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State v. Hirsh

Court of Appeals of Kansas

September 29, 2017

State of Kansas, Appellee,
Darrin D. Hirsh, Appellant.


         1. An 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.

         2. When 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.

         3. A 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.

         4. 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.

         5. 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.

         6. 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.

         7. To 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.

         8. An 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.

         9. 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.

         10. 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.

         Appeal from Barton District Court; Ron Svaty, judge.

          Sam Schirer, of Kansas Appellate Defender Office, for appellant.

          Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

          Before Malone, P.J., Pierron and Bruns, JJ.

          MALONE, J.

         Darrin 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 judgment.

         Factual and Procedural Background

         Hirsh 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 Candice.

         On 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 left home.

         After 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.

         The 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 elaborate.

         Meanwhile, 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.

         Hirsh 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 hospital.

         After 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.

         Meanwhile, 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 sheriff's department.

         On June 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.

         At 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.

         Stephanie 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 the pillow.

         Dave 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.

         Schwartz 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 performance.

         Additional 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 demeanor.

         After 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 protective order.

         The 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 ...

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