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State v. McCormick

May 25, 2007

STATE OF KANSAS, APPELLEE,
v.
DALE E. MCCORMICK, APPELLANT.



Appeal from Douglas District Court; MICHAEL J. MALONE, judge.

SYLLABUS BY THE COURT

1. Although the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel, the right does not extend to providing an indigent defendant with the representation of his or her choice. Therefore, the decision to grant a criminal defendant new appointed counsel depends heavily upon the circumstances presented in a given case, and the district court possesses broad discretion in determining whether to appoint new counsel.

2. An appellate court will reverse a judgment of the district court for an abuse of discretion only when no reasonable person would have adopted the view of the district court.

3. When a criminal defendant seeks the appointment of new counsel, the defendant must establish a justifiable dissatisfaction with the existing counsel, which has been narrowly interpreted to mean a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between counsel and the defendant. Not all disagreements between counsel and defendants constitute irreconcilable conflicts or lead to complete breakdowns in communication.

4. The Sixth Amendment guarantees a criminal defendant the right to self-representation. However, because the right of self-representation frequently conflicts with the right to representation by competent counsel, a court must adopt a presumption against waiver of the right to counsel, and a waiver of the right to represent oneself may be assumed by the failure to unequivocally assert the right. Once a criminal defendant clearly and unambiguously expresses a wish to proceed pro se, though, a court must allow the self-representation after obtaining a knowing and intelligent waiver of the right to counsel.

5. Waiver of the right to counsel must be knowingly and intelligently made based on the facts and circumstances of each case. Kansas courts have adopted a three-step framework to determine whether a waiver is knowing and intelligent. First, a defendant should be advised of both his or her right to counsel and right to appointment of counsel in cases of indigency. Second, the defendant must possess the intelligence and capacity to appreciate the consequences of the waiver. Third, he or she must comprehend the nature of the charges and proceedings, the range of punishments, and all facts necessary to a broad understanding of the case.

6. Generally, a search conducted without a warrant issued upon probable cause is unreasonable. The law, however, recognizes a few limited exceptions, including inventory searches. Inventory searches are considered reasonable because such serve three purposes: (1) the protection of the owner's property while it remains in police custody; (2) the protection of the police against claims of lost or stolen property; and (3) the protection of the police from hazardous objects contained within a criminal defendant's personal property.

7. The linchpin of an inventory search analysis, as in every Fourth Amendment question, is reasonableness. But, because the reasonableness of a search is not capable of precise definition or mechanical application, courts have adopted an approach which balances the government interest against the invasion of personal rights involved.

8. Error in the admission or exclusion of evidence in violation of a constitutional or statutory right of a party is governed by the federal constitutional harmless error rule. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that the error is harmless. Before an appellate court may declare such an error harmless, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. Where the evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless.

9. Whether a criminal defendant is entitled to an independent psychological evaluation of a victim is left to the sound discretion of the district court.

10. The right of a criminal defendant to request a victim to submit to a psychological evaluation is limited to cases in which the victim has alleged sexual abuse against the defendant. The reason for so limiting the right to a psychological evaluation of the victim is related to the nature of some sexual abuse cases, i.e., an uncorroborated allegation of sexual abuse which may have been the result of a mental condition transforming a wishful biological urge into a fantasy, or an aggressive tendency prompted by a desire for attention.

11. Where a criminal defendant challenges jury instructions for the first time on appeal, this court reviews the instructions as a whole to determine whether the offending instruction is clearly erroneous. A jury instruction is clearly erroneous only when the reviewing court is convinced of a real possibility the jury would have returned a different verdict had the erroneous instruction not been given.

12. Appellate review of allegations of prosecutorial misconduct involves a two-part analysis: a performance prong and a prejudice prong. First, the court must decide whether the alleged misconduct transgressed the permissible bounds of zealous advocacy, remaining cognizant of the wide latitude permitted prosecutors to argue reasonable inferences from the evidence adduced at trial.

13. If the prosecutor's conduct is found to have been improper, the court must then consider the prejudice, if any, to the defendant's ability to obtain a fair trial. Three factors should be considered in determining whether a defendant has been prejudiced by improper prosecutorial conduct: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors.

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

Affirmed.

Before RULON, C.J., GREENE, J. and LARSON, S.J.

Defendant Dale E. McCormick appeals his convictions for aggravated kidnapping, aggravated burglary, and aggravated intimidation of a witness or victim. The defendant challenges the district court's refusal to appoint substitute counsel; the admission of evidence seized in violation of the Fourth Amendment; the admission of prejudicial photographs; the denial of the defendant's request for a psychological evaluation of the victim; and the court's jury instructions on aggravated kidnapping and aggravated burglary. The defendant further contends the prosecution prejudiced his ability to obtain a fair trial by withholding exculpatory evidence and committing multiple instances of misconduct. We affirm.

The defendant met the victim, Yasmin Haque, in a class at Washburn University in 1997. Thereafter a friendship developed as the two interacted socially on a limited basis and studied together. The defendant attempted to pursue a romantic relationship, but the victim continually rebuffed the defendant's advances indicating she was not interested in a romantic relationship. Eventually, the victim told the defendant she no longer wished him to contact her. When the defendant continued to contact the victim she began to file police reports against the defendant.

Over the course of the next several years the defendant continued to contact the victim. At one point the defendant followed the victim home from a gas station to learn where she was currently living. Shortly thereafter the victim's daily journal was taken from her residence, and the defendant demonstrated possession of the journal by copying pages and leaving the pages on the porch of the victim's residence.

On February 7, 2003, the victim noticed the telephone box outside her residence was open. Fearing the defendant had tampered with her telephone lines, the victim called the police and the telephone company. A representative from the telephone company inspected the box but found no signs of tampering.

