State v. McDaniel

• Citation: 395 P.3d 429
• Decision Date: 09 June 2017
• Docket Number: No. 112,513,112,513
• Parties: STATE of Kansas, Appellee, v. Matthew R. MCDANIEL, Appellant.
• Court: United States State Supreme Court of Kansas

395 P.3d 429

STATE of Kansas, Appellee,

v.Matthew R. MCDANIEL, Appellant.

No. 112,513

Supreme Court of Kansas.

Opinion filed June 9, 2017

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

This is Matthew McDaniel's direct appeal of his felony-murder and aggravated robbery convictions. The focus is on the district court's handling of McDaniel's multiple pretrial requests for substitute counsel, one of which was ultimately granted. We agree the district court erred when it refused McDaniel's initial request for a new attorney without any inquiry. We also agree it was an error for the presiding judge to make on-the-record observations about McDaniel's interactions with his attorney at a time when McDaniel was not present. We discuss these missteps and the caselaw concerning them, although we hold these errors were harmless. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Ronald Wilson died from two gunshot wounds

to the head. Wichita police investigated the death and questioned McDaniel. After initially denying involvement, McDaniel eventually confessed that he, Kendall Gentry, and Christopher Brown had planned to rob Wilson two days before the crime. He speculated the robbery's purpose was to assist in covering a drug debt Brown owed because one of Wilson's relatives stole drugs from Brown.

McDaniel said the group went to Wilson's apartment and played video games until Brown signaled and Gentry shot Wilson. McDaniel admitted going through Wilson's pockets and finding a wad of cash and a cell phone. Gentry later counted about $1,000 in cash. When McDaniel was arrested the morning after the crimes, he was carrying about $350 in cash.

The State charged McDaniel with felony murder and aggravated robbery. At trial, McDaniel's confession to police was the State's primary evidence. McDaniel testified and denied the robbery was planned and said he lied in his earlier police statements because Brown and Gentry told him to and he was afraid of them. McDaniel called Gentry as a defense witness, but Gentry testified it was McDaniel who told him about a plan to rob Wilson and identified McDaniel as the shooter. Gentry admitted being present when the killing occurred but denied participating in it. The jury convicted McDaniel, and he was sentenced to consecutive terms of a hard 20 life imprisonment for the felony murder and 102 months' imprisonment for the aggravated robbery.

McDaniel timely appeals, raising three challenges to his convictions. First, he argues the district court deprived him of his right to be present at a critical stage of the trial when, after McDaniel's preliminary hearing, the court made on-the-record observations about his interactions with his preliminary hearing counsel. Second, he claims the court failed to inquire into that attorney's potential conflict of interest. Third, McDaniel contends the felony-murder jury instruction prevented the jury from considering whether McDaniel should have been acquitted because the killing was completed before the underlying felony commenced.

Jurisdiction is proper. See K.S.A. 2016 Supp. 22-3601(b)(3)-(4) (Supreme Court's jurisdiction over a criminal case in which life sentence has been imposed and defendant has been convicted of an off-grid felony).

RIGHT TO BE PRESENT AND FAILURE TO INQUIRE INTO POTENTIAL CONFLICT

Much of McDaniel's appeal focuses on his efforts to discharge his first appointed attorney, Pamela Parker, who represented him at his preliminary hearing and for the following three months. The district court then appointed new counsel. We discuss those efforts and the district court's handling of McDaniel's requests first.

Additional Facts

Prior to his preliminary hearing, McDaniel filed a pro se motion to dismiss the case. In that motion, he made generalized complaints that his prosecution and detention violated his rights under the federal and state constitutions. In early August 2012, Judge Benjamin L. Burgess presided at McDaniel's preliminary hearing. When Parker entered her appearance, she said McDaniel had just told her he wanted to move pro se for replacement counsel and he objected to any further proceedings. She also informed the court about McDaniel's pro se motion to dismiss the charges against him, "which I told him I will not argue. So I don't know if the court wants to take up those matters before we begin but I thought I would put the court on notice."

