State v. Ahmedin

• Decision Date: 18 May 2012
• Docket Number: No. 105,378.,105,378.
• Citation: State v. Ahmedin, 276 P.3d 838 (Kan. App. 2012)
• Parties: STATE of Kansas, Appellee, v. Hassen AHMEDIN, Appellant.
• Court: Kansas Court of Appeals

276 P.3d 838

STATE of Kansas, Appellee,

v.Hassen AHMEDIN, Appellant.

No. 105,378.

Court of Appeals of Kansas.

May 18, 2012.

Appeal from Seward District Court; Clint B. Peterson, Judge.

Matthew J. Edge, of Kansas Appellate Defender Office, for appellant.

Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREENE, C.J., GREEN and BUSER, JJ.

MEMORANDUM OPINION

PER CURIAM.

Hassen Ahmedin appeals his conviction and sentence for rape, arguing juror misconduct, prosecutorial misconduct, and violation of statutory and constitutional rights when he was denied an interpreter for posttrial and sentencing proceedings.Concluding that Ahmedin's claims of error are either baseless or harmless, we affirm his conviction and sentence.

Factual and Procedural Background

On June 25, 2009, Ahmedin had sexual intercourse with J.Z. at her boyfriend's apartment, claiming the encounter was consensual.J.Z. left the apartment immediately after the encounter, met with the police, gave a statement, and submitted to a sexual assault examination.Ahmedin was charged with rape and criminal restraint and bound over for trial.In November 2009, a jury trial was conducted but resulted in a hung jury.

At a second jury trial in February 2010, Ahmedin testified in his own defense.He indicated that J.Z. was the aggressor and she never asked him to stop.Following the encounter, J.Z. asked him for $20, but he said he had no money.He then got up to take a shower, and after he got out of the shower J.Z. smiled and winked at him as he left the room.Shortly after he had finished taking a shower, the police arrived at the residence.

The jury found Ahmedin guilty of rape.At the hearing on his motion for new trial and sentencing, the district court declined to have an interpreter present, reiterating its previously expressed belief that Ahmedin adequately understood English.The motion for new trial based on jury misconduct was denied, and Ahmedin was sentenced to a presumptive 155 months' imprisonment.Ahmedin timely appeals.

Further factual detail is provided below to the extent necessary to our analysis of the issues framed.

Did the District Court Abuse Its Discretion in Denying Ahmedin's Motion for New Trial Based upon Juror Misconduct?

Although Ahmedin cited two instances of juror misconduct in his motion for new trial, on appeal he argues only one: that a juror failed to disclose that she was engaged to an assistant county attorney.We review an order denying a motion for new trial for an abuse of discretion.State v. Mathis,281 Kan. 99, 103–04, 130 P.3d 14(2006).Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable.If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.State v. Gant,288 Kan. 76, 81–82, 201 P.3d 673(2009).

If a defendant's constitutional rights have been violated during a trial, a judge's discretion to deny a motion for a new trial is limited.A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial.State v. Jenkins,269 Kan. 334, 338, 2 P.3d 769(2000).

The record shows that after the jury was sworn in and J.Z. began her testimony, defense counsel reported to the court that he had just learned that juror M.D. was engaged to an assistant county attorney.The defense objected to M.D. remaining on the jury, questioning whether she could remain unbiased.The district court overruled the objection, noting defense counsel should have been more careful in asking questions during the voir dire process.During voir dire of the group in which M.D. was called, none of the jurors were asked—by the State or the defense lawyers—whether they knew or were related to the attorneys, law enforcement officers, or any witnesses.In fact, Ahmedin's attorney asked only broad questions about their understanding of reasonable doubt, the State's burden of proof, and whether they or a family member had ever been accused of a crime.

During the second day of trial, the court again addressed M.D.'s presence on the jury.At this time, defense counsel argued that the defense had disclosed their relationships with potential jurors to the State before trial and yet the State had failed to advise them of M.D.'s relationship to an assistant county attorney.The State argued that judges' and attorneys' spouses served on juries all the time and that no bias had been shown.Again the court reiterated that the defense made choices regarding the questions that were asked of potential jurors.The judge also noted that M.D.'s father was a defense attorney in town and overruled the defense's objections.