On February 16, 2003, at approximately 5:30 a.m., the victim was awakened by a noise which she quickly identified as the rustling of the mini-blinds in the living room. The victim grabbed the telephone by her bed and investigated the noise. Upon reaching the doorway between her bedroom and the living room the victim observed a man dressed in dark clothing and wearing a ski mask. The man appeared to be standing up after climbing through one of the living room windows.

The victim began screaming and tried to call the police, but she was unable to get a dial tone. The defendant then pulled off the ski mask and said, "Yas, it's me. It's me." The victim continued to scream until the defendant crossed the room and covered her mouth. Because the defendant was wearing gloves, the victim began to have difficulty breathing and she began to fight the defendant. The defendant grabbed the victim's wrists, overpowered her, and pushed her onto the bed. During the struggle the victim continued to try to call the police until the defendant forcibly removed the telephone from her. The defendant straddled the victim and kept her pinned to the bed. The defendant took his hand away from the victim's mouth when she agreed to stop screaming.

The defendant asked the victim why she had made false reports to the police and why she had written certain things in her journal. According to the victim the defendant said he planned to kill himself, and the victim worried that he might kill her first.

Because the victim appeared distraught the defendant offered to comfort the victim but the victim replied, "Excuse me. You fucking broke into my house." The defendant then stated the victim had called him, and the victim screamed at the defendant, "What? I didn't call you, you fucking psychopath. I never called you." As the defendant again covered the victim's mouth she again struggled unsuccessfully to break free from the defendant.

After the victim stopped struggling and after she repeatedly commanded the defendant to get off her bed, the defendant stood and allowed the victim to stand, although he blocked the doorway out of the bedroom. The victim moved to the bedroom window and began looking out the window. The defendant then asked, "What are you waiting for? They're not coming." The victim assumed the defendant was speaking of the police. When the victim attempted to raise the mini-blinds the defendant prevented her; when she attempted to open the blinds he tried to pull her hand away from the wand, which came off in the victim's hand. Using the wand the victim began to hit the defendant on the neck, shoulders, and head until the defendant took the wand away from her.

Eventually, the victim insisted the defendant allow her to use the bathroom. The defendant initially refused to allow the victim to shut the door but finally relented. The victim did not believe she could escape out the bathroom window because there was no lock on the bathroom door. When the victim emerged from the bathroom, the defendant stood only a few feet from the bathroom door. The defendant told the victim he could not live without his wife. When the victim replied that she was not his wife the defendant told her she was supposed to be his wife. When the defendant asked the victim to look him in the eye and tell him there was never a chance of them getting married the victim complied but the defendant refused to believe her.

After talking further the defendant pleaded, "Yas I fell in love with you. I can't close my heart to you now." However, when the victim did not respond, the defendant begged her not to call the police and promised to leave her alone in exchange for her promise not to report the incident to the police. When the victim told the defendant she would think about it the defendant decided to leave.

As soon as the defendant left, the victim went to the kitchen to try another phone. As she did so, the defendant reappeared at the open window and commented, "Oh, the window's still open." The defendant then shut the window and replaced the storm screen. After ascertaining the kitchen phone also was not working the victim ran to a neighbor's house and asked to call the police.

The police arrived shortly after the victim called, and the victim left the neighbor's house to speak with the officers. As the victim reported the incident, the officers immediately relayed the information to dispatch and other officers were directed to the defendant's residence. The officers eventually took the victim to the law enforcement center to record her statement and then escorted her to the hospital for a physical examination. The examination noted only some bruising and swelling of the wrists which occurred when the defendant held and pinned the victim. However, the victim suffered a cut lip and some bruising on her legs which were not immediately apparent to the nurse examiner.

Receiving the name and description of the defendant from dispatch, Officers Monroe and Kelly drove to the defendant's residence. Seeing the defendant emerge from the back yard of his residence, the officers approached the defendant who immediately stated, "She called you guys, didn't she?" Officer Kelly informed the defendant the officers needed to question him about an alleged trespassing incident and handcuffed the defendant. Meanwhile, Officer Monroe noticed a backpack near the defendant and placed it in the patrol car without searching the contents. The defendant was arrested, given his Miranda warnings, and transported to jail.

In conducting a routine pat down of the defendant before booking him, jail personnel discovered a ball gag in the defendant's right pants pocket and some keys. When the gag was discovered, the defendant voluntarily commented, "Some of us are into that kinky stuff, you know." The backpack was taken to the law enforcement center and inventoried as the personal property of the defendant. From the victim's account, the officers knew the defendant had been carrying the backpack when he entered the victim's residence.

The backpack contained a length of cotton rope, a wooden paddle with black tape wrapped around the handle, a homemade leather whip, a carton of Camel Light cigarettes, two cigarette lighters, a green journal notebook that the victim identified as the one taken from her residence, a yellow flashlight, a leatherman's tool, an 8-millimeter camcorder cassette, a padlock with its key, a hand-held socket ratchet with the 3/8" socket attached, a socket holder completely filled except the 3/8" socket, a choke chain, a yellow Phillips-head screwdriver, a package containing several items including a pen, some matches, $.36, and an empty tic-tac box, a loose camcorder battery, three condoms, loose cash amounting to $11, a checkbook with checks listing Dale McCormick as the account holder and seven $20 bills, a Dillard's charge card, and a camcorder.

A search warrant was obtained and executed on the defendant's residence. The return on the warrant indicated the officers seized floppy disks, VHS tapes, 8 millimeter camcorder cassettes, photographs, a black stocking hat, an envelope with the defendant's name and address, writable compact discs, micro-recorder audio cassettes, standard audio cassettes, an Apple ...


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