framework applicable to a district judge's decision to excuse a prospective juror who cannot set aside his or her objection to the death penalty applies equally to decisions not to excuse prospective jurors challenged for cause based on their inability to consider a sentence other than death.

21. The district judge's refusal to excuse four prospective jurors for cause was fairly supported by the record and not an abuse of discretion under K.S.A. 22–3410(2)(i). These four prospective jurors expressed a willingness to consider and give effect to mitigating evidence.

22. Section 7 of the Kansas Constitution Bill of Rights provides that “[n]o religious test or property qualification shall be required for any office of public trust.” This section does not provide any greater limitation than already provided under K.S.A. 43–156, which provides that “[n]o person shall be excluded from service as a grand or petit juror in the district courts of Kansas on account of ... religion....”

23. K.S.A. 43–156 is in some tension with K.S.A. 22–3410(2)(i)—which provides that a prospective juror may be challenged for cause as unqualified to serve when he or she is partial or biased—because K.S.A. 22–3410(2)(i) requires a prospective juror who can never participate in imposition of the death penalty to be excused for cause as partial, even though his or her scruples have a basis in a religious code. Jurors cannot be discriminated against on the basis of their religious belief or lack of belief, but they can be excluded from jury service when their belief or nonbelief makes it impossible for them to act in conformance with the signature requirement of that service: impartiality under the rule of law.

24. In this case, the district judge did not violate Section 7 of the Kansas Constitution Bill of Rights or K.S.A. 43–156 when he excused prospective jurors for cause because they had said their religious beliefs would prevent them from behaving impartially.

25. A district...