State v. Moyer, No. 105,183

CourtUnited States State Supreme Court of Kansas
Writing for the CourtJOHNSON, J.
PartiesSTATE OF KANSAS, Appellee, v. STEVE KELLY MOYER, Appellant.
Decision Date17 May 2017
Docket NumberNo. 105,183

STATE OF KANSAS, Appellee,
v.
STEVE KELLY MOYER, Appellant.

No. 105,183

SUPREME COURT OF THE STATE OF KANSAS

May 17, 2017


MODIFIED OPINION1

SYLLABUS BY THE COURT

1.

Where there is a compelling reason to do so, the district court has the discretion to order a victim in a sex crime case to submit to an independent physical examination.

2.

In exercising the discretion to order a victim in a sex crime case to submit to an independent physical examination, the court should consider seven factors, to-wit: (1) the victim's age; (2) the remoteness in time of the alleged criminal incident to the proposed examination; (3) the degree of intrusiveness and humiliation associated with the procedure; (4) the potentially debilitating physical and emotional effects of such examination; (5) the probative value of the examination to the issue before the court;

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(6) the evidence already available for the defendant's use; and (7) any other relevant considerations.

3.

An appellate court reviews a district court's denial of a motion for an independent physical examination for an abuse of discretion, and the defendant bears the burden of establishing that the trial court abused its discretion.

4.

Judicial discretion is abused when the judge's action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.

5.

A trial court may declare a mistrial if there was prejudicial conduct either inside or outside the courtroom that makes it impossible for the trial to proceed without injustice to either the defendant or the prosecution. The determination of whether to order a mistrial is a two-step process: the trial court must first determine if there was some fundamental failure of the proceeding; and, if so, the trial court must assess whether it is possible to continue the trial without an injustice. A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard.

6.

A jury unanimity issue arises where the jurors have heard evidence that the defendant committed multiple acts, any one of which could support a conviction on a single count in the charging document, because a jury must be unanimous as to the particular act that is the basis for a conviction. A trial error occurs where evidence of multiple acts is presented to the jury, unless the State has elected and informed the jury of the specific act upon which it is to rely, or unless the district court has given a unanimity

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instruction telling the jury it must agree on the specific act that constitutes the crime in each charge.

7.

In a multiple acts case, a prosecutor's opening statement and closing argument, together with utilizing specific dates in the jury instruction, may act as the functional equivalent of an election by the State of the specific act upon which the jury is to rely to convict the defendant on a single count.

8.

Under the version of K.S.A. 60-455 applicable at the trial in this sexual abuse case, propensity evidence was admissible as long as it was relevant and probative. Where propensity evidence is admissible in a sexual abuse case, the giving of a limiting instruction that restricts the jury's consideration of prior crimes or civil wrongs evidence to specific material facts, other than propensity, does not create reversible error, even if some of the listed material facts are inapplicable under the facts of the case.

9.

Kansas law provides at least three possible bases for litigants to seek recusal of a trial judge: (1) the Kansas Code of Judicial Conduct; (2) statutory provisions, i.e., K.S.A. 20-311d(c); and (3) the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The constitutional basis is the floor, or minimum protection, afforded to litigants against a judge's bias or prejudice.

10.

Under the statutory procedure, after a judge has denied a motion for recusal, an affidavit setting forth the statutory reasons for recusal is required to be filed with the

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chief judge of the judicial district in which the proceeding is being litigated. The failure to file the requisite affidavit can preclude appellate review of a judge's refusal to recuse.

11.

Under Canon 2, Rule 2.11(A)(2)(d) (2014 Kan. Ct. R. Annot. 767) of the Kansas Code of Judicial Conduct, a judge is required to recuse from a case where the judge knows that a family member within the third degree of relationship is likely to be a material witness in the proceeding. But where the judge's relative was not a witness and the jury was not informed of the relative's involvement in the case, the defendant's right to a fair trial was not abridged by the judge's refusal to recuse.

12.

When the district court conducts a hearing on a defendant's pro se motion for the appointment of substitute counsel at which the defendant is given a meaningful opportunity to present evidence of his or her alleged justifiable dissatisfaction with his or her current counsel, the defendant has received all of the process to which he or she is constitutionally entitled.

