State v. Bell, 111,265.
| Decision Date | 15 May 2015 |
| Docket Number | 111,265. |
| Citation | 347 P.3d 1215 (Table) |
| Parties | STATE of Kansas, Appellee, v. Laquitta F. BELL, Appellant. |
| Court | Kansas Court of Appeals |
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Kaitlin M. Dixon, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.
Laquitta F. Bell was found guilty at a jury trial of felony theft and was sentenced to an underlying 12 months' imprisonment and placed on probation for a term of 12 months. On appeal, Bell argues the district court erred when it denied her motion for a mistrial due to juror misconduct, that reversible error was committed when an expert witness testified to the ultimate issue, that the evidence at trial was insufficient to support her conviction, and finally that her constitutional and statutory rights to be present at all critical stages of her trial were violated when the evidence at trial was sent back to the jury room during deliberations. We affirm.
On October 6, 2012, Ron Haury was an asset protection employee at the Newton Wal–Mart. When he returned from his lunch break, he observed three female individuals pushing two shopping carts full of merchandise—that was not contained in shopping bags—through the parking lot and loading it into a vehicle. Haury wrote down the description of the vehicle and the tag number before continuing into the store to review the security tapes.
Haury called 911 and Officer Jonathan Adkins with the Newton Police Department arrived at approximately 6 p.m. and reviewed the security tapes with Haury. The video showed the women pushing carts containing the items Haury observed in the parking lot down what Wal–Mart employees call the “action alley” which separates the grocery section from the general merchandise area. Within 45 seconds, the women went from the action alley to the doors leading outside to the parking lot. According to Haury's testimony, with the number of items in the carts it would have been impossible to remove the items from the carts, proceed to checkout, and pay for the items in 45 seconds. Haury identified Bell as one of the women.
Officer Brian Rousseau with the Newton Police Department was on duty when he received information from dispatch about three females placing numerous items into the back of a blue Chevy Impala at a Wal–Mart. Dispatch advised Officer Rousseau the vehicle was headed southbound on South Kansas from Wal–Mart. After receiving this information from dispatch, Officer Rousseau drove south on South Kansas and then turned back around and merged onto I–135 northbound heading back towards Newton. While traveling northbound, he observed a blue Chevy Impala heading southbound on I135. As the vehicle went by he could see three women inside and that there were a large number of items in the back seat area. He turned around and caught up with the vehicle heading south on I–135, just north of Park City. He confirmed that the tag on the vehicle was the same tag that matched the information he received from dispatch.
Because the vehicle was in Sedgwick County, a Sedgwick County deputy stopped the vehicle and Officer Rousseau assisted. Officer Rousseau made contact with Bell and the other occupants in the vehicle. Officer Rousseau asked the women where they were coming from and received no response. He then asked about the items in the vehicle and was told Bell bought the items from Wal–Mart. He spoke with Bell who informed him she bought the television found in the vehicle and her friends purchased the other items. All three women were placed under arrest for theft.
Officer Rousseau observed the items appeared new. The items included a large television, plates in a box, clothing, and bed linens. The items were removed from the vehicle, placed in a patrol car, and returned to Wal–Mart. Officer Rousseau did not find any receipts in the vehicle
The merchandise was returned to Wal–Mart by law enforcement where it was rung into the Wal–Mart system. Haury stated only Wal–Mart merchandise would ring up on their system. A receipt with 55 units of merchandise that were determined to belong to Wal–Mart was created. The total amount of the items before taxes was $1,054.62. Haury testified that he could see about a dozen or so of the large items returned to Wal–Mart on the security camera video. All the items returned to Wal–Mart had UPC codes or universal product codes. Haury stated that based upon the UPC code alone, he could not conclusively tell if most of those items came from the Newton Wal–Mart or another WalMart location. Haury also stated there were more than 55 items returned to the store, but only 55 items had a UPC code the Wal–Mart system recognized. The items that did not have a recognizable UPC code were set aside.
During its case-in-chief, the State admitted into evidence and published to the jury a security video of Wal–Mart that showed the defendant and the two others involved in the theft, mug shots of Bell and her codefendant for the trial, a bag of items allegedly taken from Bell's car, and a photograph of the items and a receipt. The jury returned a guilty verdict.
After the jury had rendered the verdict, a juror, C.B., approached the district court judge with concerns regarding a statement he had overheard another juror make during deliberations. C.B. stated that when the jury was debating why Bell would have been shopping at the Wal–Mart in Newton if she lived in Wichita, he heard another juror, R.A., say Bell had been banned from the Park City Wal–Mart. The district court sent a letter informing both parties of C.B.'s statements. A hearing was held on December 6, 2013, on Bell's motion to recall the entire jury and her motion for a mistrial. At the hearing, both jurors testified. R.A. testified he did not recall making such a statement. He also stated he did not know Bell personally and he did not personally know if she had been banned from Wal–Mart or any other business. He further stated that if he did make such a comment, it would have been in response to some speculation or interpretation of events he heard during the trial. The district court denied both the motion to recall the entire jury and the motion for a mistrial. The district court reasoned that R.A. did not have any other information about Bell being banned from Wal–Mart, and C.B. was simply trying to recall what someone said to him during deliberations. The district court found these acts did not constitute jury misconduct and Bell's rights were not prejudiced.
Did the district court err when it denied Bells motion for a mistrial based upon alleged juror misconduct?
On appeal, Bell argues the district court erred when it denied her motion for a mistrial based on R.A.'s alleged juror misconduct because her right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution was violated by the prejudicial conduct inside the jury room. The State contends the district court did not err because the alleged statement in question involved a juror's mental process and was inadmissible to prove juror misconduct under K.S.A. 60–441. While Bell acknowledges K.S.A. 60–441 prohibits the production of evidence showing the effect of a statement on the mind of a juror, she argues this provision does not apply when the alleged juror misconduct violates a defendant's constitutional rights.
On appeal of a criminal case, a trial court's evaluation of the two-step process provided in K.S.A. 22–3423(1)(c) is reviewed under an abuse of discretion standard. Judicial discretion is abused if the judicial decision (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Armstrong, 299 Kan. 405, 442, 324 P.3d 1052 (2014). To determine whether an error makes it impossible to proceed with the trial without injustice and requires a mistrial, a court must assess whether the fundamental failure affected a party's substantial rights under the harmless error statutes, K.S.A.2014 Supp. 60–261 and K.S.A. 60–2105, if a right guaranteed by the United States Constitution is not implicated. If a constitutional right is implicated, the error must be assessed under the constitutional harmless error standard in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967). State v. Santos–Vega, 299 Kan. 11, 23–24, 321 P.3d 1 (2014).
’ State v. Mathis, 281 Kan. 99, 104, 130 P.3d 14 (2006).
See also Bell v. State, 46 Kan.App.2d 488, 491, 263 P.3d 840 (2011), rev. denied 295 Kan. 1129 (2012); K.S.A. 60–441 and K.S.A. 60–444 ().
In showing juror misconduct, the evidence the defendant is allowed to present is limited by K.S.A. 60–441 which states:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.”
“A verdict may not be impeached by questions concerning a juror's views or conclusions, the reasons for those views, the factors used in determining those conclusions, or what influenced those views or mental processes in reaching the juror's conclusions.” State v. Martinez, 288 Kan. 443, 449, 204 P.3d 601(2009).
However, K.S.A. 60–444(a) states:
“This article shall not be construed to (a) exempt a juror from testifying as a witness to conditions or...
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