State v. McWilliams

• Decision Date: 03 August 2012
• Docket Number: No. 105,292.,105,292.
• Citation: 281 P.3d 598
• Parties: STATE of Kansas, Appellee, v. Shawn Baker McWILLIAMS, Appellant,
• Court: Kansas Court of Appeals

281 P.3d 598

STATE of Kansas, Appellee,

v.Shawn Baker McWILLIAMS, Appellant,

No. 105,292.

Court of Appeals of Kansas.

Aug. 3, 2012.

Appeal from Johnson District Court, SARA WELCH, Judge.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Emilie Burdette and Steven J. Obermeier, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., MALONE and McANANY, JJ.

MEMORANDUM OPINION

PER CURIAM.

Shawn Baker McWilliams was convicted of battery and two counts of criminal threat following a June 2010 altercation with Wanda Ward and Gary Webb, Ward's mentally disabled brother. McWilliams had been living with Ward and Webb for about 6 months. McWilliams was depressed and upset over the death of a friend and the fact that he did not have enough money to attend his friend's funeral. He began drinking early in the day and continued into the evening hours. Ward testified that McWilliams consumed most of a 30–pack of beer, an additional 6–pack of beer, and most of a pint of whiskey. The altercation occurred in the early morning hours that followed and ended at about 2:30 a.m.

The next morning, Ward called Kathy Wallace, McWilliams' former fiancee, and told her what had happened the night before. Wallace called the police, and McWilliams was arrested.

Following his convictions and sentencing and the court's denial of his motion for a new trial, McWilliams appealed, claiming trial errors in the court's handling of the jury's requests to have the trial testimony of two witnesses read back to it. He also claims the district court erred in instructing the jury.

Jury's Request for a Read-back of Testimony

During its deliberations the jury requested that Ward's trial testimony be read back to it. The jury also requested a read-back of Olathe Police Officer Brian Hill's testimony. McWilliams argues that the district court erred in (1) responding to the jury's requests in writing and outside of the presence of McWilliams and his counsel; (2) sending Judy Hamons, the court's bailiff, into the jury room to ask for clarification of the jury's request; and (3) directing the court reporter to read back the requested testimony in the jury room without McWilliams being present. McWilliams contends that these procedures violated the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution because they denied him his right to be present at every critical stage of his trial. See K.S.A. 22–3405(1); State v. McGinnes, 266 Kan. 121, 127, 967 P.2d 763 (1998). He also claims these procedures violated his statutory rights under K.S.A. 22–3420(3), and denied his right to a public trial guaranteed by the Sixth Amendment and § 10 of the Kansas Constitution Bill of Rights. Finally, he claims the court's read-back procedure denied him his constitutional right to an impartial judge.

During its deliberations, the jury sent the following note to the judge:

“Request List”(A)

PoliceScript/ Police Report “(B) WandaScript/Police Statement “(C)

GaryWritten statement?

“Recording?”

Before responding, the district judge met with the prosecutor, McWilliams, and his counsel in the courtroom and on the record. The court recited the jury's request and then stated:

“It's a little unclear exactly what they're requesting, but what I'm going to proposeit looks to me like they want police reports and police statements, and 1 know that both of you referred to Wanda's statement and also a preliminary hearing transcript. I distinctly remember, at least it was clear to me, there was no written statement or recording from Gary. But I am going to propose the following reply, that being you have received all of the evidence in this case. Please refer back to Instruction Number 2. And Instruction Number 2 is PIK 51.04. ‘In your fact finding you should consider and [weigh] everything admitted into evidence,’ and the rest of 51.04. With respect to the second half of this request which may be a request for a read back, may be a request for a preliminary hearing transcript; I suggest putting please clarify your request with respect to witness Wanda Ward. The Court is unsure what [you're] asking for. Do the parties have any other suggestions or have any objection to the Court responding in that way?”

Both the prosecutor and defense counsel responded, “No, Your Honor.” There was no suggestion of a different procedure.

