State v. Romero
| Decision Date | 13 July 2012 |
| Docket Number | No. 105,158.,105,158. |
| Citation | 281 P.3d 179 |
| Parties | STATE of Kansas, Appellee, v. Jeremy R. ROMERO, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., LEBEN and ATCHESON, JJ.
Jeremy R. Romero appeals from convictions for robbery, aggravated battery, and misdemeanor theft following a jury trial in Sedgwick County District Court. He asserts five challenges to the verdicts and resulting judgment. We find the theft conviction to be multiplicitous of the robbery conviction and, therefore, vacate it. The remaining challenges afford Romero no grounds for relief. So we affirm in all remaining respects.
Given the issues on appeal, we need not recount the facts in detail. In March 2009, Kassandra Thiele lived with her grandparents in a comparatively undeveloped area of eastern Sedgwick County. Thiele attended Butler County Community College and worked at an area nursing home. About 3 a.m. on March 20, Thiele's grandmother woke her up to say that a man had knocked on the front door and then gotten into her car parked in the driveway. Thiele typically did not lock her car there given the out-of-way location of her grandparents' home. Thiele hastily dressed, called 911, got a .22 cal. rifle, and went outside to confront the man in her car.
Thiele saw the man rummaging through her purse, which she had left in the front seat along with her car keys, some cash, and other personal property. Thiele yelled at the man and approached the car. The man started the engine and began to back the car out of the driveway. Thiele grabbed at the driver's side door, which came open and struck a deck next to the driveway. Thiele continued after the car as it backed into the road and sped off. She scratched her ankle during the incident. The injury was superficial and required no medical attention.
A Sedgwick County sheriff's deputy arrived within a few minutes. Thiele described her car and its contents and provided a physical description of the man. The car was found later that day, abandoned in a nearby neighborhood. Missing from the car were a camera, a pocket knife, a copy of Thiele's birth certificate, and a small amount of cash. A forensic officer processed the car for fingerprints and other evidence. The officer lifted two fingerprints sufficient for comparison from the exterior of the car. About 2 months later, the detective assigned to the case received a report that one of the fingerprints matched the man who found Thiele's car and contacted the authorities. He was not considered a suspect. The other print matched Romero. The detective put together a six-person photo array or lineup, including a picture of Romero, and met with Thiele on May 22, 2009. Thiele “immediately” identified Romero as the man she saw take her car. She told the detective she had never seen the man before.
Romero was arrested and ultimately charged with robbery, aggravated battery, criminal damage to property, and misdemeanor theft. Thiele testified at the preliminary hearing and during the prosecutor's direct examination identified Romero as the man who drove off in her car. On cross-examination, Romero's lawyer asked Thiele about a chance encounter she and her then-boyfriend had with a man at a convenience store on the east side of Wichita the day before her car was boosted. Thiele recalled the encountera man she did not know had leaned against her car in the parking lot, and the two of them exchanged cross words about it. At the preliminary hearing, she testified the man at the convenience store was Romero. On redirect examination, the prosecutor asked Thiele if she was “sure” that Romero was the person “that stole your car?” Thiele said, “No.” She explained that in the courtroom Romero “looks so much different” than he did at the time of the robbery about 6 months earlier. Thiele said Romero's weight and facial hair had changed but other characteristics of his face were the same.
During the jury trial, Thiele identified Romero and was rigorously cross-examined; by Romero's lawyer about her identification. He noted the lack of lighting outside her grandparents' home and that the interior dome light on the car was off throughout the robbery. In his questioning, he pointed out both that Thiele had been suddenly roused from sleep to confront the man in her car and that she didn't tell the investigating officer she had seen the man shortly before the crime—a failure of recollection on her part if the man were Romero. The lawyer also pointed out Thiele's equivocation at the preliminary hearing.
