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State v. Robinson

Supreme Court of Kansas

August 11, 2017

State of Kansas, Appellee,
v.
Jason Robinson, Appellant.

         SYLLABUS

         Defendant who alleged that his statutory speedy trial rights were violated and that cumulative error deprived him of a fair trial is not entitled to reversal of his convictions because his statutory speedy trial rights were not violated; the State presented sufficient evidence of aggravated burglary; the jury instructions were proper; and any error was harmless beyond a reasonable doubt.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed February 13, 2015. Appeal from Wyandotte District Court; Thomas L. Boeding, judge.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and Ashley R. Iverson, legal intern, was with him on the brief for appellant.

          Christopher L. Schneider, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

          OPINION

          STEGALL, J.

         On August 24, 2010, an argument between Jason Robinson and his girlfriend, L.C., at her home escalated into violence. The parties presented conflicting accounts at trial-L.C. testified that Robinson kicked in the door and struck her in the face. Robinson claimed that L.C. broke the door and he acted in self-defense. The State presented substantial evidence of abuse, as well as corroborating testimony from a responding officer and the treating physician. However, L.C. recanted some statements she made to law enforcement. Ultimately, the jury convicted Robinson of aggravated burglary, aggravated battery, and criminal damage to property.

         On appeal, Robinson claims that seven errors-arising from all stages of the trial-warrant reversal either standing alone or cumulatively. However, we conclude that Robinson's statutory speedy trial rights were not violated; the State presented sufficient evidence of aggravated burglary; and the "bodily harm" jury instruction was not erroneous. Though the district court failed to give a K.S.A. 60-455 limiting instruction and issued written responses to the deliberating jury's questions, these errors were harmless. Robinson's remaining challenges are unpreserved. Finding no cumulative error, we affirm Robinson's convictions.

         Factual and Procedural Background

         Between February and August 2010, Robinson lived intermittently with his girlfriend, L.C., and their children. On August 24, 2010, Robinson and L.C. had an argument, and Robinson left the house. The accounts given of the ensuing violence were very different. L.C. claimed that she refused to let Robinson back inside and pushed a couch against the door to prevent his entry, to no avail. Robinson kicked in the door and struck her in the face. Robinson, though, claimed self-defense, alleging that he went peacefully inside to pack his things when L.C. attacked him with a knife.

         When Robinson left the house, L.C. called the police. While L.C. was on the phone with the police, Robinson returned, threw bricks through the windows of her minivan, and left again. When Officer Michael Moulin arrived at the scene, he observed that L.C.'s minivan was damaged, her front door "had been kicked in, " and L.C. was "crying, angry, and hysterical." He noticed that L.C. "had a swollen right eye and blood on her nose." He also found a couch pushed up against the front door. The police offered L.C. medical treatment, but she declined.

         After the police left, L.C. noticed that her right eye kept swelling. The next day, a caseworker took L.C. to the hospital because L.C. was unable to drive herself-her windshield was broken and she could not see out of her right eye. At the hospital, emergency physician Dr. Matthew Robbinett examined L.C.'s right eye. In his deposition, Dr. Robbinett explained that L.C. sustained an orbital wall fracture and a corneal abrasion, which could cause infection or permanent double vision and require surgery. Dr. Robbinett said L.C. told him that her baby's father hit her. He recalled that the nurse's notes showed L.C. had a history of abuse and was struck with a fist or gun. He also noted that L.C. had signs of an "old infarct, " which was "probably a remote injury."

         The State charged Robinson with aggravated burglary, aggravated battery, aggravated assault, and felony criminal damage to property. Robinson waived formal arraignment at his probable cause hearing on October 28, 2010. The trial was initially set for January 10, 2011. On that date, the district court granted Robinson's request for a continuance to analyze his jail calls and rescheduled the trial for February 22, 2011.