The court then wrote out its response in the presence of counsel and again asked if either party had an objection. Again, both the prosecutor and defense counsel responded, “No, Your Honor.” The court asked the parties a third time if either party had an objection to its written response to the jury, and both counsel said, “No, Your Honor.” The court's written response to the jury was:

“You have received all of the evidence in this case. Please refer to instruction # 2. “Please clarity your request as it relates to witness Wanda Ward. Please refer to Instruction # 19.”

The jury responded with a second note, which said:

“ Request ” (1) We would request that Wanda's testimony be read back to us.”

The court again met with the prosecutor, McWilliams, and his counsel, Kasey Hollinrake. The judge read the jury's request to them and stated:

“I was still unclear whether they meant a transcript of her testimony, the preliminary hearing transcript which was referred to by Ms. Hollinrake, or her testimony. So, Ms. Hamons went back and asked for clarification, and what they want is Wanda's testimony to be read back to them. And Ms. Hollinrake, I then had you talk to your client to find out whether he wanted to be present for that read back, and he does not want to be present for that read back. Is that correct?”

Hollinrake responded, “That's correct, Your Honor.” The judge then continued:

“They want to go home tonight and have the read back in the morning. So, we will have them arrive at 9:00, and then I'll send—we'll call them into the courtroom to begin the day, and I will send them back to the jury room for that read back.”

The court then called the jury back into the courtroom where the court, in the presence of the prosecutor, McWilliams, and his counsel, described the read-back procedure for the following day. After the jury was excused, the court ask counsel if they had anything else regarding this matter they wished to put on the record. Both counsel responded that they did not.

The next morning, the lawyers and McWilliams appeared and the court asked:

“We are outside the presence of the jury. This is Day 2. When last we left them, they were seeking the read back of the witness, Wanda Ward. Miss Hollinrake, is you client's position the same, that he does not want to be present for that read back?”

Hollinrake responded, “That's correct, Judge.”

The court then sent the jury to the jury room where the court reporter read back Ward's testimony. During the read-back of Ward's testimony, the court met again with the prosecutor, defense counsel, and McWilliams outside of the presence of the jury.

“THE COURT: ... Shortly after we last met, we received another question from the jury which says, ‘Police officer's testimony, read back, please,’ signed by the foreman on—whose signature I can't read. Ms. Hollinrake, right now Ms. Highberger is still in the process of reading Wanda Ward's testimony, but once she has completed that, she ... can begin the police officer's testimony.”

“Ms. Hollinrake, does your client wish to be present for that read-back?

“MS. HOLLINRAKE: No, Your Honor.

“THE COURT: Then we will have Ms. Highberger just go on and read that after Ms. Ward's testimony in the jury room, and we'll keep you updated on any further questions. Thank you.”

Preservation of Issue for Appeal

Because McWilliams never objected to the court's procedure for responding to the jury requests, we must first address whether McWilliams has preserved this issue for appeal. We recognize the general rule that issues not raised before the trial court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). This applies equally to constitutional grounds for reversal. State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). But the exceptions to this rule include (1) issues of law arising from admitted facts when resolution of the issue is determinative of the case, and (2) issues necessary to address to prevent a denial of fundamental rights. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).

In State v. Groschang, 272 Kan. 652, 672–73, 36 P.3d 231 (2001), our Supreme Court declared that an issue regarding the district court's response to jury requests under K.S.A. 22–3420(3) may not be raised for the first time on appeal when the defendant clearly had the opportunity to voice an objection or provide an alternative response, yet he failed to do so. In Groschang, the jury asked to examine the Physician's Desk Reference (PDR) referred to by one of the witnesses at trial. After conferring with Groschang and the lawyers, the court sent the jury the sections of the PDR referred to in the testimony. On appeal, Groschang claimed the court erroneously left out a relevant section of the PDR. The Supreme Court stated:

“The record clearly shows that Groschang participated in the proceedings and was given the opportunity on the record to voice any objections or to suggest a different response. He did not do so. The time-honored rule that an issue not presented to the trial court may not be raised for the first time on appeal, State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992), also applies to jury requests under K.S.A. 22–3420(3).” Groschang, 272 Kan. at 672.

The rule in Groschang should apply with equal force when a defendant fails to object to the manner in which the court communicates with the jury. But we recognize that the exceptions to the general rule apply here, and the Supreme Court has considered...