Appeal from Saline District Court; DAN D. BOYER and PATRICK H. THOMPSON, judges.
SYLLABUS BY THE COURT 1. Whether a defendant will be denied a fair trial because the jury is improperly influenced by the presence of a comfort person with a child-victim witness is a decision left to the sound discretion of the trial judge, the exercise of which will not be disturbed unless it appears that prejudice resulted. 2. An appellate court reviews an instruction to which a party did not object under a clearly erroneous standard, which requires the appellate court to determine whether it is firmly convinced that the jury would have reached a different verdict if the instruction error had not occurred. 3. An Allen-type instruction in which the jury is told another trial would be a burden on both sides is erroneous, but there is no reversible error when the defendant fails to object at trial and the evidence against the defendant is overwhelming. 4. Appellate courts review the grant of a sentencing departure motion for an abuse of discretion. A single mitigating factor alone can constitute a substantial and compelling reason for departure from the statutorily mandated hard 25 life imprisonment sentence under Jessica's Law, K.S.A. 21-4643.
The opinion of the court was delivered by: Rosen, J.:
The opinion of the court was delivered by ROSEN, J.
In this direct appeal we consider what findings, if any, a district court must make before permitting-or declining to permit-a comfort or support person to accompany a child victim witness on the stand at trial. Samuel Rochelle contends the district court erred when it allowed a 6-year-old child to testify against him with her school counselor sitting next to her without the court first making findings that the procedure was necessary. Rochelle argues this seating arrangement improperly influenced the jury and denied him a fair trial.
We hold that whether a comfort person may accompany a witness is a discretionary decision left to the district court, which has the power to regulate the presentation of evidence during trial. While a district court is not required to make a finding of necessity, we offer guidelines for other district courts to consider in making similar determinations. We note that both Rochelle and the State raise additional sentencing issues, both of which are governed by our prior decisions.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2007, Rochelle was charged with rape, aggravated indecent liberties with a child, aggravated indecent solicitation of a child, and two counts of aggravated criminal sodomy after his then 5-year-old niece, A.S., told her parents that Rochelle put his "pee pee" in her mouth and touched her vagina. The State filed a pretrial motion to take A.S.'s testimony by closed-circuit television due to her young age and because her therapist suggested that A.S. might be traumatized by testifying in court. Rochelle objected. At a pretrial hearing on the State's motion, the State, again citing A.S.'s young age, requested that A.S.'s school counselor be allowed to sit next to her. The State pointed out that the counselor was not a witness in the case, had no involvement in the incident, and would not assist or encourage A.S. in any way. Rochelle's attorney stated that for purposes of the pretrial hearing, he did not object.
The court permitted the school counselor to sit next to A.S. at the pretrial hearing. Satisfied with A.S.'s performance on the stand, the State withdrew its motion for closed-circuit television and agreed to take A.S's testimony in the courtroom rather than by television. At another pretrial hearing a few weeks later, the State asked the court to allow the school counselor to sit with A.S. at the jury trial because of A.S.'s age and because her parents were endorsed witnesses who could not accompany her to the stand. Defense counsel objected, arguing that based on A.S.'s satisfactory performance at the previous hearing, the child did not require that kind of support, and its use would create an artificial appearance of its necessity.
The district court held that it would permit a familiar person to sit with A.S. at trial on the condition that the person make no gestures or otherwise influence A.S. in any way. The court stated that it was permitting this arrangement because the courtroom could be especially uncomfortable for a young child. The court granted the defense counsel's request to order the State to proffer its introduction of the school counselor to the jury. The State complied and at trial told the jury it would be asked to consider only the evidence from the testimony of witnesses and admitted exhibits.
A different judge presided over the trial. During trial, the State again asked whether the school counselor could sit next to A.S. on the stand. Rochelle objected, arguing that such an arrangement had the potential to generate inappropriate sympathy for the witness. The court kept the previous order in place, subject to the requirement that the counselor would not make any motions or gestures that would convey any type of emotion to the jury relating to A.S.'s testimony. The court ordered the State to give the counselor this admonition.
A.S. testified at trial. During defense counsel's cross-examination of A.S., the counselor interjected by clarifying for counsel what A.S. was saying during an apparent misunderstanding regarding a stuffed animal she brought with her to the stand, saying:
"[School counselor]: Can I interrupt? She's describing a person named Jackson. She thinks you're talking about-she thinks that you asked her about a friend she has at school. I don't think she realizes that you're talking about-"
Defense counsel asked to approach the bench, but did not object, and A.S. continued to present her testimony. A review of the record indicates that A.S. did not have difficulty testifying about the sexual abuse; occasionally, however, she did not answer the question asked. An investigator who interviewed A.S. also testified at trial and corroborated her story.
Rochelle took the stand in his own defense and told the jury that he was left to baby-sit A.S., along with her sister and his own two sons, while his wife and A.S.'s mother went shopping. Rochelle said he looked at A.S.'s vagina when she complained that it was irritated, but said he had no sexual contact with A.S.
When the presentation of evidence concluded, the jury received an instruction based on Pattern Instructions for Kansas (PIK) Crim. 3d 68.12:
"Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the State to decide whether to resubmit the undecided charge or charges to a different jury at a later time. Another trial would be a burden on both sides."
The jury convicted Rochelle of one count of aggravated criminal sodomy and one count of aggravated indecent liberties with a child. Rochelle filed a departure motion based solely on his lack of any prior criminal convictions. The court granted Rochelle's motion, holding it could not ignore Rochelle's lack of criminal history. The court held that "after substantial thought," it would allow departure from the usual Jessica's Law life sentence with a mandatory minimum of 25 years to the sentencing guidelines and sentenced Rochelle to a total of 155 months' imprisonment for one count of aggravated criminal sodomy and 59 months' imprisonment on the count of aggravated indecent liberties, with both sentences to run consecutive for a total of 214 months. Both Rochelle ...