State v. Jaghoori

• Decision Date: 12 August 2016
• Docket Number: 112,920
• Parties: State of Kansas, Appellee, v. Manzoor Jaghoori, Appellant.
• Court: Kansas Court of Appeals

State of Kansas, Appellee, v. Manzoor Jaghoori, Appellant.

No. 112, 920

Court of Appeals of Kansas

August 12, 2016

NOT DESIGNATED FOR PUBLICATION

Appeal from Johnson District Court; Thomas Kelly Ryan, judge.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Steven J. Obermeier, senior deputy district attorney, Stephen M Howe, district attorney, and Derek Schmidt, attorney general for appellee.

Before Gardner, P.J., Buser and Standridge, JJ.

MEMORANDUM OPINION

PER CURIAM

Manzoor Jaghoori appeals his conviction for aggravated robbery following a second jury trial. His earlier conviction for the same offense and additional offenses of aggravated assault and criminal possession of a firearm were set aside based on his claim of ineffective assistance of counsel. In this appeal, the defendant argues that the jury instruction defining the elements of aggravated robbery (1) was broader than the crime alleged in the complaint and (2) allowed for a conviction under alternative means without requiring the State to prove each means beyond a reasonable doubt. Finding no reversible error, we affirm.

Facts

Jaghoori's conviction stemmed from an altercation arising out of his effort to regain possession of stereo speakers on behalf of Ashley Clark, his girlfriend. Clark purchased the speakers from Gregorio De Lao, who was her former boyfriend. De Lao recently had repossessed the speakers from Clark after she failed to pay in full for them as she had promised. Several people were involved in or witnessed the altercation between Jaghoori and De Lao. Each had different accounts of how the events unfolded, including who started the fight and whether Jaghoori had a gun.

The altercation occurred in 2006. The first trial took place in 2007. After the first trial, a jury convicted Jaghoori of two counts aggravated assault and one count each of aggravated robbery and criminal possession of a firearm. Jaghoori's convictions were upheld on direct appeal, but he ultimately was granted a new trial in postconviction proceedings based on a finding that he was deprived of his right to effective assistance of counsel during trial. See Jaghoori v State, No. 108, 892, 2013 WL 5925964 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1270 (2014).

Before the second trial was to begin in August 2014, the State filed a motion to allow the testimony of three witnesses, including the victim, to be presented to the jury in the form of prior testimony from the first trial. In support of the request, the State claimed the witnesses were unavailable. The district court granted the motion, finding sufficient evidence that the State had exercised due diligence and put forth a good-faith effort in an attempt to produce the witnesses for trial but to no avail. See K.S.A. 60-459(g) (defining "unavailable as a witness" to include circumstances where the witness is "absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts"); see also State v. Young, 277 Kan. 588, 597-98, 87 P.3d 308 (2004) (The State must show that the witness cannot be produced at trial by the exercise of due diligence and good faith in order for the court to declare a witness unavailable and to permit use of prior testimony from an absent witness.).

At trial, the jury heard testimony from De Lao stating that on the evening of August 21, 2006, Jaghoori and some other men approached him in the alley as he left work. Jaghoori asked De Lao where the speakers were while holding a pistol up to the side of De Lao's face and neck. When De Lao responded that he did not have them, another man hit him with a "tube." De Lao fell to the ground as the men continued to punch and kick him, and then Jaghoori asked De Lao for the keys to his car. According to De Lao, he did not want to give Jaghoori the keys, but he did so to avoid additional beating. Someone then took De Lao's car, but De Lao did not see who was driving.

The jury heard testimony from two other witnesses who corroborated De Lao's version of events. The testimony from these witnesses stated that they saw Jaghoori with a gun, observed the men hitting and kicking De Lao, and saw Jaghoori take De Lao's keys. These witnesses also testified that Jaghoori gave the keys to a girl who drove De Lao's car away from the scene.

Clark testified at the second trial in person. She said that De Lao pulled a knife on Jaghoori during the altercation and that Jaghoori did not have a gun. Clark remembered that Jaghoori handed her the keys to De Lao's car and that she then drove away in the car with Jaghoori in the passenger seat. She specifically remembered that Jaghoori was in the passenger seat and not the driver's seat because Jaghoori did not know how to drive a standard transmission car.

Jaghoori, for his part, denied having a gun during the altercation. He claimed that De Lao was armed with a knife and started the fight. Jaghoori admitted to hitting De Lao several times, even after De Lao fell to the ground. Jaghoori said that when he asked De Lao for the speakers, De Lao voluntarily gave Jaghoori the keys to his car. Believing the speakers were in De Lao's car, Jaghoori said he took the keys, gave them to Clark, and told her to get the speakers. Instead, Jaghoori said Clark drove away in De Lao's car. Jaghoori said that he then left in his brother's car. Jaghoori's brother, who also was present during the altercation, provided testimony similar to that provided by Jaghoori.

The jury ultimately found Jaghoori guilty of aggravated robbery and not guilty on the remaining charges. The district court denied Jaghoori's posttrial motion for judgment of acquittal and motion for new trial. Jaghoori was sentenced to 216 months in prison for his conviction of aggravated robbery.

Analysis

Jaghoori raises two issues on appeal. First, he claims the aggravated robbery jury instruction was broader than the crime alleged in the complaint. Second, he claims this instruction allowed for a conviction under alternative means and the State failed to prove each means beyond a reasonable doubt. We address each of these claims in turn.

Jury instructions

The standard of review when addressing challenges to jury instructions is based upon the following analysis:

"'(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).' [Citation omitted.]" State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).

In the complaint, Count I described the property Jaghoori took as "to-wit: a black 1996 Volkswagen Jetta car." The State's proposed jury instruction relating to this count dropped the to-wit clause and identified the property Jaghoori took simply as "property." Jaghoori objected at the instructions conference and asked the district court to reinsert the to-wit clause in the instruction to make it consistent with the complaint. The district court denied Jaghoori's request, noting that the State's proposed instruction was patterned after PIK Crim. 4th 54.410 and was identical to the aggravated robbery jury instruction issued in Jaghoori's first trial. As requested by the State, jury instruction No. 12 identified the property Jaghoori took as "property."

Jaghoori argues that this instruction broadened the basis for his conviction beyond the taking of specific property from De Lao as charged in the complaint-a black 1996 Volkswagen Jetta-by allowing the jury to convict him based on the taking of any property from De Lao, including but not limited to the keys to De Lao's black 1996 Volkswagen Jetta.

During the instructions conference, Jaghoori objected to the proposed language ultimately used by the district court in the instruction at issue here. Accordingly, Jaghoori's challenge to the instruction is reviewable on appeal.

Next, we consider whether the instruction was legally appropriate. Recently, our Supreme Court explained Kansas law regarding overly broad jury instructions:

"A jury instruction on the elements of a crime that is broader than the complaint charging the crime is erroneous. The reason for this is because the charging instrument sets out the specific offense alleged to inform the defendant of the nature of the accusation, to permit the development of a defense to meet that accusation, and to protect against conviction based on facts not contemplated in the accusation. Accordingly, the State is bound by the wording of its charging document, and the prosecution and district court must use caution in conforming the jury instructions to the charges."

"Generally, if a jury instruction on the elements of a crime adds alternate statutory elements that were not contained within the language of the complaint or information charging the defendant with the crime, the instruction is overly broad and, thus, erroneous." State v. McClelland, 301 Kan. 815, Syl. ¶¶ 4-5, 347 P.3d 211 (2015).

There appear to be no Kansas cases that address whether the specific items of property listed in the complaint should be listed in the jury instructions for robbery....