After the defendant testified, the jury was excused, but M.D. was questioned about her ability to be impartial.She advised the court that she was engaged to an assistant county attorney but she would not be influenced by that relationship in deciding the case.She also testified that she had not had contact with her fiance since the trial started, except for seeing him in the courthouse, and that they had not discussed the case.Finally, she stated that she had not heard anything about this case prior to being called for jury service.

K.S.A. 22–3423(1)(e) permits the district court to grant a mistrial if a juror's false statement during voir dire prevents a fair trial.In the few Kansas cases addressing a juror's failure to disclose information, the Kansas Supreme Court has stated that “ ‘[j]uror misconduct in civil and criminal cases is not a ground for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party's rights.The party claiming prejudice has the burden of proof.’[Citation omitted.]”State v. Hopkins,257 Kan. 723, 725, 896 P.2d 373(1995)(denial of mistrial when juror in rape case failed to disclose that his ex-girlfriend had been raped);see alsoState v. Weaver, No. 97,921, 2009 WL 2242420, at *3–4(Kan.App.2009)(unpublished opinion), rev. denied290 Kan. 1104(2010)(mistrial not warranted when the jury foreman failed to disclose during voir dire that he used to be a police officer).

Our review of Kansas authorities on this question reveals that we have not found reversible juror misconduct unless a juror gives a false or deceptive answer to a direct inquiry.When a prospective juror gives a false or deceptive answer to a question pertaining to his or her qualifications with the result that counsel is deprived of further opportunity to determine whether the juror is impartial, and the juror is accepted, a party deceived thereby is entitled to a new trial even if the juror's possible prejudice is not shown to have caused an unjust verdict.Kerby v. Hiesterman,162 Kan. 490, Syl.¶ 3, 178 P.2d 194(1947);see alsoPeoples Bank of Pratt v. Integral Ins. Co.,251 Kan. 809, 815, 840 P.2d 503(1992)(error in denying new trial in wrongful death action where juror gave false information on juror questionnaire and plaintiffs' counsel did not disclose to court or defense counsel that one of the firms representing plaintiffs was actively representing the juror in civil litigation).

Our Supreme Court has not been impressed with allegations that a juror has merely failed to volunteer information that may be relevant to his or her qualifications.In Hopkins,the court reasoned:

“[The prospective juror] did not make a false statement or give misleading information.He was asked if he had heard everything that had occurred.He was not asked if he would have responded to any of the questions asked of other potential jurors.What he was asked by the prosecution was: ‘Is there anything or something that sticks out in your mind that you want to talk about?’

“Based on that question, the defendant asked the trial judge to find that juror misconduct occurred.During voir dire defendant's counsel asked no questions of this juror in the general area complained of.Potential jurors are not required to be mind readers.Juror misconduct must be based on more than the failure to volunteer information a potential juror speculates or surmises is important to counsel.The trial judge did not err in finding there was no juror misconduct.”(Emphasis added.)Hopkins,257 Kan. at 726, 896 P.2d 373.

Here, the juror did not misrepresent or provide false or misleading information during voir dire.She was never asked if she was related to any of the attorneys or anyone in law enforcement.There has been no showing of prejudice.We must conclude that Ahmedin's claim of juror misconduct must fail given the current state of Kansas law on this subject.

Although neither party has cited to federal or out-of-state authorities, we note in passing that some courts have recognized that juror bias may sometimes be inferred despite no affirmative misstatements by the juror.See, e.g., McDonough Power Equipment, Inc. v. Greenwood,464 U.S. 548, 556–57, 104 S.Ct. 845, 78 L.Ed.2d 663(1984)(Blackmon, J., concurring)(a party is entitled to a posttrial hearing with the opportunity to establish “actual bias or, in exceptional circumstances, that the facts are such that bias is to be inferred”);Smith v. Phillips,455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78(1982)(O'Connor, J., concurring)(“[T]here are some extreme situations that would justify a finding of implied bias ... includ[ing] a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.”);see alsoUnited States v. Polichemi,219 F.3d 698, 704–05(7th Cir.2000), cert. denied531 U.S. 1168, 121 S.Ct. 1131,...