State v. McNellis
| Decision Date | 26 July 2019 |
| Docket Number | No. 118,420,118,420 |
| Citation | 444 P.3d 1017 (Table) |
| Parties | STATE of Kansas, Appellee, v. Kevin William MCNELLIS, Appellant. |
| Court | Kansas Court of Appeals |
Kevin W. McNellis, appellant pro se.
Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Leben, P.J., Green and Powell, JJ.
Kevin McNellis, who represents himself on appeal, appeals his conviction and sentence for battery against his wife, Kara. We will summarize the rulings we are making on the many issues McNellis has raised before explaining our decision in more detail. In McNellis' brief on appeal, he lists 19 separate issues. We have reorganized them a bit—now showing 11 issues—but have addressed the points he raised.
First, McNellis complains about the record on appeal and his access to it. He complains that the district court didn't properly handle motions he filed to add items to the appellate record and that the district court didn't send him a paper copy of its records. But some items he wanted in the record couldn't properly be included—his correspondence with his attorneys may relate to an ineffective-assistance-of-counsel claim that he could raise in a later habeas corpus proceeding but no habeas claim is now before us. And we cannot identify any other document that hasn't been included in the record that might reasonably affect resolution of the issues he has raised on appeal. As for the availability to him of a paper copy of the record, the district court clerk made the record available to him electronically at the courthouse. McNellis suggests that because he lives hundreds of miles away, the clerk's efforts here are not ideal. But McNellis was also represented for a time by an attorney who had the full record, and McNellis acknowledges that his former attorney's assistant sent McNellis "the last known record on appeal dated November 2017, with all items on record attached accordingly with PDF files, or similar ...." Since the full record at that time was provided to McNellis by his former attorney and the clerk made the full trial-court record available (even if only at the clerk's office), we find no reversible error here in the handling of the record.
Second, McNellis addresses alleged errors involving the withdrawal of his trial attorney. But McNellis doesn't show how this had any impact on the trial. McNellis represented himself at trial, and he hasn't suggested he provided inadequate representation. With no connection between this claim and the trial outcome, McNellis hasn't shown a trial error involving his prior attorney.
Third, McNellis raises a series of issues related to the State's grant of immunity to Kara at the preliminary hearing. But he once again doesn't show how this affected his trial and he didn't object at the preliminary hearing to the State's grant of immunity to Kara. Because he didn't raise the issue in the district court, he cannot raise it on appeal.
Fourth, McNellis claims that the court erred by allowing officer Matt Pfrang to refresh his memory by looking at his police report—which McNellis calls a script—while testifying at the preliminary hearing. But a witness who has an independent recollection of the subject matter can use a document to refresh memory, so the court didn't err in allowing the officer to do so.
Fifth, McNellis raises arguments that the attorneys who represented him were ineffective. But we usually will not consider an allegation of ineffective assistance of counsel for the first time on appeal because the factual basis for the claims hasn't been developed in the trial court. We see no reason to deviate from that rule here.
Sixth, McNellis claims that the district court erred by not letting him call Kara McNellis to testify at trial by electronic means while she remained in Illinois. Although Kansas law allows for witnesses to testify from another place under special circumstances, McNellis hasn't shown that the compelling circumstances required to allow such testimony existed. So he has not shown that the district court abused its discretion by denying the request.
Seventh, McNellis argues that the district court erred by not removing potential jurors who had "self-admitted conflict[s] of interest." But McNellis didn't raise this issue in the district court and doesn't cite any exception to the general rule that issues must be raised first in the trial court to be considered on appeal. We therefore decline to take up this claim of error.
Eighth, McNellis claims that the district court failed to keep jurors and the prosecutor from using the same public restroom during the trial. But jurors are instructed at the start of a trial not to talk about the case to anyone or let anyone talk to them about it. We presume that the jurors followed that instruction and find no error in letting jurors use the public restroom in the hallway of a courthouse.
Ninth, McNellis claims the prosecutor erred by presenting evidence from officers and hotel employees about what Kara told them at the hotel. But McNellis didn't object to the admission of this evidence at trial, and a trial objection is needed to preserve an evidentiary issue for appeal.
