Appeal from Wyandotte district court; R. WAYNE LAMPSON, judge.
1. The substitution of an alternate for a juror who is ill, incapacitated, or affected by personal reasons is within the prerogative of the district court, and appellate court review of such a substitution is for an abuse of discretion. However, the same deference will not be accorded to a district court's decision to substitute which is based on a juror's belief concerning the outcome of the case.
2. A defendant has a constitutional right to be present during critical stages of a criminal proceeding. A conference between the trial judge and a juror during the time the jury is deliberating is a critical stage of the criminal proceeding. However, the harmless error rule applies to an ex parte conference between the trial judge and a juror, requiring a determination of whether the denial of the defendant's right to be present prejudiced the defendant's right to a fair trial.
3. The presentation to the jury of an unavailable witness' prior testimony by having one prosecutor read the questions from the transcript and another prosecutor read the transcribed responses from the witness stand does not, standing alone, deny the defendant the right to a fair trial.
4. The agreement element of a conspiracy charge need not always be proved by direct evidence. The jury's finding of an agreement may be supported by circumstantial evidence.
5. Instructing the jury that it must presume that the defendant is not guilty "until" it is convinced from the evidence that he or she is guilty does not impermissibly mislead the jury and is not clearly erroneous, albeit the instruction would be improved by substituting the word "unless" for the word "until."
6. The test to determine whether cumulative trial errors require reversal is whether the totality of circumstances substantially prejudiced the defendant and denied him or her a fair trial. However, the cumulative error analysis is unnecessary where the reviewing court has not found multiple errors.
7. At the time a sentencing court assesses fees to reimburse the Board of Indigents' Defense Services under K.S.A. 2006 Supp. 22-4513, it must consider on the record the defendant's financial resources and the nature of the burden that payment of the fees would impose upon the defendant.
The opinion of the court was delivered by: Johnson, J.
Affirmed in part, reversed in part, and remanded.
Dimitrius Keith Davis appeals his jury convictions for premeditated first-degree murder, aggravated robbery, and conspiracy to commit aggravated robbery, and the order assessing attorney fees. We affirm the convictions, but we reverse and remand on the attorney fee issue.
Davis' convictions arose from an incident in which Eric Williams was shot to death and robbed of his money. Ronnie Townsend had enlisted Davis' assistance to retrieve $450 that Williams was holding for Townsend. After some time spent trying to locate Williams, the debt collectors found him in a residence. Townsend and Davis, armed with a handgun, entered the house, while others remained in a vehicle. According to Townsend, when Williams was not forthcoming with the money, Davis shot Williams in the top of the head and took the money in his possession. Williams died from the gunshot wound.
Townsend testified against Davis at a preliminary hearing. However, at Davis' trial, Townsend invoked his Fifth Amendment rights, and the district court declared him to be an unavailable witness. The State presented Townsend's preliminary hearing testimony by having one prosecutor read the questions and another prosecutor read Townsend's responses from the witness stand.
Apparently, during voir dire, one of the prospective jurors advised the court and counsel that she had a personal conflict if the trial lasted into Friday. Specifically, she was to pick up and pay for some dresses to be used in a wedding and transport them to Nebraska. That juror was nevertheless selected to serve, but two alternate jurors were also selected. The case was submitted to the jury on Thursday, but a decision was not reached by the end of the day. The conflicted juror then contacted the judge, who released her from the jury. The following day, Friday, the judge informed the defendant and respective counsel of the court's action. Over defense objection, an alternate was selected and, later in the day, the jury returned its guilty verdicts.
On appeal, Davis contends: (1) the district court's dismissal of the juror violated Davis' constitutional rights; (2) the district court denied Davis a fair trial by permitting a prosecutor to play the role of Townsend during the reading of the preliminary hearing transcript; (3) the State failed to prove a conspiracy to commit robbery; (4) the district court's failure to properly instruct the jury regarding the burden of proof, presumption of innocence, and reasonable doubt was clearly erroneous; (5) cumulative error denied Davis a fair trial; and (6) the district court failed to make the requisite findings prior to ordering Davis to reimburse the State Board of Indigents' Defense Services (BIDS) for attorney fees.
Davis states his issue as, "The district court violated [Davis'] rights to due process and a jury trial when it dismissed a juror without providing any of the parties an opportunity to be heard." However, commingled in his arguments are other incidentally raised questions.
Davis appears to assert two principal complaints about the procedure employed by the district court, albeit the arguments are intertwined. First, he contends that the Thursday evening ex parte communication between the juror and the judge violated his right to be present at all critical stages of the trial. Second, he argues that due process mandated that he be provided with a hearing prior to the court's dismissal of the juror. Both issues are questions of law, and "[a]n appellate court's scope of review on questions of law is unlimited." State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996); see also State v. Engelhardt, 280 Kan. 113, 121, 119 P.3d 1148 (2005).
The State avoids Davis' principal complaints, choosing to argue that the district court did not abuse its discretion in finding that the juror's personal conflict provided sufficient cause for substituting an alternate for the original juror, as permitted by K.S.A. 2006 Supp. 22-3412(c). See State v. Minski, 252 Kan. 806, 814, 850 P.2d 809 (1993); State v. Folkerts, 229 Kan. 608, 616, 629 P.2d 173, cert. denied 454 U.S. 1125 (1981) (reviewing district court's ruling to substitute a juror with an alternate for abuse of discretion). We agree that appellate courts afford the district court considerable discretion in determining whether to substitute for a juror who is "ill, incapacitated, or affected by personal reasons." State v. Cheek, 262 Kan. 91, 108, 936 P.2d 749 (1997). Such is the case here. However, we note that the same deference is not extended to substitutions that are based on a juror's belief concerning the outcome of the case. See, e.g., Cheek, 262 Kan. at 108; State v. Stafford, 255 Kan. 807, 824, 878 P.2d 820 (1994).
A defendant has a constitutional right to be present during critical stages of a criminal proceeding. That right emanates from the Sixth Amendment right to confront witnesses and from the right to due process guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution. See State v. Mann, 274 Kan. 670, 680, 56 P.3d 212 (2002); State v. Calderon, 270 Kan. 241, 245, 13 P.3d 871 (2000). Likewise, in Kansas, the right to be present is codified. K.S.A. 2006 Supp. 22-3405(1) ("The defendant in a felony case shall be present . . . at every stage of the trial including the impaneling of the jury and the return of the verdict.").
"It is well settled that a conference between a trial judge and a juror is a critical stage of the trial at which a criminal defendant has a constitutional right to be present. [Citations omitted.]" Mann, 274 Kan. at 682; accord State v. Lovely, 237 Kan. 838, Syl. ¶ 3, 703 P.2d 828 (1985). Thus, Davis had a right to be present when the district court had a conversation with the juror on ...