Romero testified in his own defense. He described the encounter with Thiele at the convenience store during which he leaned against her car, presumably accounting for his fingerprint on the vehicle. Romero adamantly denied knowing where Thiele lived, taking her car, or otherwise being involved in the crime in any way. Both Romero and his mother testified to his general appearance, hair length, and weight in March 2009. Their descriptions were at odds with how Thiele described the man who took her car to law enforcement officers at the time.
The jury convicted Romero of robbery, in violation of K.S.A. 21–3426; aggravated battery, in violation of K.S.A. 21–3414(a)(2)(B), for recklessly causing bodily harm to Thiele in a manner that could have resulted in great bodily harm, disfigurement, or death; and misdemeanor theft, in violation of K.S.A. 21–3701, for taking the personal property from Thiele's car. The jury acquitted him of criminal damage to property for damage to the car. At sentencing, the district court imposed a controlling term of imprisonment of 41 months on the robbery conviction, reflecting the low guideline punishment. The district court imposed a low guideline punishment of 7 months in prison on the reckless aggravated battery and 12 months in jail on the misdemeanor theft. The district court ordered all of the sentences run concurrently, granted Romero's motion for a dispositional departure, and placed Romero on probation for 36 months. Romero had spent over a year in jail awaiting trial.
Romero has timely appealed. As we indicated, he has challenged the convictions and the sentence on multiple grounds. We address them in the order Romero has presented them on appeal, adding additional facts as necessary.
Romero contends that the way the district court received the jury's verdict compromised his right to a unanimous verdict, as provided in K.S.A. 22–3421. In pertinent part, K.S.A. 22–3421 reads:
After the jury announced it had reached verdicts on the charges, the bailiff read them into the record. The district court then asked the presiding juror, “[I]s that the jury's verdict?” The presiding juror stated it was. The district court directed no additional questions to the presiding juror or to the panel as a group. The prosecutor and Romero's lawyer each expressly declined to have the jurors polled.
Romero argues that an inquiry of the presiding juror alone is inadequate to preserve his right to a unanimous verdict. Panels of this court have split on the effect of failing to comply with the procedure outlined in K.S.A. 22–3421. In State v. Gray, 45 Kan.App.2d 522, 525, 249 P.3d 465,rev. denied 292 Kan. 967 (2011), a panel held that statutory error in receiving a verdict requires vacating any conviction and granting the defendant a new trial. In that case, the district court did not inquire of the jurors collectively if the verdict was theirs or if any juror disagreed with the verdict as published. More recently, another panel held that a deviation from the procedure outlined in K.S.A. 22–3421 must materially compromise a defendant's rights to warrant substantive relief. State v. Dunlap, 46 Kan.App.2d 924, Syl. ¶ 5, 266 P .3d 1242,petition for rev. filed (December 30, 2011). A harmless error in that process will be excused, according to the Dunlap court.
For purposes of analysis, we assume, but do not decide, the district court's receipt of the verdict failed to comply with K.S.A. 22–3421. Jury unanimity in criminal cases is a statutory right rather than a fundamental constitutional right. State v. Voyles, 284 Kan. 239, 250, 160 P.3d 794 (2007) (). Nothing in the United States Constitution requires unanimous verdicts in noncapital criminal cases tried in state courts. Johnson v. Louisiana, 406 U.S. 356, 358–59.92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); 406 U.S. at 367–68 (Powell, J., concurring); see McDonald v. Chicago, 561 U.S. ––––, 130 S.Ct. 3020, 3035 n. 14, 177 L.Ed.2d 894 (2010). The Kansas Constitution does not establish such a right. See Voyles, 284 Kan. at 250–51. Any error, therefore, did not compromise a fundamental, constitutional right afforded Romero as a criminal defendant.
We agree with the reasoning of the Dunlap panel that the statutory right may be lost to waiver or invited error. Dunlap, 46 Kan.App.2d 924, Syl. ¶ 4. And we agree that a defendant who expressly declines to request a poll of the jurors invites any...
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