Crease v. State

• Decision Date: 22 January 1993
• Docket Number: No. 66846,66846
• Citation: 845 P.2d 27,252 Kan. 326
• Parties: Kenneth CREASE, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 27

845 P.2d 27

252 Kan. 326

Kenneth CREASE, Appellant, v. STATE of Kansas, Appellee.

No. 66846.

Supreme Court of Kansas.

Jan. 22, 1993.

Syllabus by the Court

1. A conference between a trial judge and a juror is a critical stage of the proceeding, and the defendant has a constitutional and statutory right to be present whenever the trial judge communicates with the jury.

2. K.S.A. 22-3420(3) requires that once the jury has begun deliberations, any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence, unless the defendant is absent voluntarily.

3. Trial errors affecting constitutional rights may be raised in a K.S.A. 60-1507 motion even though the error was not raised on direct appeal, provided there are exceptional circumstances excusing the failure to appeal.

4. An attorney cannot waive the right of an accused to be present at a critical stage of the proceeding without first having discussed the matter with the accused.

5. An error of constitutional magnitude may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. In order to declare the constitutional error harmless, an appellate court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.

6. An otherwise valid conviction will not be set aside if the reviewing court may say confidently, based on a review of the entire record, that the constitutional error was harmless beyond a reasonable doubt.

7. The test for determining whether counsel for an accused was ineffective, as set forth in Chamberlain v. State, 236 Kan. 650, 654-55, 694 P.2d 468 (1985), is set forth and applied.

8. In an ineffective assistance of counsel issue, if the counsel's act was the result of a reasonable defense tactic, then this court will find counsel's assistance to have been competent and effective. Deliberate decisions made for strategic reasons may not establish ineffective assistance of counsel.

Steven R. Zinn, Deputy Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Debra Byrd, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief, for appellee.

ABBOTT, Justice.

The appellant, Kenneth Crease, appeals the denial of his K.S.A. 60-1507 motion in which he challenged his convictions, based upon an ex parte communication between the trial judge and at least one juror. The Court of Appeals affirmed the denial in an unpublished opinion filed August 7, 1992. 839 P.2d 81. We granted the petition for review.

The main issue is whether the trial judge's ex parte communication with a juror is harmless error. Crease also claims there was insufficient evidence to support the district court's finding that only one juror saw the judge ex parte; the failure of his attorney to object or move for a mistrial when learning of this meeting was ineffective assistance of counsel; and the assignment of this case by Judge Paul W. Clark, presiding judge of the Criminal Division, who was the prosecutor in the original case, to Judge Karl W. Friedel amounted to an appearance of impropriety requiring a new trial.

The background for this appeal is that in January 1981, a jury found Crease guilty of three counts of burglary, four counts of aggravated burglary, five counts of theft, and two counts of felony murder. During one of the burglaries perpetrated by Crease and one or more accomplices, a husband and wife were shot and killed while sleeping. The evidence was conflicting whether Crease shot one of the victims or whether Crease was in another room when the couple was shot. Crease was 16 years old at the time the offense was committed and was certified to stand trial as an adult. This court affirmed Crease's convictions on direct appeal. State v. Crease, 230 Kan. 541, 638 P.2d 939 (1982).

In August 1988, after learning of an ex parte communication between the trial judge, Judge Ray Hodge, and one or more jurors, Crease filed a K.S.A. 60-1507 motion. Crease argued that, because of the ex parte communication, he was denied his right to be present at all critical stages of the trial. He subsequently filed affidavits, including two from jurors, in conjunction with his motion. The affidavits set forth that an ex parte conference between the trial judge and one or more jurors took place during the trial.

The trial judge refused to allow Crease to subpoena the jurors for an evidentiary hearing and subsequently denied Crease's 60-1507 motion. Crease appealed. In an unpublished opinion, 794 P.2d 1176, the Court of Appeals reversed and remanded "with directions to hold a meaningful evidentiary hearing."