Judge Burgess asked if a written motion had been filed. Parker explained again that McDaniel had filed a pro se motion to dismiss, which was not yet set for hearing. She repeated that she had informed McDaniel she would not argue his pro se motion to dismiss but had said McDaniel could. Judge Burgess responded,

"Well, if at this juncture Mr. McDaniel has appointed counsel, there is no motion, and I have the matter on my screen right now, there is no filed motion that I've seen with regard to the other at issue—

"MS. PARKER: Oh, no, he just informed me about the motion to dismiss right now.

"THE COURT: And Mr. McDaniel is not allowed to act as co-counsel. Ms. Parker is a qualified, experienced attorney, so we will proceed."

McDaniel started to speak, but the judge cut him off, saying: "Mr. McDaniel, I don't need to hear from you. You have counsel, counsel speaks on your behalf. I don't allow defendants to act as co-counsel. It's that simple."

The hearing resumed. When Parker's turn came again to enter her appearance, she stated:

"Your honor, again, Mr. McDaniel would like to make an oral motion to have me removed from the case. I've explained that the Court has ordered him to file a written motion. He has a list of reasons he would like to address with the Court."

Judge Burgess asked the State to respond. The prosecutor conceded it probably would be more expedient to take up the oral motion for new counsel "because I don't want to have to do the hearing a second time, so that's fine." The following exchange then occurred:

"THE COURT: Well, this is a preliminary hearing. It's not the trial. I don't know that there's any need to delay the case. I'm well familiar with Ms. Parker. I know that she's a very capable lawyer. And I see no reason to delay the proceedings for the purpose of preliminary hearing at this point.

"So, Mr. McDaniel, if you wish to file a written motion—

"MR. MCDANIEL: Sir—

"THE COURT: —to—to have Ms. Parker removed from the case for ineffective assistance of counsel, for whatever reason you might have any legal basis for, you can do that but not today. It's too late.

"MR. MCDANIEL: I understand. Can I please explain a little of what I have here?

"THE COURT: Mr. McDaniel, the answer to that is no. I'm not going to allow that."

The proceedings resumed, the State presented its evidence, and Judge Burgess ordered McDaniel bound over for trial. At that point, the judge directed that the record be closed and the court went into recess. The hearing transcript reflects McDaniel was no longer present, but then Judge Burgess said, "I want to reopen the record as it pertains to Mr. McDaniel just for a moment." The judge commented,

"I just wanted to have the record reflect that during the course of the preliminary hearing I noted during the examination of [the witness] that there were conversations occurring between Mr. McDaniel and Ms. Parker. They were communicating, one to the other and back again. At one point I noted Mr. McDaniel had a smile on his face. And obviously I'm not aware of what the conversations were, but I think it becomes clear to me, at least, at this point that there is not a complete breakdown of communication."

The judge invited Parker to respond and she said,

"Your Honor, I guess I would just clarify, when I began my questioning with [the witness], I informed him that I had problems hearing him and it was through no fault of his own. It was, in fact, because, as the Court pointed out, my client was continuing to talk to me, although I had provided him a pen to write notes on. So it— that's the only clarification I would make as to—there is communication going on."

Judge Burgess resumed,

"Certainly I don't intend nor ever want to invade the privilege with regard to what conversation would occur, but I think it was fair to note there were conversations. Mr. McDaniel was speaking to you, you were speaking back to him, and it was a two-way conversation. So again, the only thought that occurs to me is just make a note of the fact there does not appear to be a complete break down [sic ] of communication."

Three weeks later, McDaniel filed a written pro se "Motion for Reappointment of Counsel." That motion is not included in the record. In mid-September, Judge Terry L. Pullman presided at a hearing on that motion. Judge Pullman summarized McDaniel's allegations as: a lack of contact with Parker; Parker not allowing him to discuss or prepare the defense, to view evidence, or to subpoena witnesses or evidence; the lack of a working relationship with Parker; and that Parker had refused to raise his "legal actions" with the court.

After McDaniel presented his complaints, Judge Pullman denied the motion but continued the trial date to give McDaniel additional time to work with Parker on trial preparation. Judge Pullman advised that McDaniel was free to refile the motion if he believed the situation did not improve. Seven weeks later, McDaniel acted on that suggestion and filed another pro se motion for substitute counsel. That motion was granted and a new attorney was appointed. We turn now to McDaniel's arguments on appeal.

Right to Be Present at Critical Stages of the Proceeding Is Violated

We first address McDaniel's claim that the district court deprived him of his right to be present at...