State v. Alcorn
| Citation | 285 P.3d 395 |
| Decision Date | 14 September 2012 |
| Docket Number | Nos. 106,569,106,571.,106,570,s. 106,569 |
| Parties | STATE of Kansas, Appellee, v. Sarah ALCORN, Appellant. |
| Court | Court of Appeals of Kansas |
OPINION TEXT STARTS HERE
Appeal from Reno District Court; Trish Rose, Judge.
Carl F.A. Maughan, of Maughan & Maughan, LC, of Wichita, for appellant.
Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
Sarah Alcorn appeals her convictions for nine counts of violating a protection-from-abuse order and one count of criminal trespass. On appeal, Alcorn argues that the State failed to turn over exculpatory evidence, that the district court erred by consolidating the three cases for trial, and that the district court erred by admitting evidence of her past behavior at trial. For the reasons set forth in this opinion, we find that there was no reversible error committed by the district court and that Alcorn was not prejudiced by the State's actions. Thus, we affirm Alcorn's convictions for violation of a protective order and for criminal trespass.
In June 2009, Jeremy May obtained a protection-from-abuse order against Sarah Alcorn, his former girlfriend. At the same time, May's mother, Shelly Weaver, obtained a protection-from-stalking order against Alcorn. In July 2009, Alcorn was charged with two counts of stalking and two counts of violating a protective order in Case No. 09–CR–567 for contacting May and Weaver. In September 2009, Alcorn was charged with one count each of stalking, violating a protective order, domestic battery, criminal trespass, and criminal damage to property in Case No. 09–CR–725 for an incident in which she allegedly came to May's house, scratched him, and destroyed his cell phone. In July 2010, Alcorn was charged with nine counts of stalking and eight counts of violating a protective order in Case No. 10–CR–588 for sending May text messages from November 2009 to July 2010.
In April 2011, the district court granted the State's motion to consolidate the three cases for trial. The district court also granted Alcorn's motion in limine prohibiting the introduction of evidence at trial of her prior bad conduct. At a jury trial held in May 2011, the district court allowed the State to ask Weaver and May why they were afraid of Alcorn. Moreover, near the end of the trial, the prosecutor turned over a police report that had been given to him by a detective. Although Alcorn requested a recess to review the report to determine if it contained information that would help locate a potential witness the defense had not been able to locate, the district court denied Alcorn's request.
The jury ultimately convicted Alcorn of nine counts of violating a protective order and one count of criminal trespass. But Alcorn was acquitted of 11 counts of stalking, one count of domestic battery, and one count of criminal damage to property. In addition, one count of stalking and one count of violating a protective order were dismissed. Subsequently, the district court sentenced Alcorn to 24 months of probation and she timely filed an appeal to this court.
On appeal, Alcorn raises three issues. First, whether the State failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Second, whether the district court erred in consolidating the three cases for trial. Third, whether the district court erred in admitting evidence of her prior conduct at trial.
Alcorn first contends that she was denied the right to a fair trial and the right to present a defense by the State's failure to disclose potentially exculpatory evidence before trial. Specifically, Alcorn argues that the State failed to turn over a police report before trial that may have helped her contact a potential exculpatory witness. Alcorn also argues that the district court erred in denying her request for a 30–minute recess to review the report. In response, the State contends that Alcorn has failed to furnish a record that affirmatively shows that exculpatory evidence was withheld.
Prosecutors have a positive duty to disclose evidence favorable to the accused when the evidence is material either to guilt or to punishment, regardless of the good faith or bad faith of the prosecution. See Brady v. Maryland, 373 U.S. at 87;State v. Warrior, 294 Kan. 484, Syl. ¶ 7, 277 P.3d 1111 (2012). We have unlimited review on appeal of a district court's determination as to the existence of a Brady violation, though we must give deference to the trial court's findings of fact. See Warrior, 294 Kan. 484, Syl. ¶ 13. To constitute a Brady violation: “(1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material so as to establish prejudice.” Warrior, 294 Kan. 484, Syl. ¶ 10.
The standard for granting a new trial is different if the State suppressed evidence inadvertently. See Wilkins v. State, 286 Kan. 971, 989, 190 P.3d 957 (2008). When the prosecution's withholding of evidence is not deliberate or done in bad faith and the prosecution has not refused to honor a proper request for the evidence, a new trial should be granted only if the record establishes: “ ‘(1) the evidence was withheld or suppressed by the prosecution; (2) the evidence was clearly exculpatory; and (3) the evidence was so material that its omission from the trial was clearly prejudicial to the defendant.’ “ Wilkins, 286 Kan. at 989 (quoting State v. McCarty, 271 Kan. 510, 514, 23 P.3d 829 [2001] ).
A Brady violation can occur if the prosecutor withholds material evidence that is not known to the prosecutor but is known to law enforcement because law enforcement's knowledge of evidence is imputed to the State. See Warrior, 294 Kan. 484, Syl. ¶ 8. Evidence is material, however, only if there is a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed to the defense. See United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Warrior, 294 Kan. 484, Syl. ¶ 11. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Warrior, 294 Kan. 484, Syl. ¶ 11.
Here, the State immediately gave the defense the police report after it was provided by a law enforcement officer near the end of the trial. Unfortunately, our review has been made more difficult because the report is not in the record on appeal nor does the record clearly identify the information that was in the report. Apparently, the report addresses an incident June 17, 2009—which was prior to the entry of the first protective order relevant to this case—and it mentions Alicia Abies, who is evidently a potential witness that the defense had been unable to locate.
Although it is not clear from the record whether the State was required to produce the report to Alcorn, it appears from a review of the record to have been withheld by the prosecution inadvertently. See K.S.A.2010 Supp. 22–3212(b) (). Moreover, even if the State's duty to disclose was triggered, Alcorn has not shown that the evidence contained in the report was clearly exculpatory or material to her defense.
The party claiming an error has the burden of designating a record that affirmatively shows the error. State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012); State v. Osterloh, No. 100,577, 2010 WL 445670, at *3 (Kan.App.2010) (unpublished opinion), rev. denied 291 Kan. 916 (2011) (). At most, the police report may have contained contact information about a potential witness who was already known to the defense.
Alcorn argues that had Abies been located, she would have been able to testify that she initiated some of the contact with May and Weaver. But a detective testified at trial that Alcorn told him that her friend “Alicia” called Weaver twice from Alcorn's cell phone and once from the hospital on July 6, 2009. Alcorn also argues that Abies may have been able to help in impeaching May's testimony that he was in fear of Alcorn. But Alcorn was ultimately acquitted of all 11 counts of stalking, which were the only charges that included the element of fear. Therefore, we conclude that Alcorn has failed to show that the police report was clearly exculpatory—because there is nothing in the record that shows whether Abies' contact information was in the report—and Alcorn has not shown a reasonable probability that the trial's outcome would have been different if the report had been disclosed sooner. See Warrior, 294 Kan. 484, Syl. ¶ 11. Therefore, we conclude that there was no Brady violation.
Alcorn also alleges that the district court's denial of her request for a recess violated her right to a fair trial and her right to present a defense. The granting or denial of a continuance in a criminal trial is a matter that rests in the sound discretion of the district court. See State v. Thompson, 232 Kan. 364, 368, 654 P.2d 453 (1982). A ruling of a district court will not be disturbed on appeal unless there is a showing of prejudice to the defendant and an abuse of the court's discretion. 232 Kan. at 368. In the present case, because Alcorn failed to show that the police report was exculpatory or material, there has been no showing of prejudice caused by the district court's denial of her request for recess. Accordingly, we conclude that district court did not abuse its discretion in denying Alcorn's request for a recess.
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