         The week before trial, the State moved for a continuance, asserting that Dr. Robbinett-the only physician who diagnosed and treated L.C.'s eye injury-was a material witness who would be unavailable on the second trial date because he would be working on a traveling rotation in Pittsburg, Kansas, at that time. On February 17, 2011, the district court held a hearing on the motion. The State explained that the hospital system had delayed delivery of the subpoena to Dr. Robbinett; the State was unable to conduct a deposition before trial because Dr. Robbinett was already in Pittsburg on this rotation; and the State needed Dr. Robbinett to provide evidence of the bodily harm element of aggravated battery. The State assured the court that it would obtain Dr. Robbinett's schedule for the next month.

         Robinson generally objected to the continuance but did not contest Dr. Robbinett's materiality or unavailability. The district court granted the State's motion, and Dr. Robbinett was later deposed to accommodate the third and final trial date, April 25, 2011.

         On the morning of trial, the court heard motions in limine. The subject of much debate was the admissibility of Robinson's jail calls to L.C. in which he told her not to come to court. Robinson objected to admission of the jail calls, citing a lack of foundation and a violation of K.S.A. 60-455. The court ruled that the calls would be admissible if the foundation was laid "not pursuant to 60-455 but simply to show that the defendant's trying to persuade a critical witness from testifying in this case and that's the only purpose."

         Robinson also moved to redact portions of Dr. Robbinett's deposition testimony. First, Robinson argued that L.C.'s statement to Dr. Robbinett, "[M]y baby's father hit me, " was irrelevant and constituted inadmissible hearsay. Second, Robinson argued that Dr. Robbinett's references to L.C.'s "historic injuries" that he observed violated K.S.A. 60-455 because the jury could infer that Robinson caused them. The court denied both motions, concluding that the medical records were not hearsay and Dr. Robbinett's only testimony regarding a historic injury-"an old infarct, " which was "probably a remote injury"-was not prejudicial to Robinson.

         Finally, Robinson moved to dismiss the case on statutory speedy trial grounds, claiming that the State's continuance counted against the State and therefore the 90-day statutory speedy trial deadline had expired. The court disagreed, concluding that "this is a material witness continuance and so the record will speak for itself, but the motion to dismiss for a violation of speedy trial is denied."

         At trial, the State called L.C. and Officer Michael Moulin as witnesses and played Dr. Robbinett's deposition video for the jury. L.C. testified that on August 24, 2010, she and Robinson had an argument, and Robinson left the house. When Robinson returned and knocked on the door that night, she refused to let him inside. Robinson started banging on the door, and L.C. was scared. L.C. recalled that she tried to push a couch against the door to bar Robinson's entry, but he kicked in the door. When the two began to argue, Robinson beat L.C. with his fists and struck her in the face. The State entered photos into evidence that showed L.C.'s swollen eye and a large bruise on her arm.

         However, L.C. recanted certain statements she made to law enforcement. For example, L.C. first told police that Robinson choked her, pulled her hair, hit her with a stick, and put a gun to her head and said, "Bitch, I will kill you." At trial, L.C. said she lied about those details and exaggerated her story to the police because she was mad at Robinson. L.C. also testified that she never told the doctor that her baby's father hit her- even though Dr. Robbinett stated otherwise in his deposition.

         Defense counsel asked L.C. if she ever told the State that she lied to the police. L.C. responded that yes, she did, but the State did not believe her. L.C. explained that her kids were removed from her home after she made her original police report. She claimed that someone from the "DA's office" said the State would use L.C.'s original story and threatened that L.C.'s kids would not return home and L.C. could get "locked up." L.C. admitted that she had a battery conviction against Robinson and previously had threatened him with a knife. She testified that she went to get a knife that night when Robinson was hitting her.

         Before playing Dr. Robbinett's deposition video for the jury, the court asked defense counsel whether he wished to put anything on the record, but he proffered nothing. Defense counsel also lodged no contemporaneous objections while the deposition video was played. However, when the deposition was taken, the defense objected on hearsay grounds to Dr. Robbinett's statement that L.C. told him, "My baby's father hit me."

