State v. Hormell

1

State of Kansas, Appellee, v. Michael Alexander Hormell, Appellant.

No. 124,252

Court of Appeals of Kansas

June 9, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Douglas District Court; AMY J. HANLEY, judge.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Brian Deiter, assistant district attorney, Suzanne Valdez, district attorney, and Derek Schmidt, attorney general, for appellee.

Before COBLE, P.J., HILL and ATCHESON, JJ.

MEMORANDUM OPINION

PER CURIAM.

In this direct appeal, Michael Alexander Hormell, convicted of aggravated robbery and attempted voluntary manslaughter raises several challenges to his convictions. He claims the district court erred by: (1) declining to order a mistrial after a witness vouched for the credibility of another witness; (2) barring the admission of evidence about a witness' reputation; and (3) violating his double jeopardy rights. Our review of the record reveals no errors and we affirm.

Hormell tries to rob a drug dealer.

On a late afternoon in January 2018, William Bellemere met at a park in Lawrence, Kansas, with his former high school classmate, Ardyn Pannell. By text message, Pannell had arranged to buy five grams of marijuana from Bellemere for $50. After Pannell arrived at the park in her truck Bellemere got in the front passenger seat. Bellemere then noticed a man, who he correctly believed to be Hormell wearing a black ski mask in the back seat, holding a pistol. Hormell removed his mask and told Bellemere to close the door. Fearing for his safety, Bellemere fled but Hormell pursued and the two fought outside the truck. Sometime during the struggle, Bellemere was shot in the chest. Hormell got back into Pannell's truck, and they drove away.

Based on information from witnesses who saw the altercation Douglas County Sheriff officers found both Pannell and Hormell after her truck was stopped later that day. Officers interviewed Pannell, who at first said in the patrol car on the way to the police station that the encounter was simply a drug sale and that she did not know why the fight started. But at the station, Pannell told the officers that she and Hormell planned to rob Bellemere rather than paying for the marijuana.

The State charged Hormell with one count of aggravated robbery, one count of conspiracy to commit aggravated robbery, one count of attempted murder in the second degree, and theft. Hormell and Pannell were charged as codefendants.

The parties clashed before trial.

About a month before the jury trial, Hormell moved to have the court determine Pannell's competence as a witness and asked to subpoena her mental health records. The State objected by challenging the relevance of the mental health records and arguing that Pannell was a competent witness. The court allowed Hormell to subpoena the records but ordered them to be delivered to the court first for an in camera review.

At a motions hearing, the district court considered arguments on Hormell's motion to find Pannell was not a competent witness. Hormell argued that a review of the mental health records showed she was manipulative, often gave inconsistent information that could not be verified, and had substance abuse issues that gave her auditory and visual hallucinations. The court declined to find Pannell incompetent but allowed Hormell to question her about any drug use in the 24 hours preceding the incident or any hallucinations the week before. As for questions about Pannell's mental health or reputation for being manipulative or dishonest, the court cautioned Hormell about the admissibility of the records.

The jury was sworn in by a clerk before the Batson challenges were decided by the judge.

The case proceeded to a jury trial. After voir dire, the court told the jury panel that it could talk amongst themselves while the attorneys made their peremptory challenges. Then, just after announcing the names of the 18 excused jurors and telling them to take a seat in the gallery, the clerk swore in the 13 jurors who remained on the panel.

The court thanked the excused jurors for their service and explained they were free to leave or remain in the gallery, then sent the jury panel to the deliberation room. Outside the presence of the jury, the court asked the parties if they accepted the empaneled jury. The State responded affirmatively, but Hormell raised two Batson challenges. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The court told the attorneys it was taking the matter under advisement and instructed them to return the next morning. Likewise, the court asked the two jurors who were the subjects of the Batson challenges-who had remained in the gallery-to return the next day as well.

The next day, the court began by noting the jury clerk had given the jurors their oath. The problem, of course, is that the court had not yet ruled on the challenges about the State's exclusion of the two potential jurors.

The State believed that Hormell's Batson objections were untimely and argued the trial should proceed because there was no mechanism to replace an already sworn juror. In the alternative, the State argued that there were race neutral reasons to support its challenged peremptory strikes.

Hormell argued he had timely raised the Batson challenges by mentioning them to the State and because defense counsel was familiar with the district court's practice of waiting to ask when the jury was sworn in. Defense counsel asserted she understood "there was some delay . . . but it was not appropriate to do it before I did."

The court explained that the jury clerk had improperly sworn in the jury before Hormell had a chance to raise objections, thus concluding that defense counsel "acted promptly enough." The court explained that the proper remedy-because "jeopardy has attached"-was to declare a mistrial. In closing, the court scheduled the new trial to begin in December and then dismissed the jury after informing it about the declaration of a mistrial.

After Hormell moved for a change of judge, a different judge was assigned. This meant that a different judge dealt with Hormell's double jeopardy violation claim before the second trial.

The new trial raised new legal challenges.

Hormell moved to dismiss this prosecution based, in part, on a violation of his double jeopardy rights. He argued that jeopardy had attached because the jury was sworn before the declaration of a mistrial, and there was no "manifest necessity" to justify a mistrial because the basis for the mistrial was the State's misconduct in striking a juror in violation of Batson. See State v. Johnson, 261 Kan. 496, 503, 932 P.2d 380 (1997). The State responded that the mistrial was attributable to Hormell mainly because he did not make a timely Batson challenge or otherwise object to the declaration of a mistrial.

The court denied Hormell's motion to dismiss on double jeopardy grounds. In ruling, the court identified three facts that supported its ruling:

(1) Hormell failed to make a Batson challenge before the jury was sworn in;

(2) the jury clerk did not wait for the judge to ask if the panel was acceptable before swearing in the jury; and

(3) the court upheld one of Hormell's Batson challenges. This meant that one of the panel members was wrongfully excluded from the jury.

The court further found there was no dispute that all of these things happened, and they involved actions taken by all the parties. The court determined that while none of these facts alone would have caused a mistrial, collectively they did.

The court added that a mistrial was necessary under three subsections of the mistrial statute-K.S.A. 22-3423-because "it was physically impossible to proceed with the trial in conformity with the law after a released juror was, in effect, reinstated by the Batson challenge being sustained"; because of a "legal defect in the proceedings that would reverse a guilty verdict with a Batson challenge that's granted after the jury was sworn in"; or because the previous judge "found prejudicial conduct when she sustained one of the Batson challenges, and that would make it impossible to proceed to trial without injustice to the defendant." See K.S.A. 22-3423(1)(a), (b), and (c).

The court held that Hormell consented to the mistrial by not objecting at any point during the first trial. As a result, the court found that double jeopardy was not implicated because the State's conduct that led to the mistrial-improper striking of a potential juror under Batson-was not an "intentional, purposeful plan of goading the defendant into not objecting to a mistrial or consenting to a mistrial."

The court added that even if Hormell's lack of objection were not enough to be considered consent, that a manifest necessity existed to support declaring a mistrial and ordering a new trial because there was no legal process to replace a sworn juror.

Before the start of his second trial, Hormell filed a habeas petition with this court reasserting a violation of his double jeopardy rights. This court summarily denied his habeas petition and the following motion for reconsideration.

During the second trial, comments about a witness' truthfulness were offered.

One of the officers who testified at the second trial told the jury about Pannell's demeanor while he was asking her questions about the incident. Detective Lance Flachsbarth described Pannell's demeanor as "a roller coaster of emotions" and she appeared to be suffering from some trauma or shock. He also said her account of what had occurred changed while in the vehicle and "once we arrived at our office and moved into an interview room, her statement evolved and changed ultimately to its final version."...