State v. Dunlap

• Decision Date: 02 December 2011
• Docket Number: No. 105,560.,105,560.
• Citation: 266 P.3d 1242,46 Kan.App.2d 924
• Parties: STATE of Kansas, Appellee, v. Ktorri C. DUNLAP, Appellant.
• Court: Kansas Court of Appeals

266 P.3d 1242

46 Kan.App.2d 924

STATE of Kansas, Appellee,

v.Ktorri C. DUNLAP, Appellant.

No. 105,560.

Court of Appeals of Kansas.

Dec. 2, 2011.

Syllabus by the Court

1. Interpretation of a statute is a question of law over which appellate courts have unlimited review.

2. K.S.A. 22–3421 requires the trial court to follow two separate steps in accepting a jury verdict in a criminal case. First, the trial judge shall inquire whether the verdict read in open court is the jury's verdict. Second, the trial judge must poll the jury if either party requests that the jury be polled.

3. The right to a unanimous jury verdict in Kansas is statutory but not constitutional.

4. When the trial judge in a criminal case explicitly asks the parties if they want to have the jury polled, which would accomplish the same purposes as having the trial judge inquire into the accuracy of the verdict, and the defendant declines the request for polling, the appellate court should not consider a challenge to the procedure for accepting the verdict for the first time on appeal based on concepts of waiver or invited error.

5. Like most trial errors, any error by the trial court in failing to comply with K.S.A. 22–3421 is subject to harmless error analysis. Before a Kansas court can declare an error harmless it must determine that the error did not affect a party's substantial rights, meaning it did not affect the trial's outcome. If the error implicates a statutory right but not a constitutional right, then before a Kansas court can declare the error harmless, the court must be persuaded that there is no reasonable probability that the error affected the outcome of the trial.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD–BURGER, P.J., MALONE, J., and DANIEL L. HEBERT, District Judge Retired, assigned.

MALONE, J.

Ktorri C. Dunlap was found guilty by a jury of aggravated robbery and felony obstruction of official duty, and at the end of his trial, the trial judge failed to ask the jury whether the verdict that was read in open court was the verdict of the jury. K.S.A. 22–3421 states that a trial judge shall follow this procedure. We must decide whether the trial judge's failure to comply with the statute constituted reversible error. Under the facts of this case, we reject Dunlap's claim that he is entitled to a new trial because of this error on two alternative grounds. First, the trial judge explicitly asked the parties if they wanted to have the jury polled, which would have accomplished the same purposes as having the judge inquire into the accuracy of the verdict, and Dunlap's counsel declined the request for polling. In such cases, appellate courts should not consider a challenge to the procedure for accepting the verdict for the first time on appeal based on concepts of waiver or invited error. Second, any error by the trial court in failing to comply with K.S.A. 22–3421 is subject to harmless error analysis. Because we are persuaded that the error did not affect Dunlap's substantial rights, we conclude the trial court's failure to comply with K.S.A. 22–3421 constituted harmless error.

On May 29, 2010, at approximately 7 a.m., Damon Reynolds was working as a clerk at the Surf & Go convenience store in Atchison. Reynolds was sweeping the parking lot when a white Ford pickup truck pulled into the lot and parked on the south side of the building. A man exited the truck and entered the convenience store, so Reynolds followed the man into the store to serve him. Although Reynolds did not know the man's name, he had seen him numerous times before and recognized him because of a tattoo on his left cheek. Inside the store, the man asked Reynolds for a pack of Newport cigarettes. Reynolds walked behind the counter to get the cigarettes, and he noticed that the man was following him. When Reynolds turned around he saw a gun in the man's hand. The man told Reynolds that he was not going to hurt him, but he wanted money. The man took cash from the register and a carton of cigarettes. He left the store and got back into the pickup truck which drove away from the parking lot. Surveillance cameras captured images of these events.

Reynolds immediately reported the robbery to the police and gave a description of the man and the white Ford pickup truck. Officer Joshua Sinclair spotted the truck matching the description provided by Reynolds. Sinclair recognized the driver of the truck as Sheila Vanwey. As the vehicle slowed down, a man jumped out of the passenger side of the truck and ran into the backyard of a house. Sinclair shouted at the man to stop and began to chase him on foot. During the chase, Sinclair recognized the man from previous encounters as Dunlap. Reynolds eventually caught up with Dunlap and ordered him to the ground. Backup units then arrived and secured Dunlap. Officers searched the area and located a vest Dunlap had been wearing as well as an open carton and several unopened packages of cigarettes. Eventually, officers located a BB gun resembling a handgun in the area where Dunlap had been arrested.

