State v. Cravens

• Decision Date: 02 August 2013
• Docket Number: No. 108,055.,108,055.
• Citation: State v. Cravens, 304 P.3d 363 (Kan. App. 2013)
• Parties: STATE of Kansas, Appellee, v. John W. CRAVENS, Appellant.
• Court: Kansas Court of Appeals

304 P.3d 363

STATE of Kansas, Appellee,

v.John W. CRAVENS, Appellant.

No. 108,055.

Court of Appeals of Kansas.

Aug. 2, 2013.

Appeal from McPherson District Court; Carl B. Anderson, Jr., Judge.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

David A. Page, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.

MEMORANDUM OPINION

PER CURIAM.

John W. Cravens directly appeals his conviction by a jury of attempted second-degree murder and the resulting 72–month presumptive prison term. He raises four issues on appeal. First, he claims the court erred in failing to grant his motion for a new trial based on juror misconduct when a juror failed to reveal that he was acquainted with one of the witnesses. However, we find Cravens has failed to establish that the juror answered any questions propounded to him untruthfully and, therefore, the district court did not abuse its discretion in finding that Cravens failed to meet his burden to establish that misconduct occurred.

Second, Cravens contends that the reasonable doubt instruction that was provided to the jury was clearly erroneous. But our Supreme Court has recently addressed the use of the same instruction and found that although the instruction is not favored it is legally appropriate.

Cravens next argues that cumulative error denied him a fair trial. Because we find there was no trial error this claim fails. And finally, Cravens contends the trial court violated his constitutional rights by using his prior convictions to enhance his sentence without first requiring them to be proven to a jury beyond a reasonable doubt under principles enunciated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). But our Supreme Court has previously rejected this argument, and we are duty bound to follow Supreme Court precedent.

Accordingly, we affirm the decision of the district court in all respects.

Factual and Procedural History

As a result of an investigation into the stabbing of Shelby Coffin, the State charged John Cravens with attempted second-degree intentional murder. Following a 2–day trial, a jury convicted Cravens as charged. This is Cravens' direct appeal. He does not challenge the sufficiency of the evidence to support his conviction. Viewed in a light most favorable to the State, that evidence revealed as follows.

Late in the evening on June 27, 2011, Cravens woke up his nephew Jeff Strawn by banging on his front door. He reported to Strawn that he had just stabbed Coffin during an argument and asked what he should do. Strawn had previously been a roommate of Cravens and Coffin, during which time he and Coffin frequently used drugs and alcohol and sometimes had sex. Strawn told Cravens he wanted no part of the stabbing incident because he had “been in enough trouble.” He told Cravens to leave and urged him to call for help.

Soon thereafter, a 911 dispatcher received a call from a man who requested an ambulance be sent to a home in McPherson because his girlfriend had been “ ‘stabbed with a knife.” ’ Sergeant David Reed responded only a couple of minutes later and found Cravens sitting in a chair on the front porch of the home. Cravens, who had a small amount of dried blood on his forearm, admitted to Reed that he had stabbed his girlfriend, said she needed an ambulance, and told Reed to “ ‘take him to jail.” ’

Another officer arrived and remained with Cravens while Reed went inside the home, where he found Coffin in a bedroom, weak, and lying on a bed covered in blood. A steak knife with blood on it was lying on the floor next to the bed.

Coffin's memory of the events surrounding her stabbing was foggy. She did consistently recall that earlier in the evening, she and Cravens had shared “a fifth” of whiskey, eaten dinner, taken their dog out for a run in the country, and returned home with plans to watch a movie. The next thing Coffin remembered was feeling a sharp pain in her lower left side. During interviews with the police while she was still in the hospital in the days following, Coffin reported that Cravens had stabbed her in the living room, as she was getting ready to play a movie. There was some suggestion Coffin may have learned these details from Strawn when he visited her in the hospital. Regardless, the police investigation suggested this could not have been the case in light of the amount of blood in the bedroom and lack of blood in the kitchen or living room.

