State v. Turley
| Decision Date | 09 October 1992 |
| Docket Number | No. 66817,66817 |
| Citation | 17 Kan.App.2d 484,840 P.2d 529 |
| Parties | STATE of Kansas, Appellee, v. Marvin E. TURLEY, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Imprisonment for commission of crimes involving firearms is mandated by K.S.A.1991 Supp. 21-4618(1) and (2), unless to do so would result in manifest injustice. K.S.A.1991 Supp. 21-4618(3).
2. A sentence which is "obviously unfair" or "shocking to the conscience" accurately and permissibly characterizes one which would result in manifest injustice.
3. Under the facts of this case, it was not manifest injustice to impose mandatory imprisonment for using a firearm during an altercation.
J. Patrick Lawless, Jr., Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.
Michael C. Hayes, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before LARSON, P.J., and LEWIS and PIERRON, JJ.
Marvin E. Turley appeals his jury conviction for one count of aggravated battery in violation of K.S.A. 21-3414, contending he was denied his Sixth Amendment rights to a fair and impartial jury and to confront witnesses when a member of the jury did not disclose during voir dire that he knew both Turley and one of the witnesses, Penny Rummel. Turley also contends the trial court erred during sentencing by ruling K.S.A.1991 Supp. 21-4618(3) was not applicable to his situation.
Turley and Rick Nott fought in September of 1990, at which time Nott stated he would get Turley every time he saw him. On December 12, 1990, Turley again became involved in an altercation with Nott outside Richard's Tavern in Holton. As Nott and a companion, who was holding a tire iron, approached Turley and his companions, Turley fired a .22 caliber handgun at Nott. Nott ran, then later determined he had been shot in the side near the back of his armpit. Turley was charged with aggravated assault and aggravated battery.
During voir dire, the State asked the jury panel whether any member knew Turley and several other individuals listed as potential witnesses, including Penny Rummel. No member of the jury panel indicated he or she knew either Turley or Rummel. The jury was selected and the case proceeded to trial.
Following the State's case in chief, the trial court dismissed the aggravated assault charge, ruling it had merged with the aggravated battery charge. After deliberation, the jury found Turley guilty of aggravated battery.
Turley moved for new trial based upon alleged juror misconduct. Turley contended presiding juror Rickland Ford knew both him and Rummel and did not provide this information during voir dire. Attached to the motion was an affidavit prepared by Rummel. Rummel stated Ford knew Turley because Ford was the son of the owner of Richard's Tavern where Turley worked as a bartender. Rummel stated Ford and Turley cleaned the Tavern. Rummel stated Ford knew her because she used to date his brother and Ford would come over to their residence and they would sit and talk.
Turley and Rummel both testified during the hearing on the motion for new trial. Rummel's testimony basically followed her affidavit. Turley testified he worked at Richard's Tavern, owned by Ford's father, and that he and Ford talked in the tavern on several different occasions while he was working or while Ford was working.
The trial court denied Turley's motion, finding the jury panel had been informed it was not a question of knowing someone, but it was a question of whether by reason of that knowledge or knowing someone the potential juror would be unable to be fair or unbiased. The trial court noted many questions were asked concerning whether a prospective juror knew or had any reason to know that he or she could not be fair in the case. The trial court stated: "It was correctly pointed out the fact that you know somebody doesn't preclude you as sitting as a juror and in that person's case or a case involving that person." The trial judge concluded Turley had not shown he was prejudiced or that Ford was biased in any way.
The trial court sentenced Turley in accordance with K.S.A.1991 Supp. 21-4618 because a firearm was used by him in the commission of the crime. The trial judge stated, "There's nothing to indicate that [K.S.A.1991 Supp. 21-4618] doesn't apply under the circumstances of this case." The trial court imposed a minimum sentence of 3 to 10 years pursuant to K.S.A. 21-4501(c).
Turley appeals. We affirm.
Was Turley denied his Sixth Amendment rights to a fair and impartial jury and to confront witnesses when a member of the jury did not disclose during voir dire that he knew both Turley and Rummel?
Turley contends he is entitled to a new trial based upon Ford's misconduct during voir dire in failing to reveal that he knew both Turley and Rummel when asked by the State. Turley argues that Ford knew him and Rummel was a material fact under K.S.A. 22-3413, cast a doubt on whether Ford could act impartially, and under K.S.A. 22-3410(2)(i) rendered Ford unfit to serve as a juror. Turley asserts Ford was in a position to know the background of this case, including having an intimate knowledge of the parties, and the sharing of this information during deliberations unduly influenced the other jurors and denied him his Sixth Amendment right to confront the witnesses against him. Turley argues Ford's response to the question asking if Ford knew him or Rummel was critical to his decision whether to exercise either a peremptory challenge or a challenge for cause against Ford.
K.S.A. 22-3501(1) provides that on a motion the trial court may grant a new trial to a defendant if required in the interest of justice. In State v. Brown, 249 Kan. 698, Syl. p 1, 823 P.2d 190 (1991), our Supreme Court stated: "The granting of a new trial is a matter of trial court discretion and, as with all discretionary matters, will not be disturbed on appeal except by a showing of abuse of that discretion."
249 Kan. 698, Syl. p 10.
K.S.A. 22-3423(1)(e) provides that a trial court may order a mistrial at any time it finds termination necessary because "[f]alse statements of a juror on voir dire prevent a fair trial." K.S.A. 22-3413 states: "If a juror has personal knowledge of any fact material to the case, he must inform the court and shall not speak of such fact to other jurors out of court." K.S.A. 22-3410(2)(i) provides that a prospective juror may be challenged for cause if: "His state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party."
Basically, the purpose of voir dire examination is to enable parties to select jurors competent to judge and determine facts in issue without bias, prejudice, or partiality. State v. Guffey, 205 Kan. 9, 13, 468 P.2d 254 (1970). Arguably, if Ford did know both Turley and Rummel, his failure to disclose this knowledge when asked by the State during voir dire amounts to misconduct. However, State v. Cady, 248 Kan. 743, 756, 811 P.2d 1130 (1991).
In the instant case, there has been no evidence offered to show that Ford's acquaintance with Turley and Rummel prevented a fair trial, other than the general allegation by Turley. Nothing in the record indicates prejudicial misconduct by Ford. The record does not support Turley's allegation that Ford used his knowledge of the parties or the background of the case during deliberations, or that Ford influenced the other 11 jurors.
Although it was not argued, Turley knew Ford and it may be assumed that he believed this to be to his advantage. A litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal. State v. Prouse, 244 Kan. 292, 298-99, 767 P.2d 1308 (1989). Turley never objected to Ford serving as a juror until after the unfavorable jury verdict.
The trial court did not abuse its discretion in finding Turley had failed to show substantial prejudice to his rights and in denying Turley's motion for new trial. Reasonable persons could agree with the trial court.
Did the trial court err during sentencing by ruling K.S.A.1991 Supp. 21-4618(3) did not apply?
K.S.A.1991 Supp. 21-4618 provides:
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