State v. Wilson

495 P.3d 415 (Table)

STATE of Kansas, Appellee,

v.Clarence Ray WILSON Jr., Appellant.

No. 122,824

Court of Appeals of Kansas.

Opinion filed September 24, 2021.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Gardner and Cline, JJ.

MEMORANDUM OPINION

Per Curiam:

Clarence Ray Wilson Jr. seeks to set aside his aggravated robbery conviction because the district court found a witness "unavailable" and allowed the State to play a video of that witness' preliminary hearing testimony for the jury. He also claims the Kansas Sentencing Guidelines Act (KSGA) violates his right to a jury trial under section 5 of the Kansas Constitution Bill of Rights by allowing the court, instead of a jury, determine his criminal history. Because the State sufficiently established the witness was unavailable based on medical issues and Wilson was allowed an adequate opportunity to examine the witness at the preliminary hearing, we affirm his conviction. And we affirm his sentence because the Supreme Court just determined the KSGA does not violate a defendant's constitutional right to a jury trial.

FACTS

Since the facts of Wilson's offense are largely irrelevant to the issues before us, we will highly summarize them. In January 2019, an armed, masked man robbed the Dog N Shake in Wichita, as two workers were preparing to open the store for the day. As the robber left through the front door, one of the workers ran out the back door. The worker told Michael Cook, a delivery driver who had just arrived, that the Dog N Shake was robbed. He identified the robber and asked Cook to follow him. Cook called 911 while he pursued the man. When the police arrived, Cook identified Wilson as the man he had been following and the one the worker said had robbed Dog N Shake.

The State charged Wilson with aggravated robbery under K.S.A. 2018 Supp. 21-5420(b)(1). At the September 2019 preliminary hearing, the State obtained permission to videotape Cook's testimony. The State notified both the district court and Wilson that Cook's health was deteriorating, and so he may be unable to testify at trial. Cook suffered from bladder cancer and chronic obstructive pulmonary disease (COPD), which significantly suppressed his immune system.

At the outset of the January 2020 trial, the State reminded the district court and Wilson that it had videotaped Cook's preliminary testimony out of concern for his trial availability. The State said it had been in contact with Cook and his medical provider, Lauren Ewertz, several times during the prior week about Cook's health. The State mentioned a letter from Ewertz that the State had provided to the court and Wilson the prior week, which outlined Cook's medical conditions and why Ewertz believed it would impair Cook's health to testify at trial. The State proposed to offer Cook's recorded testimony from the preliminary hearing at trial and offered to call Ewertz to the stand to testify to Cook's medical state. Since Wilson objected, the court asked the State to bring Ewertz in to testify before it decided whether to grant the State's request.

Ewertz, a nurse practitioner, testified she treats homebound patients. Cook was one of her patients. She testified Cook had bladder cancer, significant weight loss, significant muscle weakness, COPD, and debilitating anxiety. Ewertz believed Cook's immune system was likely compromised from his cancer. She was concerned his compromised immune system would put him at risk for further illness if he came to court to testify in the middle of cold and flu season. When pressed by the defense, Ewertz said Cook was on oxygen, but he could converse while sitting in his recliner. But she also said Cook lacked access to a portable oxygen machine at the time of trial. Ultimately, Ewertz testified that, based on her medical training, she believed testifying at trial would endanger Cook's health and well-being.

The district court admitted the video of Cook's preliminary hearing testimony over Wilson's objection, ruling that Cook was medically "unavailable" to testify at the trial. The State played the video for the jury and called several other witnesses to testify. Wilson did not testify, nor did he present any witnesses. The jury found Wilson guilty of aggravated robbery.

ANALYSIS

Wilson claims the State did not adequately establish Cook's unavailability for trial, and Wilson's opportunity to cross-examine Cook at the preliminary hearing did not satisfy his right of confrontation. Whether there is sufficient proof that a witness is unavailable for trial is a question within the district court's discretion. State v. Page , 303 Kan. 548, 555, 363 P.3d 391 (2015). A district court abuses it 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. 303 Kan. at 555. The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Thomas , 307 Kan. 733, 739, 415 P.3d 430 (2018).

The State sufficiently established Cook was unavailable to testify at trial.

