State v. Harris

• Decision Date: 14 May 2021
• Docket Number: No. 122,348,122,348
• Citation: 486 P.3d 576
• Parties: STATE of Kansas, Appellee, v. Christopher C. HARRIS, Appellant.
• Court: Kansas Supreme Court

486 P.3d 576

STATE of Kansas, Appellee,

v.Christopher C. HARRIS, Appellant.

No. 122,348

Supreme Court of Kansas.

Opinion filed May 14, 2021

Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause, and Reid T. Nelson, of the same office, was with her on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by Biles, J.:

Christopher C. Harris appeals from his convictions for attempted capital murder, aggravated robbery, aggravated assault, and criminal possession of a firearm following a convenience store robbery and manhunt during which he shot a Topeka police detective. Harris argues a contingent of 15 to 20 police officers poisoned the proceedings when they entered the courtroom in an apparent show of support for the prosecution just as the jury was about to receive its instructions and deliberate. He also claims reversible error occurred when the district court denied his requested jury instructions on self-defense and attempted voluntary manslaughter, and when the prosecutor made remarks Harris considers prejudicial during closing argument. We reject these challenges and affirm the convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Around 6:30 p.m. on November 5, 2016, a man dressed in all black and wearing red shoes entered a Topeka convenience store, pointed a handgun at the cashier, and said, " ‘Give me all the fucking money, or I'm gonna kill you.’ " The clerk handed over the cash in the register. The man got into a blue PT Cruiser, and the car drove off. The cashier called 911.

Around 6:37 p.m., a nearby police officer heard a radio dispatch about the robbery and spotted a blue car matching the description. The officer followed until the car pulled into a driveway. The driver and passenger got out and ran. Other officers arrived and apprehended the driver. The passenger got away.

Detective Brian Hill assisted but then decided to go to the law enforcement center to interview the driver. Hill drove an unmarked vehicle with interior mounted emergency lights. He wore slacks and a dark colored shirt. His badge was on his duty belt with his firearm, handcuffs, and two ammunition clips. He spotted a man matching the robber's description.

At trial, Hill testified he stopped, turned on his emergency lights, and stepped out of the car. He shined his flashlight on the man, identified himself as a police detective, and asked if they could talk. As the man approached, he drew a gun and shot at Hill, striking him several times. The detective returned fire and the man fled. The first backup officer on the scene testified he "saw muzzle flash between [Hill] and [Harris.]" The officer said he also shot at the fleeing man from his car window and was "fearful" at that moment but was "not sure" if Harris ever turned to point a gun at him. Other officers quickly arrived and got the wounded detective to a hospital.

Police soon found Harris lying in a nearby alley with multiple gunshot wounds. They took him into custody and to a hospital. The State charged him with one count of attempted capital murder, one count of aggravated robbery, two counts of aggravated assault—one for the cashier and another for the first backup officer on the scene during the shooting—and one count of criminal possession of a firearm. A jury convicted Harris of all but the aggravated assault of the backup police officer.

Harris directly appeals to this court, raising these trial errors: (1) the district court abused its discretion concerning the officers' sudden courtroom presence by denying a mistrial and a postconviction motion for a new trial; (2) the court committed reversible error by denying his requested jury instructions on self-defense and attempted voluntary manslaughter; and (3) the prosecutor committed reversible error during closing by misstating the law and commenting about Harris not testifying.

Our jurisdiction is proper. See K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 2020 Supp. 22-3601 ); K.S.A. 2020 Supp. 22-3601(b)(4) (off-grid crime cases permitted to be directly taken to Supreme Court); K.S.A. 2020 Supp. 21-5401(c) ("[A]ttempt to commit capital murder is an off-grid person felony.").

MISTRIAL AND THE MOTION FOR NEW TRIAL

When the State first began presenting evidence, defense counsel objected to having uniformed police officers in the courtroom. Counsel argued this gave the false impression Harris was dangerous and required more security and also showed sympathetic support for Hill as a fellow officer. Counsel added there was no objection if out-of-uniform officers observed. The court dismissed this concern, saying it had seen just two officers so far, and only one was in the courtroom at a time. The court ruled this was not "unduly prejudicial" but acknowledged it would reconsider if a greater police presence occurred.

