of the judgment of the Court of Appeals in an unpublished
opinion filed February 12, 2016.
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. In
Kansas, a defendant in a felony case also possesses a
statutory right to be present at every stage of the criminal
trial, except as otherwise provided by law.
rules governing the Confrontation Clause of the Sixth
Amendment to the United States Constitution established in
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004), are not applicable to a statement
made by the defendant because the point of requiring the
availability of the declarant for cross-examination is to
provide the defendant an opportunity to cast doubt on the
statement's value for truth.
a defendant is present in open court at the time an exhibit
that consists of video recordings of defendant's
interrogation by law enforcement officers is offered and
admitted into evidence; the defense has stated in open court
that it had no objection to the content of the exhibit; and
the defense counsel declared that it intended to use the
exhibit's content to cross-examine the interrogating
detectives, the district court's providing the exhibit to
the jury during deliberations without first publishing the
entire recording in open court does not violate the
defendant's right to be present at all critical stages of
the foundation for an exhibit that consists of video
recordings of defendant's interrogation by law
enforcement officers is established in open court; the
exhibit is offered and admitted in open court; the defense
advises in open court that it has no objection to the content
of the exhibit; a portion of the audio content of the exhibit
is played to the jury in open court; the defense does not
attempt to supplement the publication of the video recording
in open court; and the defense is provided the opportunity to
use any or all of the exhibit's content to cross-examine
the State's witnesses in open court, the defendant's
right to a public trial has not been violated when the
exhibit is provided to the jury to view during deliberations
without first publishing the entire recording in open court.
use of a person's prior convictions to enhance his or her
sentence in the current case, without having proved those
convictions to a jury beyond a reasonable doubt, does not
violate the Sixth Amendment to the United States
from Wyandotte District Court; Wesley K. Griffin, judge.
Judgment of the Court of Appeals affirming the district court
is affirmed. Judgment of the district court is affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office,
argued the cause and was on the brief for appellant.
Zipf-Sigler, assistant district attorney, argued the cause,
and Sheryl L. Lidtke, chief deputy district attorney, Jerome
A. Gorman, district attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
convicted Henry Sullivan of multiple counts of rape and
aggravated criminal sodomy, together with one count of
aggravated robbery, arising out of separate attacks on three
different women, occurring between 2008 and 2010. During the
consolidated trial, the State offered, and the district court
admitted, DVDs containing approximately six hours of law
enforcement's video recording of Sullivan in the
interrogation room. The DVDs were not played for the jury in
open court, but the jury was permitted to take the exhibits
into the jury room during deliberations. Sullivan appealed,
claiming that the district court's handling of law
enforcement's video recording violated his constitutional
and statutory rights to be present at all critical stages of
his trial and violated his constitutional right to a public
trial with an impartial judge. He also claimed that the
district court unconstitutionally considered his prior
convictions to enhance his sentence. The Court of Appeals
affirmed his convictions and sentence, finding no reversible
constitutional or statutory violations. State v.
Sullivan, No. 112, 638, 2016 WL 563000 (Kan. App. 2016)
(unpublished opinion). We granted Sullivan's petition for
review. We reach the same result as the Court of Appeals.
and Procedural Overview
the procedural nature of Sullivan's appellate claims, we
do not need to recite a detailed description of his criminal
acts. Generally, he accosted T.H. as she was walking in the
early morning hours of June 13, 2008, and forced her behind a
building, where he forcibly sodomized, raped, and robbed her.
On December 22, 2009, J.D. was walking in Kansas City on a
cold and slick afternoon, when Sullivan offered her a ride
home in his automobile. Instead of taking her home, Sullivan
parked at a secluded bridge, where he sodomized J.D. in
various ways and raped her. The following year, on December
10, 2010, S.H. was walking in the early morning hours, when
Sullivan grabbed her and pulled her behind a store. There, he
forced her to orally sodomize him before he raped her.
assault kits were performed on all three women that produced
DNA profiles of an unknown male. The data was entered into
CODIS, a combined DNA indexing system. A match was not
discovered until October 2011, when the DNA from S.H.'s
sexual assault kit was linked to Sullivan. Detective Michael
Lucas was assigned to investigate, and he obtained an oral
swab from Sullivan for DNA comparison.
January 2012, two more CODIS hits pointed to Sullivan as a
suspect in the T.H. and J.D. sexual assaults. Both of those
victims picked Sullivan out of a photographic lineup as their
assailant. DNA from Sullivan's oral swab matched the DNA
found on the victims in all three cases.
was arrested in the late morning of February 2, 2012, and
transported to the Kansas City detective bureau, where he was
left in Detective Lucas' custody. Detective Danon Vaughn
assisted Detective Lucas in interviewing Sullivan. Sullivan
signed an advice of rights form at 1:23 p.m. At various
times, the detectives employed both audio and video
recordings. Sullivan's first audio recorded statement
started at 2:37 p.m.
the audio recording began, Captain William Howard texted
Detective Vaughn and instructed him to begin a video
recording, which appears to have begun roughly 12 minutes
into the audio recording. The video recording then runs
continuously for several hours, including the periods during
which Sullivan was alone in the interrogation room, ending
when a uniformed officer pats down Sullivan and handcuffs
the first audio recording, Sullivan admitted to sexual
contact with each of the three victims but claimed the
contact was consensual. During a second audio-recorded
statement, commenced after Sullivan had been further
interrogated, Sullivan's version of events was more
incriminating, especially with respect to the incidents
involving T.H. and S.H. Then, toward the end of the second
audio-recorded statement, Sullivan indicated that he needed
help because he did not always make the best decisions.
trial, the State admitted the two audio-recorded statements
into evidence and played them for the jury in open court.
Sullivan requested to be excused from the courtroom during
the playing of those statements. Upon obtaining a waiver of
the right to be present during all critical stages of the
proceedings from both Sullivan and his attorney, the trial
court granted the request; Sullivan was not present in open
court when the audio-recorded statements were played for the
questioning one of the detectives, the prosecutor proffered
the DVDs containing the entire video recording of
Sullivan's time in the interrogation room from and after
Captain Howard's directive to start the video. The
following colloquy occurred:
"MS. LIDTKE [THE PROSECUTOR]: All right. Judge, I'd
move to admit Exhibit 40.
"MS. MCBRATNEY [DEFENSE COUNSEL]: Can we approach,
"THE COURT: Yes. (Thereupon, the following proceedings
were had at the bench by court and counsel out of the ...