State v. Anderson

• Decision Date: 26 September 2008
• Docket Number: No. 96,602.,96,602.
• Citation: 192 P.3d 673
• Parties: STATE of Kansas, Appellee, v. Phillip ANDERSON, Appellant.
• Court: Kansas Court of Appeals

192 P.3d 673

STATE of Kansas, Appellee, v. Phillip ANDERSON, Appellant.

No. 96,602.

Court of Appeals of Kansas.

September 26, 2008.

Randall L. Hodgkinson and Patrick A. Turner, legal intern, of Kansas Appellate Defender Office, for appellant.

Robert A. Walsh, county attorney, and Paul J. Morrison, attorney general, for appellee.

Before McANANY, P.J., HILL, J., and LARSON, S.J.

McANANY, P.J.

On April 12, 2005, Phillip L. Anderson and his girlfriend, Donna, met with Amber Fellows, a support worker for Family Preservation Services, to discuss Donna's children. Anderson and Donna had traveled to the meeting in Anderson's truck. Since Anderson's driver's license was suspended at the time, Levi McCuistion, a friend of Anderson, drove the truck and remained behind while Anderson and Donna attended the meeting. When Fellows stated at the meeting that the Kansas Department of Social and Rehabilitation Services (SRS) had taken emergency custody of Donna's children, Anderson began to yell and curse. He threatened to bomb SRS, to kill an SRS employee, and to kill the person who was caring for the children. Anderson and Donna left, carrying a camouflage jacket. Fellows called the police.

The police located and stopped Anderson's truck. McCuistion was asked to get out of the truck, but he was not searched. When questioned about the events earlier that day, Anderson denied he had made any threats. Nevertheless, the police arrested him and placed him in a patrol car. Sergeant Voekler then searched Anderson's truck and found the camouflage jacket and drugs and paraphernalia in one of its pockets. Donna said the jacket was hers. However, when Anderson saw Sergeant Voelker with the jacket, he shouted from the patrol car that the jacket was his. He later testified he claimed the coat was his because, "I didn't want Donna to go to jail. I wanted to keep her out so she could go get the kids because I knew that's all that matters to her." The police arrested both Donna and Anderson.

The State charged Anderson with criminal threat, possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia.

Anderson was taken to court in shackles for his jury trial. After voir dire, the following exchange took place in chambers between counsel for Anderson and the court:

"[Counsel]: Your Honor, there is one thing. My client—I don't know the reason why—[he] is in manacles around his ankles. I prefer that that not be the case.

"THE COURT: I understood. And you told me that in the recess. And my longstanding policy has been that the guys that would have to do the work—potentially have to do the work are going to make the call. So Randy said he would prefer to have them on. So for that reason the motion is denied.

"[Counsel]: Okay. I understand that. Is there a reason—is he a flight risk? Did he give a reason or did he just say I prefer to have them on?

"THE COURT: The latter.

"[Counsel]: He just wants them on?

"THE COURT: That's what he said."

Anderson remained shackled for the duration of the trial.

Ownership of the camouflage jacket containing the drugs and paraphernalia was disputed. Sheriff Larry Bergstrom testified that on March 25, 2005, about 3 weeks before this incident, he had seen Anderson in a camouflage jacket similar to the jacket found in Anderson's truck when he was arrested.

Kama Naumann testified that she had been living with Anderson prior to April 6, 2005. Before she left, Naumann discovered that her college ID was missing. The ID was later found in the pocket of the jacket taken from Anderson's truck. She recalled Anderson wearing a camouflage jacket, but it was brighter and newer than the one apparently found in Anderson's truck.

Holly Brown, a coordinator for Big Brothers Big Sisters of Cloud County, testified that on the day of the incident Anderson and Donna came into the office and one of them, she did not remember which, was wearing a camouflage-type military jacket. Anderson was carrying the jacket when they left.

Donna testified that the camouflage jacket belonged to McCuistion and she had seen him wearing the jacket on the day of Anderson's arrest. Casey Zach, a friend of Anderson's, testified that he had seen McCuistion wearing the jacket that day and never saw Anderson wear it. Another friend of Anderson's, Teresa Cada, also testified that she had seen McCuistion wearing the jacket.

Anderson testified that the camouflage jacket and the drugs were not his. He claimed he admitted to the police at the scene of his arrest that the jacket was his solely to prevent Donna from being arrested. He testified that the jacket belonged to McCuistion. On cross-examination, Anderson was asked about whether he had coordinated his testimony about the jacket with Zach. In doing so, the State referred to Zach and Anderson having been cell mates. The district court overruled Anderson's objections to this reference to Anderson having been in jail and denied Anderson's request for a mistrial.

The jury found Anderson guilty on all four counts. The district court denied Anderson's motion for new trial or judgment of acquittal and sentenced him to a term of probation with an underlying prison sentence. This appeal followed.

Anderson first challenges the district court's order that he be shackled throughout the trial. Kansas courts have long held that a defendant in a criminal case should not be tried while in handcuffs or shackles except in exceptional circumstances. The exceptional circumstances justifying their use must be clear from the record. If it is not apparent from the proceedings themselves, such as a disruption of the trial or other obvious reasons, the district court should conduct a hearing and state its reasons for ordering the use of restraints. Shackles should be allowed during trial only when it is apparent that no other means will be effective. See Holbrook v. Flynn, 475 U.S. 560, 570-71, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986); State v. Williams, 228 Kan. 723, 730-31, 621 P.2d 423 (1980).

On review, we examine the district court's order that the defendant be shackled during the trial using the abuse of discretion standard. State v. Powell, 274 Kan. 618, 626-27, 56 P.3d 189 (2002); Williams, 228 Kan. at 731, 621 P.2d 423.

Powell is instructive in considering this claim. There, the sheriff testified as to his reasons for wanting the defendant to wear a stun belt. Powell was a prior offender charged with capital murder. While incarcerated, Powell made a homemade weapon and stabbed an inmate five times. On another occasion prison guards found a toothbrush sharpened to a point and hidden in Powell's shampoo bottle. Powell had been placed in segregation numerous times. Powell had been removed from the courtroom for disruptive conduct in a previous case. He was a threat to the safety of the public and to the court. Further, the use of the stun belt was not obvious to jurors. They would be aware of its presence only if specifically brought to their attention. The stun belt was neither activated during Powell's trial nor was it pointed out to the jury.

In finding no abuse of discretion, the Powell court listed the factors to be considered when determining whether a defendant was properly restrained during trial:

"the background of the defendant; the nature of the charges; evidence of dangerous incidents; testimony about the restraints sought to be used; prior conduct of the defendant; the objection to use of the restraint and/or the election by the defendant whether to testify; the physical facts of the individuals and the courtroom; the presence or absence of victims, family, or spectators; and other factors that will vary from case to case must be considered by the trial court." 274 Kan. at 637, 56 P.3d 189.

Here, it is impossible to review this case using the abuse of discretion standard since the district court failed to exercise its discretion. It simply deferred to the wishes of the jailer. The nature of judicial discretion was discussed in State v. Foren, 78 Kan. 654, 658-59, 97 P. 791 (1908):

"Discretion is the freedom to act according to one's judgment; and judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts found after...