13.

The Sixth Amendment to the United States Constitution guarantees that a criminal defendant shall have the right to the effective assistance of counsel, which means that the accused is entitled to competent and loyal counsel and to representation that is free from conflict of interest. The trial judge has the duty to ensure that the defendant receives his or her constitutional right to effective assistance of counsel.

14.

Where the district court in a criminal trial has been put on notice that defense counsel may have a conflict of interest that adversely affects his or her representation of

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the defendant and/or that defense counsel has provided the defendant with ineffective assistance of counsel, but the district court fails to make a record sufficient for meaningful appellate review, the appropriate remedy is to remand to the district court for further proceedings to fulfill the court's duty to ensure the defendant's Sixth Amendment rights.

Appeal from Sherman District Court; SCOTT SHOWALTER, judge. Original opinion filed October 16, 2015. Modified opinion filed May 17, 2017. Remanded with directions. Court retains jurisdiction.

Robert A. Anderson, Sr., of Robert A. Anderson Law Office, of Ellinwood, argued the cause and was on the brief for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Steve Kelly Moyer directly appeals his five convictions for sex crimes against his minor daughter, J.M. He alleges that (1) the trial court judge was required to recuse; (2) his trial counsel's conflict of interest denied him the right to a fair trial; (3) the district court denied him due process by failing to conduct a meaningful hearing on his pro se pretrial motions for new counsel; (4) the district court erred in denying his motion for an independent physical examination of J.M.; (5) a mistrial was required after the jury mistakenly viewed the unredacted version of the victim's intake interview; (6) the district court erred in failing to provide the jury with a unanimity instruction on four of the counts charged; (7) the district court provided an erroneous limiting instruction on prior crimes or civil wrongs evidence; (8) the prosecutor committed reversible misconduct in closing argument; and (9) cumulative error denied him a fair trial. As an alternative, Moyer asks this court to remand for a State v. Van

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Cleave, 239 Kan. 117, 716 P.2d 580 (1986), hearing to determine whether his trial counsel was ineffective, but only if this court holds that none of the alleged errors requires a reversal of his convictions.

As more fully set forth below, we remand the case to the district court for further proceedings to determine whether Moyer was denied his Sixth Amendment right to counsel, either because trial counsel was not constitutionally competent or was not constitutionally conflict-free.

FACTUAL AND PROCEDURAL OVERVIEW

In 1993, Moyer met his future wife, Jessica. On February 18, 1995, they had their first child, J.M. After J.M. was born, the couple married and had four more children, H.M., K.M., S.M., and D.M.

Jessica encouraged Moyer to spend more time with the couple's children because she felt Moyer was not sufficiently involved in their lives. But Jessica was not pleased when Moyer began spending time alone with J.M. behind closed doors in the master bedroom, to the exclusion of the younger children. When J.M. was about 11 years old, Moyer began showering with J.M., until Jessica said that she did not like that. When Jessica asked Moyer about condoms that were missing from her dresser, he responded that the children were probably playing with them.

In August of 2008, the Moyers moved from Denver to Goodland, Kansas. Moyer continued to spend more time with J.M. than the other children. When Jessica inquired about this dynamic, Moyer explained that he wanted to "finish what [he] started with [J.M.]."

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On April 5, 2009, J.M. told Jessica that Moyer had been sexually abusing her. J.M. explained that the abuse started when she was 11 years old, after she began menstruating. J.M. gave Jessica several items as evidence of the sexual relationship: two used condoms that J.M. secretly kept from sexual encounters with Moyer in Denver, a recording of a sexual encounter between J.M. and Moyer that occurred in the shed outside of the family's Goodland home, a rag that J.M. used to clean herself after the sexual encounters in Goodland, and a notebook containing an agreement between J.M. and Moyer enumerating a points system Moyer designed detailing the number of points J.M. must obtain in order to complete the sexual relationship with Moyer.

The next day, after Moyer went to work, Jessica and J.M. went to the sheriff's office to report Moyer's abuse. One of the officers set up an intake...

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