Tenth, McNellis says there wasn't sufficient evidence to support his conviction. But the State had to prove only that McNellis hit Kara at least one time that night in anger. Several witnesses at trial who testified that McNellis injured Kara, describing blood dripping from her ear, red marks on her neck, and Kara's statements about her injuries. There was more than sufficient evidence to supports McNellis' conviction for battery.
Last, McNellis claims the district court erred by issuing two arrest warrants while he has been on probation. He objects that the first warrant was issued before he was given a chance to "appear and defend." But a warrant is issued on probable cause, not after a contested trial. The court followed the proper procedure, and McNellis has the right to defend against the allegation after arrest. McNellis argues that the second bench warrant apparently was issued against him in retaliation for proper conduct. But he has not shown that he raised that issue in the district court or any reason why it may be raised for the first time on appeal.
With that overview, we will go on to review the case and issues on appeal more fully.
McNellis, who represents himself on appeal, appeals his conviction for battery against his wife, Kara.
In May 2015, an employee at the Bluemont Hotel in Manhattan called 911 after a guest—Kara—reported that "her husband assaulted her and hit her multiple times." When officers arrived at the hotel room where the incident had occurred, officers found Kara being treated by emergency medical personnel.
We start with the facts set out in Kara's written statement to the police. She said that she and McNellis had driven from their home in Chicago to Manhattan to visit family. She said they argued for the "majority of [the] car ride."
After the couple arrived at the Bluemont Hotel, Kara checked into the hotel and McNellis went to a bar. He returned to the hotel about an hour later, but the two kept arguing. McNellis left again and "went out drinking for the rest of the evening." He returned to the hotel room around 11 p.m.
Kara said that she and McNellis were in separate beds when "he became agitated." She then said that McNellis started to restrain her in her bed, "held his hands around [her] neck and was squeezing, [and] repeatedly put [her] in a chokehold position and was twisting [her] neck to the point of pain." Then Kara said he hit her three to four times on the left side of her face.
Kara said that at that point she "was able to get away, off [the] bed into the corner of the room[, but] he restrained [her] again around [her] neck and struck [her] 2-3 more times and spit in [her] face." Kara described "screaming throughout this ordeal." Finally, McNellis left the hotel room with Kara's phone and car keys.
One officer who responded to the incident, Michael Wagenblast, interviewed Kara, and that interview was recorded on his body camera. He also took photos of the injuries Kara sustained, including a cut ear, bruised eyelid, and marks on her neck.
According to an email hotel employee Ashley Arth wrote to her supervisors, Kara called the front desk around 11:35 p.m. "and said that her husband had physically abused her by hitting her in the head and choking her." The email also said Kara "thought she needed to be check[ed] out because at one point in time she blacked out during the abuse." Arth said she called the police as soon as she got off the phone with Kara.
The State charged McNellis with one count of aggravated battery. Before trial, though, the State amended the charge to simple battery, a misdemeanor. The elements of battery charged here were (1) physical contact (2) done in a rude, angry, or insulting manner. See K.S.A. 2018 Supp. 21-5413(a)(2).
McNellis was first represented by attorney Colt Knutson, who later withdrew because of "complete and irreconcilable differences" and because "[c]ommunication and dialogue between [McNellis] and counsel ha[d] ceased to exist." The district court then appointed Gary West to represent McNellis. West later withdrew, also because of "[i]rreconcilable differences." The court tried to appoint a third attorney, Brenda Jordan, to represent McNellis. McNellis rejected that appointment and, "[a]fter being fully advised, [McNellis] waive[d] his right to counsel and refuse[d] stand-by counsel."
McNellis represented himself at trial. The jury heard from Wagenblast, two hotel employees (Arth and Severance Hill), and McNellis. Kara wasn't able to come to Kansas for the trial due to a high-risk pregnancy, so the State read to the jury testimony that she had given at an earlier hearing.
The jury found McNellis guilty of battery. The district court sentenced him to 12 months of...
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