State v. Matei
| Decision Date | 02 January 2015 |
| Docket Number | 110,004.,110,003 |
| Citation | 340 P.3d 1236 (Table) |
| Parties | STATE of Kansas, Appellee, v. Luca MATEI, Appellant. |
| Court | Kansas Court of Appeals |
Luca Matei, appellant pro se.
Lee J. Davidson, assistant attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRJDGE, JJ.
Luca Matei appeals his conviction for attempted attempting to influence a judicial officer on several grounds, arguing that the district court erred by improperly impaneling the jury, limiting the questions it allowed him to ask potential jurors during jury selection, excluding evidence, improperly instructing the jury, and violating the United States Supreme Court's decision in Brady v. Maryland. Matei also contends that the prosecutor's abusive questioning of Matei and improper statements during closing argument require a new trial. We have carefully examined each of Matei's arguments, but we find no reason to set aside the jury's verdict.
In 2006, while managing an apartment complex, Matei made repeated entries into the apartment of an 18–year–old woman by using his manager's key. On one occasion, Matei grabbed the woman's bottom, and on another, he made inappropriate comments about the woman's breasts and asked to touch them. The woman immediately reported Matei's behavior to the police, and Matei was charged with and convicted of sexual battery. This court affirmed his conviction on appeal. State v. Matei, No. 98,720, 2008 WL 2796473, at *1 (Kan.App.2008) (unpublished opinion), rev. denied 287 Kan. 768 (2009).
Following his conviction for sexual battery, Matei was charged with two additional crimes: (1) failing to register as a sex offender as required by law after his sexual-battery conviction; and (2) attempted attempting to influence a judicial officer. It is the second of these crimes that is at issue in this appeal.
The circumstances surrounding the alleged crime are as follows. On September 30, 2010, after Matei had been convicted of sexual battery and while he was challenging that conviction in Judge Robert Schmisseur's court, Matei went to a Walmart pharmacy where Donna Schmisseur, the judge's wife, worked. At the pharmacy, Matei asked to speak with Donna Schmisseur. Mrs. Schmissuer testified that Matei had told her he had a case in front of her husband and that her husband didn't have all the information he needed to decide Matei's case. Matei then handed her an envelope. Mrs. Schmisseur testified that she had been under the impression that Matei had wanted her to give the information in the envelope to her husband. Judge Schmisseur confirmed that at the time Matei had approached his wife, he had been deciding how to rule in Matei's case.
Matei's testimony was largely consistent with the Schmisseurs' testimony. Matei admitted to delivering a document to Mrs. Schmisseur at the pharmacy where she worked. He also admitted that Judge Schmisseur was deciding a case in which he was a defendant at the time he brought Mrs. Schmisseur the letter. He contested Mrs. Schmisseur's assumption that he had intended for her to give the document to Judge Schmisseur. He said he had simply wanted Mrs. Schmisseur to read it so she could “know the reality” of his sexual-battery conviction. He emphasized that Judge Schmisseur already had a copy of the document he gave to Mrs. Schmisseur and that the document he gave her didn't contain any additional information. Matei also said that he had written numerous government officials to draw attention to his case and that he had given each of them the same document he gave to Mrs. Schmisseur.
On July 14, 2011, Officer Jeff Ward interviewed Matei about giving Mrs. Schmisseur the documents. Ward testified that he had shown Matei a copy of the document he had given to Mrs. Schmisseur and asked if he had, in fact, given her the document. Ward said that Matei had said he had given it to her because he wanted Judge Schmisseur to overturn his sexual-battery conviction and Judge Schmisseur had not yet decided whether to do so.
The State charged Matei with attempted attempting to influence a judicial officer, an odd-sounding charge. The crime of attempting to influence a judicial officer requires “communicating with any judicial officer ... with intent improperly to influence such officer.” K.S.A. 21–3815. Matei couldn't be charged with that offense because he didn't talk directly to Judge Schmisseur. But a person can be charged with attempting another crime whenever the person takes an “overt act toward the perpetration of [the] crime” and “intends to commit” the crime but fails to commit it or is stopped from carrying it out. K.S.A.2010 Supp. 21–3301(a). Thus, since Matei didn't speak directly with Judge Schmisseur, the State charged Matei with attempted attempting to influence a judicial officer.