During her trial testimony just 4 months later, Coffin admittedly could not remember any of these specific details of the stabbing, such as where she was at when it happened, what time it was, where Cravens was, or if she ever saw a knife. Nor did Coffin specifically recall what she told medical professionals or the police the next day in the hospital after she got out of surgery to repair the nine stab wounds to her back, stomach, and chest.

Cravens' defense primarily involved diverting the jury's attention toward circumstances that tended to suggest he was not actually involved in Coffin's stabbing. For example, Cravens: suggested his alleged confession when Reed arrived was misunderstood or misconstrued; highlighted Coffin's history of harming herself, particularly while drinking or when a loved one threatened to leave her; challenged Coffin's credibility; noted the lack of physical evidence connecting Cravens to the stabbing, particularly the lack of blood on him that night; and suggested Strawn may have had some ulterior motive in providing Coffin details about the stabbing that Coffin then reported to the police.

The jury deliberated for several hours, during which it asked several questions of the court and reviewed some of the evidence offered during trial before returning a guilty verdict. Cravens thereafter moved for a new trial alleging a juror had committed misconduct by failing to disclose his friendship with Strawn during voir dire. Following an evidentiary hearing, the trial court denied that motion for reasons that will be explained below in more detail. The court thereafter sentenced Cravens to a standard presumptive prison sentence of 72 months based on his criminal history score of G. This appeal by Cravens follows.

Analysis

In his first issue on appeal, Cravens' challenges the trial court's denial of his motion for new trial based on juror misconduct.

K.S.A.2012 Supp. 22–3501(1) provides a trial court authority to grant a new trial upon motion of a defendant “in the interest of justice.” This court reviews the trial court's decision on a motion for new trial brought under this statute for an abuse of discretion. See State v. Warrior, 294 Kan. 484, 510, 277 P.3d 1111 (2012). As our Supreme Court had explained:

“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594(2012).

Cravens bore the burden of proving juror misconduct.

Allegations of juror misconduct generally trigger a progressive two-step inquiry. First, a court must determine whether the defendant has shown juror misconduct. If so, a court must then consider whether the State has “show[n] beyond a reasonable doubt that the error did not affect the trial's outcome.” Bell v. State, 46 Kan.App.2d 488, Syl. ¶ 1, 263 P.3d 840 (2011), rev. denied ––– Kan. –––– (September 14, 2012).

Cravens alleged the jury foreman (T.W.) committed reversible juror misconduct when he failed to respond during voir dire after the trial court asked potential jurors whether they knew potential trial witnesses. Cravens said he first became aware of T.W.'s misconduct when one of Cravens' family members recognized T.W. after he identified himself as the jury foreman and one relative recalled that T.W. and Strawn had grown up together. Cravens alleged T.W. intentionally concealed his friendship with Strawn from the court.

The precise context of the trial court's pertinent questioning of potential jurors that took place at the opening of voir dire is important here. After explaining how the voir dire process worked, the trial court questioned whether any of the potential jurors knew Cravens. Having received no responses to that inquiry, the court continued:

“I'm going to read down some potential witnesses. I don't know whether these people will be called or not. They're simply potential witnesses at this point.... What I want to know is whether you're related to, or if you know any of these people more than just in passing. I know in a small community such as ours that we' re going to know people in passing. I'm not concerned about that. What I'm concerned about is whether you know them to a degree that you feel you would have a problem in judging their testimony if they were called as a witness. For instance, if a good friend of mine was put on the stand I might have a tendency to accept whatever he or she says without truly testing the credibility of that testimony. By the same token, if someone was put on the stand I didn't like, I might have a tendency to reject whatever they say without testing their credibility. That's what I'm interested in knowing, is whether you know any of these people to that kind of a degree.” (Emphasis added.)

Strawn was the first witness the trial court mentioned by name, and none of the potential jurors responded. They did, however, respond when other potential witnesses were named. When one potential juror mentioned being friends with a police officer the court had named as a potential witness, the...