BY THE COURT
appellate court reviews a district court's response to a
mid-deliberation jury question for an abuse of discretion. To
the extent that it is necessary to determine whether the
district court's response was a correct statement of the
law, an appellate court is presented with a legal question,
subject to unlimited review. But when looking at which
legally appropriate response the court should have made, an
appellate court accords the district court the deference of
looking to whether no reasonable person would have given the
response adopted by the district court.
a jury asks a question about the district court's
instructions, the district court must respond in some
meaningful manner or seek additional clarification or
limitation of the request.
district court's erroneous response to a jury question is
subject to harmless error analysis. The Kansas Supreme Court
has held that to find an error harmless under K.S.A. 60-261,
K.S.A. 60-2105, and the United States Constitution, a Kansas
court must be able to declare the error did not affect a
party's substantial rights, meaning it will not or did
not affect the trial's outcome. The party benefitting
from the error always bears the burden of proving it harmless
under this standard.
Multiplicity is the charging of a single offense in several
counts of a complaint or information. Multiplicity can result
in multiple punishments for the same offense, thus violating
the Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution and § 10 of the Kansas
Constitution Bill of Rights. An appellate court has unlimited
review over issues involving multiplicity as they present
questions of law.
Appellate courts employ a two-step process to evaluate claims
of prosecutorial error. First, the court must determine
whether error occurred by deciding whether the
prosecutor's actions fall outside the wide latitude
afforded prosecutors to conduct the State's case and
attempt to obtain a conviction in a manner that does not
offend the defendant's constitutional right to a fair
trial. If error has occurred, then the appellate court must
determine whether the error prejudiced the defendant's
right to a fair trial under the harmless error standard.
Generally, prosecutors cannot offer juries their personal
opinions on the credibility of witnesses because such
comments are unsworn, unchecked testimony, not commentary on
the evidence of the case.
establish a violation of a prosecutor's duty to disclose
evidence pursuant to Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the court must find
three elements: (1) The evidence at issue must be favorable
to the accused, either because it is exculpatory, or because
it is impeaching; (2) that evidence must have been suppressed
by the State, either willfully or inadvertently; and (3) the
evidence must be material so as to establish prejudice.
appellate court's review of a district court's
decision on a motion to recall a jury is limited to abuse of
discretion. A district court abuses its discretion in denying
a motion for new trial based on juror misconduct if the
defendant establishes that an act of the jury constituted
misconduct and the misconduct substantially prejudiced his or
her right to a fair trial.
Though intentionally deceptive responses or nonresponses
constitute misconduct, jurors are not required to volunteer
information that they think or suspect may be of interest to
counsel in the jury selection process.
Though any one single error may not warrant reversal of any
convictions, those errors when considered collectively may be
so serious as to merit reversal. The reversibility test for
cumulative error is whether the totality of the circumstances
substantially prejudiced the defendant and denied the
defendant a fair trial. No prejudicial error may be found
under the cumulative effect rule, however, if the evidence is
overwhelming against the defendant.
from Barton District Court; Ron Svaty, judge.
Schirer, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek
Schmidt, attorney general, for appellee.
Malone, P.J., Pierron and Bruns, JJ.
D. Hirsh appeals his convictions of one count of aggravated
assault, two counts of criminal threat, and one count of
domestic battery. Hirsh claims: (1) The district court's
response to a jury question concerning the deadly weapon used
in the aggravated assault allowed the jury to convict him of
an uncharged crime; (2) his criminal threat convictions are
multiplicitous; (3) the State improperly commented on the
victim's credibility; (4) the State committed a
Brady violation; (5) the district court erred in
refusing to recall the jury; (6) cumulative error deprived
him of a fair trial; and (7) the district court violated his
constitutional rights by making a "deadly weapon"
finding to impose violent offender registration. We agree
with Hirsh's first claim concerning the district
court's response to the jury question; thus, we reverse
his conviction of aggravated assault, vacate the sentence on
that conviction, and remand for a new trial on that charge.
