State v. Wynn

• Decision Date: 27 August 2021
• Docket Number: 606,121
• Parties: State of Kansas, Appellee, v. Charles Wynn, Appellant.
• Court: Kansas Court of Appeals

State of Kansas, Appellee,
v.
Charles Wynn, Appellant.

No. 121, 606

Court of Appeals of Kansas

August 27, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., HILL and CLINE, JJ.

MEMORANDUM OPINION

PER CURIAM

Charles Wynn seeks to overturn his criminal convictions by claiming the district court and prosecutor violated his supposed right to a nullifying jury, the prosecutor improperly commented on Wynn and his theory of defense, and the instructions improperly influenced the jury. Since Wynn has no right to a nullifying jury and he has not established error by the prosecutor or the court, we affirm his convictions.

FACTS

After Wynn was arrested for aggravated battery of his girlfriend, C.C., the district court issued a no contact order which prohibited Wynn from having contact with C.C. A few months later, the State filed amended charges against Wynn, which included several counts of aggravated battery, violation of a protective order, and intimidation of a victim. All the charges involved Wynn's interactions with C.C.

At trial, C.C. testified about Wynn's domestic abuse. She said he strangled her, and later punched her in the face, fracturing her orbital bone. Her friend took her to the hospital after Wynn punched her because a cut under her left eye would not stop bleeding. She also testified that Wynn choked her on another occasion. After this last incident, C.C. reported the abuse to the police because she recently learned she was pregnant. She said Wynn told her she should get an abortion, and if she failed to, he would take care of it for her.

After Wynn was arrested, he called C.C. from jail. There were 84 calls between Wynn and C.C. in total, but the State only played 9 of those calls during trial. In some of the calls, C.C. made statements relating to Wynn's abuse, such as "I'm scared of you," and "I want you to not put your fucking hands on me ever again." Wynn admitted at trial that he never denied abusing C.C. during any of the phone calls. In another call, C.C. asked Wynn, "What are they going to do to me if I tell them that I'm not going to come to court?" and Wynn advised her, "Basically the only thing I can say to you is just be unreachable." She responded, "But they know where I live." And in response, he said, "So. Just be unreachable." He told her, "I just want you to know they are going to try two or three times, right?" In a later call, he told her, "You know not to make yourself available and shit."

The jury ultimately found Wynn guilty of one count of aggravated battery, all five counts of violation of a protective order, and both counts of intimidation of a victim.

ANALYSIS

Wynn raises several claims on appeal. First, he contends the right to a jury trial set forth in section 5 of the Kansas Constitution Bill of Rights includes a right to jury nullification. He claims the district court violated this right by failing to sua sponte instruct the jury on its ability to return a verdict contrary to the law and evidence. He also claims the prosecutor violated this right in voir dire when she remarked that the jury does not decide issues of law. Next, he claims the prosecutor erred in closing argument by denigrating defense counsel, inappropriately characterizing Wynn's defense theory, and improperly commenting on Wynn's credibility. Last, he claims the court's use of the term "victim" instead of "witness" in the jury instructions on his charges of intimidation of a victim improperly influenced the jury to find him guilty of the criminal battery charges. We are unpersuaded by Wynn's arguments.

Wynn has no right to a nullifying jury.

Wynn raises this argument for the first time on appeal. He neither requested the jury instruction he now claims should have been given, nor did he object to the prosecutor's remarks. Even so, he contends we can consider his argument that his constitutional jury trial right was violated since it satisfies one of the recognized exceptions to the general rule prohibiting consideration of new issues on appeal. See State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018); State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). These exceptions include the following: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case, (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights, and (3) the district court was right for the wrong reason. State v. Harris, 311 Kan. 371, 375, 461 P.3d 48 (2020). Since Wynn's argument falls within the first exception, we will exercise our discretion to consider it.

Jury nullification is defined as the jury's "knowing and deliberate rejection of the evidence or refusal to apply the law." State v. Boothby, 310 Kan.619, 632, 448 P.3d 416 (2019) Since a jury's verdict of acquittal in a criminal case is "essentially unimpeachable and irreversible a jury can with impunity acquit a defendant in complete disregard of the applicable legal principles, the evidence, or both, thereby allowing an obviously guilty defendant to walk free" State v Stinson, No 112, 655, 2016 WL 3031216, at *3 (Kan App 2016) (unpublished opinion) (Atcheson, J, concurring). Although a jury has the incidental power to nullify, a defendant has no right to call upon the jury to exercise that power. State v. Patterson, 311 Kan. 59, 68, 455 P.3d 792 (2020) ("While a jury has '"the raw physical power" to nullify, or disregard, the law,' there is no '"right" to jury nullification.'"); Stinson, 2016 WL 3031216, at *3 ("Nullification rests on an unchecked power of the jurors, not a legal right belonging to them or to a defendant."). Indeed, the Kansas Supreme Court has specifically held it is improper to inform the jury of its power to nullify. State v. Kornelson, 311 Kan. 711, 722, 466 P.3d 892 (2020) (noting that "it is improper to tell the jury it may nullify"); State v. Boeschling, 311 Kan. 124, 129, 458 P.3d 234 (2020) (noting Kansas Supreme Court's "long-stated rule that juries cannot be instructed on nullification"); Boothby, 310 Kan. at 630 ("[J]uries have 'the raw physical power' to nullify, or disregard, the law. But . . . we have long held that an instruction telling the jury that it may nullify is legally erroneous.").

This muted treatment of the jury's ability to nullify is warranted by the diverse functions of the court and the jury, long recognized in Kansas:

"'. . . [T]he jury are the exclusive judges of the facts; but not so with the questions of law that are involved. In those cases it is the duty of the court to instruct the jury and decide for them all questions of law that properly arise in the case; and it is incumbent upon the jury to apply the law so given to the facts of the case, and conform their verdict and decision to the instructions .' (State v. Verry, 36 Kan. 416, 419, 13 P. 838 840 [1887].)" State v. McClanahan, 212 Kan 208, 210, 510 P.2d 153 (1973)

See Boothby, 310 Kan. at 630.

Wynn acknowledges the recent Kansas Supreme Court cases addressing jury nullification, but he claims their analysis is flawed. He argues that jury nullification existed in 1859 when Kansas adopted its Constitution and, because section 5 of the Kansas Constitution Bill of Rights preserved the jury trial right as it existed in 1859, Kansas' constitutional jury trial right includes the right to tell the jury of its power to nullify. Even assuming we could depart from established Kansas Supreme Court precedent, Wynn's argument still fails.

Wynn is correct that section 5 preserved the jury trial right as it historically existed at common law when Kansas adopted its Constitution. State v. Albano, 313 Kan. 638, 641, 487 P.3d 750 (2021). However, the scope of the jury trial right in section 5 "is limited to those functions traditionally performed by juries." 313 Kan. at 647. And, "in the guilt phase of criminal proceedings issues of fact historically fall within the province of the jury, but '[t]he right to have the jury determine issues of fact is in contrast to the determination of issues of law, which has always been the province of the court.'" 313 Kan. at 647; see also State v. Love, 305 Kan. 716, 735, 387 P.3d 820 (2017) (citing Kan. Terr. Stat. 1859, ch. 25, § 274 ["'That issues of law must be tried by the court.... Issues of fact arising in action, for the recovery of money, or of specific, real or personal property, shall be tried by a jury.'"]). Wynn cites several cases which recognize a jury's incidental power to nullify...