State v. Ward

• Citation: 292 Kan. 541,256 P.3d 801
• Decision Date: 29 July 2011
• Docket Number: No. 99,549.,99,549.
• Parties: STATE of Kansas, Appellee,v.Yvonne WARD, Appellant.
• Court: United States State Supreme Court of Kansas

292 Kan. 541

256 P.3d 801

STATE of Kansas, Appellee,

v.Yvonne WARD, Appellant.

No. 99,549.

Supreme Court of Kansas.

July 29, 2011.

[256 P.3d 804 , 292 Kan. 541]

Syllabus by the Court

1. K.S.A. 22–3423(1)(c) permits a trial court to declare a mistrial because of prejudicial conduct, in or outside the courtroom, which makes it impossible to proceed with the trial without injustice to the defendant or the prosecution. Applying the statute, a trial court must engage in a two-step analysis. First, the trial court must decide if there is some fundamental failure of the proceeding. If so, in the second step of the analysis, the trial court must assess whether it is possible to continue the trial without an injustice. This means that if there is prejudicial conduct, the trial court must determine if the damaging effect can be removed or mitigated by admonition or instruction to the jury. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial.

2. On appeal, the trial court's decision denying a motion for mistrial is reviewed under an abuse of discretion standard.

3. Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.

4. On appeal, the rubric for analysis of whether the trial court abused its discretion in deciding if there was a fundamental failure in the proceeding varies with the nature of the alleged misconduct, such as whether the allegation is based on the actions of a witness, the actions of a bystander, prosecutorial misconduct, or evidentiary error.

5. To determine whether an error makes it impossible to proceed with the trial without injustice, a court must assess whether the fundamental failure affected a party's substantial rights under Kansas' harmless error statutes, K.S.A. 60–261 and K.S.A. 60–2105 if a right guaranteed by the United States Constitution is not implicated or else under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), if such a constitutional right is implicated.

6. Under the harmless error standards of K.S.A. 60–261, K.S.A. 60–2105, and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), the test is whether the error affected substantial rights, meaning whether the error affected the outcome of the trial. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether the error infringes upon a right guaranteed by the United States Constitution. If it does not, the trial court should apply K.S.A. 60–261 and determine if there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record. If the fundamental failure infringes upon a right guaranteed by the United States Constitution, the trial court should apply the constitutional harmless error standard defined in Chapman in which case the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict. An appellate court will use the same analysis, applying K.S.A. 60–261 and K.S.A. 60–2105 or else Chapman, depending on the nature of the right allegedly affected.

7. A trial court almost always abuses its discretion to control the courtroom when it allows a defendant, witness, or nonwitness to be brought before a jury in jail clothing without an articulated justification explaining why it is necessary for the individual to wear jail clothing and does not consider giving an admonition or instruction to the jury that the jurors should not consider the clothing or the individual's incarceration.

8. Where an appellate court finds that the trial court erred in its first step of analysis on a motion for mistrial by finding there had not been a fundamental failure in the proceeding and, consequently, did not move to the second step of making a prejudice assessment, the appellate court, without benefit of the trial court's assessment, may assess whether there was an injustice. The role of the appellate court in this circumstance is to review the entire record and determine de novo if the fundamental failure in the trial was harmless. This is a role an appellate court frequently undertakes, and K.S.A. 60–261, K.S.A. 60–2105, and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), provide the tools for this assessment.

9. The right to a fair trial and the right to be presumed innocent, fundamental constitutional rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, are implicated when an individual in jail clothing is identified to a jury as an associate of a defendant. Consequently, in determining if a motion for mistrial should be granted because of the identification, the party opposing the motion must meet the standard stated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). Under this standard, error may not be declared harmless unless the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not contribute to the verdict obtained.

10. In a case that is before the Kansas Supreme Court on a granted petition for review, an issue cannot be raised for the first time before the Supreme Court. Any issue that was not presented to the Kansas Court of Appeals is deemed abandoned.

11. When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

12. The weighing of a witness' credibility is solely within the province of the jury. An appellate court does not reweigh evidence, assess the credibility of a witness, or resolve conflicting evidence.

13. A conviction of even the gravest offense may be based on circumstantial evidence.

Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, argued the cause and was on the briefs for appellant.Don L. Scott, county attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

Defendant Yvonne Ward appeals her convictions for 14 felonies related to four separate cocaine sales. She argues the trial court erred in denying her motion for mistrial, which she made after witnesses for the prosecution identified two individuals who were sitting in the courtroom and wearing orange jail jumpsuits as people who were with Ward during one or more of the sales, and she challenges the sufficiency of the evidence. A panel of the Court of Appeals affirmed, State v. Ward, No. 99,549, 2009 WL 454947 (Kan.App.2009) (unpublished opinion), and we granted review. Before us, Ward adds a new issue regarding whether the State proved that a school located within 1,000 feet of a laundromat where some of the drug sales occurred was used by a unified school district or an accredited nonpublic school. We decline to address this issue because it was not presented to or considered by the Court of Appeals and was not presented in the petition seeking review of the Court of Appeals' decision. Therefore, the issue was abandoned. Addressing the two issues considered by the Court of Appeals, we affirm the district court and the Court of Appeals, concluding the trial court did not abuse its discretion in denying the motion for mistrial and the evidence was sufficient.

In our discussion of the motion for mistrial, we focus on the standard of review because the parties' arguments and the Court of Appeals' decision reveal potential inconsistencies in our past decisions and resulting confusion regarding the application of Kansas' harmless error statutes, K.S.A. 60–261 and K.S.A. 60–2105, and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), which applies when an error implicates a right guaranteed by the United States Constitution.

Facts and Procedural Background

Ward's 14 felony convictions include two counts of the sale or delivery of cocaine within 1,000 feet of a school (K.S.A. 65–4161[d]; repealed and recodified at K.S.A. 2010 Supp. 21–36a05(a), (c); see L. 2009, ch. 32, secs. 5, 64); two counts of conspiracy to commit the sale or delivery of cocaine within 1,000 feet of a school ( K.S.A. 65–4161 [d]; K.S.A. 21–3302); two counts of the sale or delivery of cocaine (K.S.A.65–4161); four counts of possession of cocaine without a drug tax stamp (K.S.A.79–5204); and four counts of the unlawful use of a communication facility to arrange a drug transaction (K.S.A.65–4141); repealed and recodified in 2009 at K.S.A. 2010 Supp. 21–36a07.

All of the counts arose when Ward allegedly sold crack cocaine to Candy Stinnett, who agreed to cooperate with Detective Jared Wagenseller of the Seward County Sheriff's Office. Stinnett's cooperation resulted in her buying crack cocaine from Ward during controlled buys that occurred on January 11, January 25, January 31, and...