Following his arrest, Dunlap waived his Miranda rights and agreed to speak with Officer Travis Eichelberger. Dunlap initially told Eichelberger that he could not remember much that had happened. Eichelberger then showed Dunlap surveillance video of the robbery and, after several viewings, Dunlap said, “I can't watch this anymore, it's me.” The State charged Dunlap with one count of aggravated robbery and one count of obstruction of legal process or official duty. Prior to trial, Dunlap's counsel filed a motion to determine competency. The district court entered an order for a mental examination, and Dunlap was found competent to stand trial. After a preliminary hearing wherein Reynolds and Sinclair testified for the State, Dunlap was bound over for trial.

A jury trial commenced on September 28, 2010. Reynolds identified Dunlap as the man who robbed him at the convenience store. Sinclair identified Dunlap as the man he chased on foot and arrested a short time after the robbery. Eichelberger testified about Dunlap's incriminating statements during the interview. Vanwey also testified for the State. She stated that on the morning of May 29, 2010, she gave Dunlap a ride in her truck to the Surf & Go convenience store, and she waited in the truck while he went into the store. Vanwey testified that when Dunlap returned he was carrying cigarettes and money. Vanwey admitted she was afraid that Dunlap had robbed the store. The State introduced evidence of the carton of cigarettes and the BB gun found in the area where Dunlap was arrested. The State also introduced into evidence numerous surveillance photographs clearly depicting Dunlap robbing Reynolds with a handgun.

Dunlap did not testify at trial and he called no witnesses. After deliberating 21 minutes, the jury returned guilty verdicts on charges of aggravated robbery and obstructing official duty. The trial judge read the verdicts in open court:

“THE COURT: All right.

“The Court will note the jury is all present, as are counsel and the defendant.

“The jury has reached its verdict.

“The Court will read the verdict.

“No. 1.

“We, the jury, find the defendant guilty of the crime of aggravated robbery.

“Signed by the Presiding Juror.

“No. 2.

“We, the jury, find the defendant guilty of the crime of obstructing official duty.

“Signed by the Presiding Juror.

“Are there any requests of the Court to poll the jury, first by the State?

“MR. KUCKELMAN: No, Judge.

“THE COURT: Mr. Campbell?

“MR. CAMPBELL: No, Judge.

“THE COURT: All right.

“Ladies and gentlemen of the jury, this completes your jury service for today and, hopefully, for the rest of your term.”

The verdict forms reflecting the guilty verdicts were filed with the court, and the judge ordered a presentence investigation (PSI) report. Dunlap later filed a motion for acquittal notwithstanding the verdict and/or motion for new trial challenging the sufficiency of the evidence and the fact that “no persons of color were on the jury.” Dunlap also filed a motion for durational departure. On November 1, 2010, the trial court denied the posttrial motions. Dunlap's PSI report disclosed 15 prior convictions including a prior conviction of aggravated robbery. Based upon Dunlap's criminal history, the trial court imposed the standard presumptive sentence of 216 months' imprisonment. Dunlap timely appealed his convictions.

Dunlap's brief states one issue: “The district court erred when it accepted the jury's verdict without inquiring into the accuracy of the verdict.” Dunlap argues that K.S.A. 22–3421, which sets forth the procedure for accepting a jury verdict in a criminal case, requires that an inquiry be made as to whether the verdict read in open court is the jury's verdict and that the district court's failure to do so constituted reversible error. Dunlap has waived and abandoned any other claim of error that he raised in district court. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).

Resolution of this issue requires this court to interpret K.S.A. 22–3421. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). Furthermore, appellate courts exercise de novo review over issues of jury unanimity. State v. Dayhuff, 37 Kan.App.2d 779, 784, 158 P.3d 330 (2007).

K.S.A. 22–3421 sets forth the procedure for the district court to accept a jury verdict in a criminal case and provides:

“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and...