By way of background, Crease's trial, including voir dire, lasted two months. Jury deliberation began on January 5, 1981, and continued for the next two days. The ex parte conversation occurred on January 7, 1981, sometime prior to 11:35 a.m. A juror, Stephanie Brinkley, pursuant to the suggestion of the trial judge during the ex parte conversation, submitted the following question in writing:

"If it is already pre-determined (it seems) that the defendant is guilty of a crime, whether or not he actually committed the particular act or not, do we as jurors really have a choice in the matter as to whether he is to be judged (by us) guilty or not guilty.

"The State tried to prove he was in the basement and actually committed the act. The defense says otherwise. Are we bound by the statement in [Instruction] 21. Do we have a choice?!"

Instruction 21 provided: "A person is criminally responsible for the conduct of another when, either before or during the commission of a crime, and with the intent to promote or assist in the commission of the crime, he intentionally aids or advises the other to commit the crime."

Shortly after 1:35 p.m., Judge Hodge orally responded as follows:

"To answer that question it is contained in the written Instructions in Instruction Number 1. I will read a portion of that to all of you again.

" 'Members of the Jury: It is my duty to instruct you in the law that applies to this case and it is your duty to follow the Instructions. You must not single out one or more Instructions and disregard others. You should construe each [In]struction in the light of and in harmony with the other Instructions, and you should apply the Instructions as a whole to the evidence.' "

The judge then excused the jury to resume deliberations. The jury reached a verdict that afternoon at 4:50 p.m.

An evidentiary hearing was held in February 1991, more than 10 years after Crease's conviction. The Court of Appeals fairly and accurately summarized the testimony as follows:

"At the hearing John Hale, the bailiff at petitioner's trial, testified that during jury deliberations certain jurors were crying and one woman approached him and wanted to see the trial judge. The judge allowed him to bring the woman into his chambers. Hale said he also remained there for awhile. He further testified the juror told the judge she did not want to be a juror and take the responsibility of being a juror. The judge told the juror that, as a juror, she was 'no better than anybody else ... [and she] should go back and do [her] duty.' Hale thought he brought three jurors in, but he was sure that it was more than one. One juror was a black female and the others were white females. Kenneth Crease was not present for any of this discussion.

"Stephanie Washington Brinkley is the black juror who met with Judge Hodge. She testified she was having trouble accepting the felony-murder and aiding and abetting rules, and stated: 'I just couldn't get over the fact that Mr. Crease was going to be ... tried for murder ... although he did not pull the trigger. He ... wasn't aware that the other guy ... planned to go down and murder this couple--I couldn't deal with the fact that he was going to be tried for murder even though he didn't commit the act himself.' She also said 'I can't remember if [the sentence] was life or what it was, but we just felt [he] was too young for that. And since he didn't do it, then why make him go through that[?]' She stated that she and Barbara Poppenhagen, another juror, were having difficulty with this and went to see the judge.

"Ms. Brinkley stated the meeting involved her, Ms. Poppenhagen, and the judge. There was no defendant, no bailiff, and no attorney present. She said the judge reread the instructions to her. He told them to 'use the evidence that was presented in court during the trial and base our decisions upon that.' She stated he also told them that in the State of Kansas under the felony-murder rule 'you're just as guilty--when a felony is committed, you're just as guilty as if you actually did it yourself.'

"Ms. Brinkley was asked:

'Q. And so then the judge instructed you that if he was guilty of the burglary, then he was guilty of the murder?

'A. Yes, just because he was there at the time, uh-huh.

"She stated three or four people did not want to return a guilty verdict, but the other jurors were pressuring them. Ms. Brinkley said she did not know for sure what she was going to do when she left the judge's chambers. Although she was uncomfortable with the extreme aspect of the felony-murder rule, she succumbed to the pressure of the other jurors and voted guilty. She said there was no pressure exerted by the judge. After having the judge explain things to her, she stated she interpreted it to mean 'that there [was] no other recourse other than to vote guilty.'

"Barbara Poppenhagen testified she did not remember going into the judge's chambers. However, she later added it was possible she was in his chambers.

"The jury foreman, Frank Rider, testified that Ms. Brinkley had...