         After the State rested, the defense moved for a judgment of acquittal. The court granted the motion for the aggravated assault count, reduced the criminal damage count to a misdemeanor, and denied the motion for the remaining counts.

         The defense called Robinson as its only witness. Robinson testified that on August 24, 2010, he got into an argument with L.C. and left the house for a few hours. When he returned home, L.C. was angry and started hitting him. Robinson explained that he tried to pack up his things, but L.C. threatened him with a knife. He managed to lock L.C. outside, but she broke in the door. However, Robinson later testified that the door was broken the week before.

         Robinson said he was scared because L.C. had attacked him with a knife before. He testified that when L.C. got back into the house, she charged at him with the knife again. He claimed that he threw a bag at L.C. to dislodge the knife, and she "got the bruise on her arm from me hitting and pulling her arm trying to get the knife out of her hand." He recounted that he escaped by tossing L.C. over the couch and running out the door. Robinson showed the jury a scar on his back, claiming he incurred scratches from the fight but did not seek medical attention.

         The State asked Robinson, "[D]id you ever contact [L.C.] and tell her not to come to court?" Defense counsel objected that the State was soliciting evidence of other bad acts. The court overruled the objection, stating that "this all goes to credibility of the defendant as a witness." However, defense counsel did not request a limiting instruction, and the court did not give one.

         Robinson responded that he told L.C. not to come to court because people were threatening her. With this admission, the State did not enter the jail calls into evidence. Robinson further admitted that he threw bricks through L.C.'s car windows.

         The jury found Robinson guilty of aggravated burglary, aggravated battery (bodily harm), and misdemeanor criminal damage to property. The district court sentenced Robinson to a total of 114 months' imprisonment. The Court of Appeals affirmed, holding the trial court erred when it provided written answers to the jury's deliberation questions and failed to give a limiting instruction concerning Robinson's testimony that he told L.C. not to come to court, but such errors were harmless. State v. Robinson, No. 110, 040, 2015 WL 770167, at *14-15 (Kan. App. 2015) (unpublished opinion). We granted Robinson's petition for review.

         Analysis 1. Robinson's statutory speedy trial rights were not violated.

         Robinson contends that his statutory speedy trial rights were violated because the district court erroneously granted the State a continuance for Dr. Robbinett as an unavailable material witness under K.S.A. 22-3402(5)(c), which extended the State's statutory speedy trial deadline by another 90 days. Robinson does not contest that Dr. Robbinett was material to the case. Instead, he claims for the first time on appeal that the district court erred by finding Dr. Robbinett was unavailable for trial because the State demonstrated at most an inconvenience, which is insufficient to prove unavailability. Robinson argues that, were it not for this continuance-and the 90-day extension it triggered-the statutory speedy trial deadline would have expired before he was tried.

         We pause to note that, during the pendency of this appeal, the statutory speedy trial deadline was extended from 90 to 150 days. L. 2014, ch. 139, sec. 5. However, we need not resolve the question of K.S.A. 2016 Supp. 22-3402(a)'s retroactivity today. Because we find no abuse of discretion, Robinson's statutory speedy trial rights were not violated under the 90-day-let alone the 150-day-period. Therefore, for purposes of this appeal, we will assume that the 90-day deadline applies.

         We review a district court's decision to grant a continuance under K.S.A. 22-3402(5) for abuse of discretion. State v. Dobbs, 297 Kan. 1225, 1232-33, 308 P.3d 1258 (2013). "'A district court abuses its discretion if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.'" State v. Sherman, 305 Kan. 88, 119, 378 P.3d 1060 (2016) (quoting State v. Moore, 302 Kan. 685, 692, 357 P.3d 275');">357 P.3d 275 [2015]). Robinson bears the burden to establish that an abuse of discretion occurred. Dobbs, 297 Kan. at 1232-33.

         K.S.A. 22-3402 states, in relevant part:

"(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the ...

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