However, we affirm the remainder of the district court's
and Procedural Background
and Candice Hirsh married in 1997 and settled in Great Bend,
Kansas, where Hirsh worked as a trooper for the Kansas
Highway Patrol (KHP). Candice worked as a case manager for
the Great Bend Center for Counseling and Consultation. In
2011, the Hirshes' marriage began to deteriorate as
Candice suspected that Hirsh was having an affair with a work
colleague, Ashley Martell. While Martell was in the KHP
Academy, she lived in an apartment on the Hirshes'
property, which caused frequent arguments between Hirsh and
March 12, 2013, Martell and Hirsh were in the basement of
Hirsh's house. Candice became upset and yelled at Hirsh
to get his girlfriend and his belongings and to leave the
house. Martell left, but Hirsh remained at the house. Candice
later gave the following account of what happened next.
According to Candice, Hirsh pushed her to the ground and
dragged her by her hair through their dining room. He then
choked Candice against a wall in the hallway. Eventually,
Hirsh released his hold on Candice and she went into her
son's bedroom. Hirsh entered the bedroom holding a gun,
which he pressed against Candice's head. He then placed a
pillow over her face, suffocating her all the while holding
the gun against her head. During the assault, Hirsh told
Candice that it would all be over soon. Candice asked him not
to let their children see her that way. Hirsh responded,
"[d]on't worry because they're going with
you." Hirsh abruptly left Candice in the bedroom and
Hirsh left, Candice called her friend, Stephanie Jacobs,
whose husband, Dave Jacobs, was also a trooper. Candice told
Stephanie about Hirsh's attack, but she did not mention
the gun. Stephanie urged Candice to call the police, but
Candice refused because she did not want Hirsh to get into
trouble. Stephanie then called Candice's father. When he
arrived at Candice's house, she told him that Stephanie
had misunderstood their phone conversation and that she and
Hirsh only had a verbal argument.
next day, Candice went to the Jacobs' house where she
told them more about the fight, including the fact that Hirsh
had held a gun to her head along with the pillow. Both Jacobs
observed bruising and marks on Candice's arms, back, and
neck. The Jacobs again urged Candice to tell the police, but
she refused, saying that no one would believe her. Candice
then called her work supervisor, Talaya Schwartz, and told
her that she needed a few days off work because she and Hirsh
were having marital issues. Candice told Schwartz that she
and Hirsh had a physical altercation, but she did not
Dave called his supervisor at the KHP, Lieutenant Steve
Billinger, and told Billinger that Candice had informed him
that Hirsh had held a gun to her head and threatened her
life. Billinger contacted his supervisor, who told him not to
get involved in the marital disputes of a KHP trooper and
that if domestic violence had occurred, Candice should report
it to the police. Billinger relayed this message to Dave and
made it clear that KHP would not get involved if Candice did
not want to involve local law enforcement.
returned home the next day, and Candice did not report the
incident to the police. Almost a year later, however,
Schwartz spoke to Candice about her poor work performance and
her concerns that Candice's productivity had suffered
during the past year. Eventually, Candice told Schwartz about
the incident on March 12, 2013. Schwartz urged Candice to
call the police, but Candice refused. However, Schwartz
convinced Candice to tell her parents about the incident.
While on the way to her parents' house, Candice suffered
a severe panic attack and her parents drove her to the
Candice's release from the hospital, Schwartz and
Stephanie drove Candice to the Family Crisis Center, where
Candice disclosed to Detective Sharon Wondra that Hirsh
attacked her in March 2013. The Kansas Bureau of
Investigation (KBI) was asked to investigate the case, and
Candice told a KBI agent about the incident. During the
investigation, Candice disclosed that Hirsh tried to persuade
her to recant her allegations and he contacted her a couple
of times in violation of a protective order.