Wilson contends the State did not establish Cook was "unable" to testify and therefore Cook was not "unavailable." He also argues the State did not show that Cook would suffer "undue anxiety" by testifying and that general anxiety should not excuse his appearance at trial.

Under K.S.A. 2020 Supp. 60-460(c)(2)(B), the district court may allow admission of prior testimony from a preliminary hearing in the same criminal case if the district court judge finds the declarant is unavailable and admitting the testimony would not violate the adverse party's right to confront the witness. Under K.S.A. 60-459(g)(3), an "unavailable witness" includes "situations where the witness is ... unable to be present or to testify at the hearing because of death or then existing physical or mental illness." One of the concerns of allowing prior testimony is that it prevents the jury from having a chance to view the witness' demeanor as he or she testifies. See Maryland v. Craig , 497 U.S. 836, 837, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).

In State v. Ruebke , 240 Kan. 493, 518, 731 P.2d 842 (1987), the Kansas Supreme Court found the district court did not abuse its discretion when it found an "unavailable witness" based on a physician's letter describing the witness' second- and third-degree burns as well as receiving testimony from the witness' mother describing her son's condition. The letter also stated it would not be in the witness' best mental and physical well-being to appear in court to testify.

In contrast, another panel of this court found the district court should have required the State to procure the witness' physician to give sworn testimony about the witness' inability to participate in the trial. See State v. Fondren , 11 Kan. App. 2d 309, 314, 721 P.2d 284 (1986)overruled on other grounds by State v. Daws , 303 Kan. 785, 792, 368 P.3d 1074 (2016). Similarly, in State v. Rodriguez-Garcia , 27 Kan. App. 2d 439, 8 P.3d 3 (1999), a panel of this court held that mere assertions by the State on the record are not evidence and may not support an unavailable witness determination. 27 Kan. App. 2d at 443 ; see also State v. Houston , No. 93,771, 2006 WL 851306, at *3 (Kan. App. 2006) (unpublished opinion) (holding that district court abused its discretion when it admitted preliminary hearing testimony of State's witness after State merely asserted on record that it could not find witness).

The district court did not abuse its discretion here. Wilson was on notice of Cook's potential unavailability for trial at the preliminary hearing. The State also told Wilson about Cook's then-existing mental and physical condition shortly before trial. And, as in Ruebke (and unlike Fondren and Rodriguez-Garcia ), Cook's personal at-home nurse practitioner testified about Cook's significant medical issues and her concerns about the detrimental impact Cook's appearance at trial could have on his health. And, importantly, the State did not merely read a transcript of Cook's preliminary hearing testimony to the jury. Instead, the jury had a chance to view Cook's demeanor as he testified.

As the State aptly notes, Kansas caselaw does not require a witness to be physically incapable of making it into the courtroom to be deemed unavailable to testify due to a then-existing physical or mental illness. See State v. Stano , 284 Kan. 126, 130, 140, 159 P.3d 931 (2007). And we need not determine whether the district court could or should have forced Cook to testify when the evidence suggests Cook was going through a considerable illness—both physically and mentally. Rather, we need only determine whether the district court's decision to declare Cook unavailable, under the circumstances, was arbitrary, fanciful, or unreasonable, or based on a legal or factual error. We find it was not.

Wilson had an adequate opportunity to confront Cook "face to face" at his preliminary hearing.

Wilson also argues the court violated his right to confront Cook "face to face," under K.S.A. 2020 Supp. 60-460(c)(2)(B). See section 10 of the Kansas Constitution Bill of Rights. We review de novo a challenge to a defendant's right of confrontation. See State v. Stafford , 312 Kan. 577, 588, 477 P.3d 1027 (2020).

Once a district court finds the declarant is an unavailable witness, the State may present previous testimony at trial unless it violates a criminal defendant's right to meet the witness face to face. K.S.A. 2020 Supp. 60-460(c)(2)(B). Under K.S.A. 2020 Supp. 60-460(c)(2)(B), a party may admit testimony given by an unavailable witness at "a preliminary hearing" if the adverse party had the "opportunity for cross-examination with an interest and motive similar to that which the adverse party" had in the current action. Se...