Matei pled not guilty, and the case proceeded to trial. For the most part, Matei represented himself at trial, though he had a court-appointed attorney present to assist him. The jury found Matei guilty on September 28, 2012. Matei moved for an acquittal and a new trial, but his motions were denied, and he was sentenced to a controlling 24–month probation term with an underlying 24–month prison sentence for this crime and for failing to register as a sex offender.
Matei has appealed to this court. We will discuss each of his claims in the next section of our opinion. We note that Matei is self-represented on appeal too, and some of his arguments are hard to understand. We have done our best to discern the basis of his complaints and to respond to them here.
Matei contends that the district court erred by not striking five jurors—the jury foreman, who knew the Schmisseurs, and four other jurors who Matei contends attended the Schmisseurs' church. As an initial matter, the State correctly argues that Matei did not preserve for this court's review any issue about the jury foreman's suitability. In order to complain on appeal that he was prejudiced by the district court's failure to remove a juror, Matei needed to have sought to strike the juror for cause or to have exercised a peremptory challenge to remove that person from the jury. See K.S.A. 22–3410(1)(3) ; K.S.A. 22–3412(a)(2)(C) ; see also State v. Burton, 235 Kan. 472, 483–84, 681 P.2d 646 (1984) (). A peremptory challenge gives each party the right to remove a certain number of jurors from the panel that the party believes might be biased even though the jurors are not subject to challenge for cause. See State v. Hill, 290 Kan. 339, 359–60, 228 P.3d 1027 (2010) ( peremptory challenge). Matei did not move to strike the person who became the jury foreman for cause; nor did he use one of his peremptory challenges to prevent him from serving. Accordingly, we cannot review Matei's claim that he was denied a fair trial due to the district court's failure to discharge this juror. See Burton, 235 Kan. at 484.
We turn then to jurors Matei did object to. He objected to jurors 2, 7, 13, and 17 because they “may go to church with [the Schmisseurs].” The district court denied Matei's request to strike these jurors for cause. After the district court denied Matei's request, Matei had six peremptory challenges that he could use to ensure that biased jurors did not hear his case. But Matei only used two of his peremptory strikes on the jurors he believed attended the Schmisseurs' church. Accordingly, jurors 7 and 13 did not serve on the jury, but jurors 2 and 17 did. Matei used his other four peremptory strikes to remove jurors that he had not tried to remove for cause.
Since Matei removed jurors 7 and 13 with his peremptory strikes, their ability to serve on the jury and their qualifications for serving were no longer at issue. See State v. Dixon, 248 Kan. 776, 789, 811 P.2d 1153 (1991). We must determine whether the jury that actually heard Matei's case was impartial. See State v. Heath, 264 Kan. 557, 587–88, 957 P.2d 449 (1998) ; State v. Crawford, 255 Kan. 47, 51–52, 872 P.2d 293 (1994). And jurors 7 and 13 did not serve on that jury.
Of course, Matei did have to use his peremptory challenges to remove these jurors. But the mere fact that a defendant is forced to use a peremptory strike to remove a juror does not mean that the district court has violated the defendant's constitutional right to a fair trial. Heath, 264 Kan. at 587–88. This is because peremptory challenges—like challenges to strike for cause—are means to achieve the end of an impartial jury, and so long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that end does not mean the defendant's rights were violated or that the defendant was prejudiced. 264 Kan. at 587–88 ; accord State v. Doyle, 272 Kan. 1157, 1168, 38 P.3d 650 (2002).
To establish prejudice resulting from a district court's decision not to strike a juror for cause when the defendant then removes the juror with a peremptory challenge, the defendant needs to show that because he was forced to use peremptory strikes on the jurors that the district court should have removed for cause, other objectionable jurors served on the jury. Heath, 264 Kan. at 587–88 ; State v. Thompson, 232 Kan. 364, 367, 654 P.2d 453 (1982). Matei has not made that showing.
Matei nonetheless argues that jurors 2 and 17 prejudiced him because they served on the jury when they should have been removed by the court for cause. But Matei did not use a peremptory strike to remove them, even though he had six peremptory strikes and needed to use only two of them to remove other jurors he objected to. The Kansas Supreme Court has examined this factual scenario before and has held that when the record fails to demonstrate the defendant's reason for not using peremptory challenges to strike jurors he...
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