Schwartz told a relative, Barton County Sheriff's Deputy
Kyle Reed, about Candice's allegations. Reed did not
report the incident to any other officer in the sheriff's
department. Eventually, Undersheriff Bruce Green learned
about Reed's involvement with the case and wrote a
misconduct report due to Reed's failure to report the
information to an on-duty deputy or the duty officer in the
27, 2014, based on the KBI investigation of the case, the
State charged Hirsh with one count of aggravated assault
committed with a deadly weapon, to-wit: a handgun, two counts
of criminal threat, one count of misdemeanor domestic
battery, two counts of misdemeanor witness intimidation, and
two counts of violating a protective order. Hirsh's jury
trial began on December 16, 2015.
trial, Candice testified and recounted Hirsh's assault on
March 12, 2013. She stated that while Hirsh was smothering
her face with a pillow and holding a gun to her head, she
accepted that she was going to die. Candice also explained
that it took her so long to report the incident to law
enforcement and that she had lied about the altercation only
being verbal because she still loved Hirsh and she did not
want to get him into trouble. She also testified that after
she disclosed the incident to Wondra, Hirsh left her a
voicemail message telling her to recant her story because his
job was at risk. Candice testified that Hirsh called again a
few days later and told her that she needed to recant.
testified next. She stated that on the night of March 12,
2013, she received a call from Candice; Candice was crying
and told her that she had a bad fight with Hirsh and she was
afraid he was going to come back to the house. Candice then
told Stephanie the fight was physical and that she thought
she was going to die. Stephanie urged Candice to call the
police, but she refused. The next morning, Candice came to
Stephanie's house. Stephanie testified that Candice had
red and purple marks around her neck and bruises on her arm.
Candice told Stephanie the injuries were from Hirsh.
Stephanie further testified that Candice then told her that
Hirsh held a gun to her head when he was smothering her with
also testified about Candice's visit to his home the
morning after the incident. He stated that Candice told him
that Hirsh "beat the hell out of" her. He further
stated that Candice told him that Hirsh had put a gun to her
head. Finally, Dave testified about Candice's injuries
and said that he observed bruising on her arms and neck and
that Candice told him Hirsh had caused the injuries. Dave
asked Candice to call the police, but she refused, telling
him that no one would believe her.
also testified. She stated that Candice came to her office
the morning after the incident and asked for time off work.
Schwartz recalled that Candice "was obviously disheveled
and upset and looked like she hadn't slept at all."
Candice told Schwartz that she and Hirsh were having issues
and there had been a physical altercation. Schwartz testified
that Candice changed after the incident and became very
distracted and distant at work. Schwartz testified that
Candice disclosed the details of the March 12, 2013 incident
when she brought her into her office to talk about her work
witnesses testified for the State about the investigation.
Hirsh did not testify at trial, but his defense was a
complete denial of Candice's allegations. Hirsh
challenged the credibility of Candice's testimony due to
inconsistencies in her statements. In particular, Hirsh
pointed to the fact that Candice did not mention that Hirsh
used a gun during the assault in some of her initial reports
about the incident. Hirsh also called several character
witnesses who testified that Hirsh had a calm and peaceful
the evidence, the State dismissed one count of violating a
protective order. During deliberations, the jury asked the
district court, "May the pillow be considered as a
deadly weapon the same as a gun?" Over Hirsh's
objection, the district court responded, "Please refer
to the jury instructions." The jury found Hirsh guilty
of aggravated assault, two counts of criminal threat, and
domestic battery; he was acquitted of both counts of witness
intimidation and the remaining count of violating a
district court held a sentencing hearing on May 9, 2016.
After finding that Hirsh had no prior criminal history, the
district court imposed a standard presumptive sentence of 12
months' imprisonment on the aggravated assault conviction
and concurrent sentences of 6 months' imprisonment on
each conviction of criminal threat. The district court
imposed a consecutive 6-month jail sentence for the
misdemeanor domestic battery conviction but granted probation
for 18 months. The district court also found that Hirsh used
a deadly weapon, specifically a handgun, in the commission of
the aggravated ...