Nothing more happened until just before the court was about to read the instructions to the jury. That is when police officers, some in uniform and some in plain clothes, entered after the jury was seated. The following colloquy occurred at the bench:

"[Defense]: I'm going to object to having several uniformed officers in here. There's a few more coming in.

....

"[Prosecutor]: It's an open courtroom, and it's an open proceeding.... [T]his does involve an officer, as the victim in this case.

"[Defense]: This will strictly sway the jury. It is not appropriate to have uniformed police officers in here. If they want to put on street clothes, fine.

"THE COURT: Counsel, it's too much. If ... it were a sex case with a child victim, I would require any persons with any display of sympathy to be removed. And I know this is a heated case, it's an officer involved shooting.

"Officers are in the courtroom in uniform filling up half the [courtroom]. I believe Detective Hill can stay. And the ones in plain clothes can stay, but ....

"[Prosecutor]: Is the Court going to make that announcement?

"THE COURT: That will bring it to the attention of the jurors then.

"[Defense]: Maybe they could go back in the jury room?

"THE COURT: ... [T]he situation that we're in now ... that they're here, if I make any kind of display of asking them to leave, that's gonna [draw attention], more than otherwise.... I think a lot of them ... are witnesses. So they're persons that the jury has already seen in uniform.

"[Defense]: I understand that. But it's obvious what's going on here.

"THE COURT: I know. But the question is, whether it would create more of a problem if I asked them all to leave now, or if I just let them stay. And that's going to be a call that the Court's going to have to make in its discretion, in the best interest of your client.

"[Defense]: May I confer with co-counsel?

"THE COURT: I'm going to make—it's my courtroom.

"[Defense]: I understand that. No disrespect to the Court, but whether or not—I mean, because they've already all piled in here—whether or not to request a mistrial. That's what I want to speak with co-counsel about ....

....

"THE COURT: Let's read instructions and then you can address your mistrial afterwards.

"[Prosecutor]: Does the Court want me to ask them privately?

"THE COURT: I think if they all get up and leave, it's going to be obvious. I don't think this rises to the level of a mistrial. Counsel, ... would you feel better if the Court asked them all to leave now?

"[Defense]: No, because that will cause attention.

"THE COURT: I completely agree, but—

"[Prosecutor]: Do you want me to ask them?

"THE COURT: I think any act of them leaving at this point would be the same. I go back to the fact that, first of all, the majority of them are witnesses in this case. The jury has seen them before in uniform. There are a number of plain clothed—I only see one, two, three—I can't see behind the TV. I can't see how many there are, but it seems to me that not all of them are in uniform. A lot of them are plain clothed.

"[Defense]: I'm going to—

"THE COURT: They're all clearly officers. Let's proceed, Counsel. If you'll let me—if you want to make a motion later, you can."

After the jury convicted him, Harris moved for a new trial. He described what happened as "dozens of uniformed police officers and detectives [entering] the courtroom and [filling] the gallery on the State's side." He argued, "The strategic plan to pack the courtroom as they did was an obvious[ly] inappropriate display of authority and it violated the defendant's right to a fair trial." The State asserted there was no evidence the officers' presence influenced the verdict, pointing out the jury's acquittal on the aggravated assault charge concerning the backup officer.

In its written ruling denying the new trial motion, the court made the following findings:

"About [half] of the officers were in uniform and [the other half] were in plain clothes. Some of the officers ... had been witnesses during the jury trial. The court and counsel recognized them as officers, and jurors may have also recognized some officers dressed in plain clothes to be officers, but that is not entirely clear.... [T]here was no indication at that point that jurors were in any way affected by the presence of law enforcement officers.

....

"... [Those officers] sat quietly on the half of the gallery behind the [S]tate. There were no greater than 15-20 officers that walked into the courtroom about the same time. They entered at a time when there was a natural transition of the proceedings. The court had just reconvened the jury and was getting ready to instruct the jury and to hear closing remarks of counsel. There were no outbursts, no overt physical displays by officers. There was no overt ‘staring down’ of jurors. About half were in uniform and half were not in uniform. Those officers not in uniform wore plain clothes and had a badge on their person as well as their service weapon."

And from this, the court ...