State v. Klavetter
| Decision Date | 06 August 2021 |
| Docket Number | No. 120,584,120,584 |
| Citation | 494 P.3d 235 |
| Court | Kansas Court of Appeals |
| Parties | STATE of Kansas, Appellee, v. Daniel J. KLAVETTER, Appellant. |
Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Malone, P.J., Warner and Hurst, JJ.
Daniel Klavetter was convicted of two counts of aggravated indecent liberties with a child, off-grid person felonies, for interactions involving his fiancé's two daughters. He now appeals, challenging various aspects of the jury-selection proceedings during his trial. Klavetter also argues the district court abused its discretion when it denied his request for a departure from the presumptive sentence of life imprisonment. After carefully considering the record and the parties' arguments, we affirm Klavetter's convictions and sentence.
Klavetter met his fiancé (who we refer to in this opinion as Mother) at her family's Thanksgiving dinner in 2015. At the time, Klavetter lived with Mother's sister and brother-in-law in Olathe. He and the brother-in-law had been best friends since childhood, and Klavetter was well liked by the family.
Mother lived in Emporia with her 11- and 12-year-old daughters. (Because both daughters have the same initials, we refer to them as the "older daughter" and "younger daughter.") Mother began dating Klavetter soon after the Thanksgiving holiday. Klavetter would visit the family in Emporia every week on his days off.
Initially, Mother was happy in the relationship and excited for her daughters to have a positive male role model, and potentially even a father figure, in their lives. Klavetter appeared to be forging a close relationship with the girls, helping Mother put them to sleep and spending time with them whenever he was around. Mother trusted Klavetter enough to leave him alone with her daughters, and she thought they were all getting "along wonderfully."
As time went on, however, this relationship changed. Mother grew somewhat concerned when she learned Klavetter had been spending time in the girls' bedroom when she was not around. Mother later noted that this behavior raised a "red flag," but at the time she "really wasn't sure ... what to really make of it." And Mother's older daughter confessed to Mother that although she had been comfortable around Klavetter at first, she no longer liked him.
Despite any misgivings, in the summer of 2016, Mother and the daughters moved into a two-bedroom apartment with Klavetter in Olathe. Mother and Klavetter became engaged shortly thereafter.
Later that same summer, Mother's older daughter attended a church camp in Wisconsin. When she came home from her trip, she felt sick from the long car ride and went to bed early. Some hours later, she woke to find Klavetter lying in her bunkbed and touching her; he had one hand on her bra and one hand down her pants, touching her vagina. The older daughter was terrified and felt frozen, but she managed to pull away from Klavetter and locked herself in the bathroom, waiting until he left to return to bed.
The next morning, the older daughter told Mother that "something really bad had happened." Mother confronted Klavetter after the daughter revealed what he had done. Klavetter admitted that he had gotten into the bunkbed and "dozed off" while lying next to the older daughter, and that he woke up when she turned the bathroom light on. But Klavetter claimed he did not remember touching her and said that he must have thought he was in bed with Mother. He later told another family member that he "probably did it"—meaning, touched the daughter inappropriately—but "just [didn't] remember."
Klavetter continued to live at the apartment after the incident with the older daughter because Mother thought they "could work through [it] as a family." But about two weeks later, Mother's younger daughter revealed that Klavetter had also touched her inappropriately. The younger daughter told Mother that Klavetter would frequently put his hand down the back of her pants when he hugged her. And she described an incident that had occurred soon after they had moved into the Olathe apartment—about a month before Klavetter had touched the older daughter—when Klavetter had put his hands down the back of her sweatpants, inside her underwear, while they were lying on the couch watching TV. The younger daughter said she had kept quiet even after her sister had come forward because Mother seemed to be happy with Klavetter and the younger daughter did not want to "mess that up." Klavetter denied touching the younger daughter, but Mother immediately told Klavetter to move out of the house.
Mother and the two daughters began attending counseling, which led to the Department for Children and Families investigating the matter. After several months and multiple interviews with social workers and detectives, the State charged Klavetter with two counts of aggravated indecent liberties with a child.
The case against Klavetter proceeded to trial, and a jury found him guilty of both charges. These convictions each carry a presumptive sentence of life imprisonment with no possibility of parole for 25 years. See K.S.A. 2020 Supp. 21-5506(b)(3) ; K.S.A. 2020 Supp. 21-6627(a)(1)(C).
At sentencing, Klavetter requested a durational departure, arguing he did not have any previous criminal record. He also argued that the degree of harm in these offenses was lower than typical aggravated indecent-liberties cases. The district court found Klavetter failed to show substantial and compelling reasons warranting a departure. The court therefore imposed two life sentences for his offenses, with a mandatory minimum of 25 years' imprisonment before eligibility for parole, to be run consecutively.
In his appeal, Klavetter challenges various aspects of the proceedings that led to his convictions and sentence. He claims that three events during jury selection violated his constitutional rights to a jury trial and to due process of law under the Sixth and Fourteenth Amendments to the United States Constitution. He also claims the district court abused its discretion at sentencing when it denied his request for a dispositional departure. We first address Klavetter's jury-selection challenges and then turn to his sentencing arguments.
1. The jury-selection proceedings during Klavetter's trial were fair.
Klavetter challenges several actions during jury selection at his trial. He asserts that he was denied a trial by his peers when the questionnaires of potential jurors were provided to his attorney but not him personally. He also asserts that the prosecutor erred when the prosecutor stressed that it was the jury's role to assess guilt, not to consider punishment. Finally, he asserts his rights were violated when bench conferences with various prospective jurors—all of whom were eventually removed from the jury pool—were held outside his presence.
As our discussion below explains, we do not find these arguments persuasive. Kansas caselaw demonstrates that Klavetter's first two claims of error, involving the questionnaires and the prosecutor's comments, are without merit. With regard to his third claim, Kansas courts have not squarely decided whether a defendant in a criminal case has a right to be present during sidebar discussions with prospective jurors. But even assuming Klavetter had a right to be present during these conversations, he has not shown that his exclusion from these discussions violated his rights, as all the prospective jurors involved were removed from the jury pool for cause or by peremptory strike.
1.1. Klavetter's constitutional right to a jury trial was not violated when his counsel—but not Klavetter personally—received and reviewed the questionnaires from prospective jurors.
Klavetter argues that the jury-selection proceedings violated his constitutional rights under the Sixth Amendment to the United States Constitution because he was not able to personally review the questionnaires submitted by prospective jurors during voir dire. Klavetter acknowledges that his counsel received these questionnaires and had the opportunity to review them. But he asserts that his counsel's decision not to share the questionnaires with him violated his constitutional right to be tried by a jury of his peers.
The Sixth Amendment secures the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community—or as Klavetter puts it, "an impartial jury of his peers." See Berghuis v. Smith , 559 U.S. 314, 319, 130 S. Ct. 1382, 176 L. Ed. 2d 249 (2010). Typically, a challenge brought under this section arises when members of a particular group are excluded from serving on a jury. See Duren v. Missouri , 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979) (); cf. Batson v. Kentucky , 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (). Klavetter does not argue that any person or distinctive group of persons was excluded from the jury. Instead, he asserts that because he personally was not given the opportunity to review the juror questionnaires, there was no way for him to know "if possible jurors were ‘peers’ or not."
Our Kansas Supreme Court considered a similar argument to the one Klavetter raises in State v. Plaskett , 271 Kan. 995, 1027, 27 P.3d 890 (2001). The Plaskett court found no violation of the defendant's rights when juror questionnaires were supplied to defense counsel. The court observed that the decision to provide the defendant a copy of the questionnaires is a...
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