State v. Neal
| Decision Date | 09 August 2013 |
| Docket Number | No. 107,736.,107,736. |
| Citation | 305 P.3d 47 |
| Parties | STATE of Kansas, Appellee, v. David William NEAL, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Douglas W. McNett, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
In September 2010, David William Neal—civilly committed to the Kansas Sexual Predator Treatment Program at the Larned State Hospital—was convicted by a jury of one count of traffic in contraband in a care and treatment facility and one count of battery of a mental health employee. The evidence revealed that Neal made physical contact with an employee of the Larned State Hospital with a makeshift knife and that he possessed a tattoo gun, scissors, a pornographic DVD, and tobacco, all considered to be contraband.
At Neal's trial, the evidence was presented to the jury. After deliberating, it reached a verdict. The presiding juror submitted the verdict to the court, and the court clerk read the verdict. The court then asked, “Do either counsel wish to have the jury polled?” Both declined.
Prior to sentencing, Neal asked the court to give him credit for the time he spent at the Larned State Hospital during the pendency of the case. Neal argued that because he was civilly committed while awaiting trial, that time should count towards his sentence. The district court disagreed and imposed a controlling sentence of 43 months' imprisonment and 24 months' postrelease supervision. When sentencing Neal, the court considered his criminal history score of A.
Neal raises three arguments in this appeal. First, he challenges the district court's failure to inquire as to the accuracy of the jury's verdict. Second, Neal argues the court erred in denying him credit for the time he spent in the Kansas Sexual Predator Treatment Program at Larned State Hospital. Finally, Neal claims the court erred in imposing a greater sentence based on his criminal history score.
Neal failed to preserve the issue concerning the polling of the jury.
Neal first argues the district court committed reversible error when it failed to inquire as to the accuracy of the jury's verdict. Neal notes that under K.S.A. 22–3421, the court must inquire whether a jury's verdict is the actual verdict. Neal claims this requirement is mandatory and that the failure to comply requires reversal. For support, Neal relies on two opinions of this court: State v. Gray, 45 Kan.App.2d 522, 524–25, 249 P.3d 465,rev. denied 292 Kan. 967 (2011), overruled by State v. Cheffen, 297 Kan. ––––, Syl. ¶ 4, No. 105,384, 213 WL 3120189 (2013) and State v. Johnson, 40 Kan.App.2d 1059, 198 P.3d 769 (2008). Appellate courts exercise de novo review over issues of jury unanimity. State v. Dayhuff, 37 Kan.App.2d 779, 784, 158 P.3d 330 (2007).
Neal is correct that both Gray and Johnson seem to support his argument on the merits. However, our Supreme Court's most recent review of the jury polling issue requires us to dispose of Neal's claim on procedural grounds.
In Gray, a panel of this court determined the district court committed reversible error when it failed to follow the statutory mandate of K.S.A. 22–3421, 45 Kan.App.2d at 525. That statute provides:
In Gray's case, the court did not ask the jury (after reading its verdict) whether it was the jury's verdict. Gray did not object to the court's failure to inquire about the verdict, and both the State and Gray declined the court's invitation to have the jury polled. In reversing Gray's conviction and ordering a new trial in these circumstances, the panel reasoned the inquiry requirement of K.S.A. 22–3421 ensures a defendant's “constitutional right to a unanimous verdict” and safeguards the concept of finality with respect to the jury verdict. 45 Kan.App.2d at 524.
But Gray was recently overruled by our Supreme Court in Cheffen, 297 Kan. ––––, Syl. ¶ 4. In Cheffen, the court asked the jury if it had reached a verdict, and the jurors collectively responded in the affirmative. The verdict was then read, and the court asked the attorneys if they had any motions to offer. The attorneys responded in the negative. On appeal, Cheffen claimed for the first time that his statutory right to a unanimous jury verdict was violated because the court failed to follow the procedure set forth at K.S.A. 22–3421.
On appeal, the Kansas Supreme Court held that because Cheffen failed to challenge the district court's compliance with K.S.A. 22–3421 below and failed to make a posttrial motion asserting facts that would raise a question concerning the jury's unanimity, Cheffen failed to preserve his K.S.A. 22–3421 challenge for appellate court consideration. 2013 WL 3120189, at *6–7. In reaching this conclusion, the court rejected Cheffen's argument that the issue could be reached for the first time on appeal because (1) his challenge involved the fundamental right to a unanimous jury verdict; and (2) the issue involved a question of law that did not rely on disputed facts. 2013 WL 3120189, at *5.
The court first noted that the right to a unanimous jury verdict is not constitutional, but statutory. The court also observed the right to request a jury poll is not constitutional. 2013 WL 3120189, at * 6. Thus, the court overruled Gray—emphasizing the Gray court erroneously relied upon a defendant's “constitutional right” to a unanimous verdict to reach its result. 2013 WL 3120189, at *6–7.
The Cheffen court also noted that Gray “would ignore any preservation issues and find structural error requiring reversal without requiring evidence the defendant suffered prejudice from the error.” 2013 WL 3120189, at *7. Thus, the court rejected the argument that the jury polling challenge presented only a question of law that did not rely on disputed facts—pointing out the prejudice analysis requires factual review. The court concluded:
“We hold that the better rule is to require a party wishing to challenge the trial court's compliance with the procedures set out in K.S.A. 22–3421 for inquiring about a jury's verdict to have raised that issue first with the district court either in the form of a contemporaneous objection or posttrial motion.” 2013 WL 3120189, at *7.
See also State v. Dunlap, 46 Kan.App.2d 924, 934, 266 P.3d 1242 (2011). In Dunlap, the court held that when the district court explicitly asks the parties if they want to have the jury polled and the defendant declines the request for polling, the appellate court should not consider a challenge to the procedure for accepting the verdict for the first time on appeal based on concepts of waiver or invited error.
Here, Neal—like Cheffen—made no objection below regarding the court's compliance with K.S.A. 22–3421. And Neal made no posttrial motions on the issue. Thus, we hold Neal failed to preserve his K.S .A. 22–3421 challenge for appellate court consideration.
Credit for time served.
Neal next argues the district court erred in denying him credit for the time he spent in the Kansas Sexual Predator Treatment Program at Larned State Hospital during the pendency of this case. Neal contends the court could have placed him in jail after he made his first appearance but instead left him in the custody of Larned State Hospital. Neal claims that confinement in a mental hospital qualifies as time spent in jail, citing State v. Mackley, 220 Kan. 518, 552 P.2d 628 (1976).
Neal's argument requires us to interpret and apply the language of K.S.A. 21–4614. Statutory interpretation raises a question of law, reviewable on an unlimited basis by this court. State v. Storey, 286 Kan. 7, 9–10, 179 P.3d 1137 (2008); State v. Prebble, 37 Kan.App.2d 327, 328, 152 P.3d 1245 (2007).
The statutory basis for Neal's claim is K.S.A. 21–4614. That statute provides that in any criminal action in which a defendant is convicted and the judge sentences the defendant to confinement, the judge—in computing the sentence—shall give an allowance for the time the defendant spent incarcerated pending the disposition of the case. It is under this statute that Neal asked the court to give him credit for the time he spent civilly committed at Larned State Hospital in the Kansas Sexual Predator Treatment Program. In denying Neal's request, the district court reasoned (1) the United States Supreme Court has determined civil commitment is not punishment; and (2) Neal was being...
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