State v. Gindlesberger

PER CURIAM.

Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J. and KNUDSONS, J.

MEMORANDUM OPINION

PER CURIAM.

Rhett J. Gindlesberger appeals his conviction for battery of a law enforcement officer (K.S.A.21–3413[a][3][D] ). Gindlesberger contends the trial court erred in instructing the jury and in accepting the verdict. We affirm.

Factual and Procedural History

On April 13, 2010, Gindlesberger was an inmate at the Sedgwick County jail. He had an emotional outburst and was escorted back to his cell by Sean Ward, a detention deputy at the jail. The two scuffled as Gindlesberger entered his cell.

According to Deputy Ward's testimony, “Gindlesberger got to the doorway, he turned around and attempted to swing at me.” Deputy Ward executed “a palm heel strike to the middle portion of [Gindlesberger's] chest ... which caused him to back [into] the cell.” The deputy attempted to close the cell door, but “Gindlesberger rushed out [of] the cell and placed me in a headlock .”

According to Gindlesberger's testimony, Deputy Ward “walked up behind me and pushed me in my cell, and I turned around and I put him in a headlock. I just grabbed him by the shirt, put him in a headlock.” Gindlesberger claimed he “never swung at” Deputy Ward. On cross-examination, however, Gindlesberger testified that Deputy Ward was “putting himself in danger” by following him, admitted he had taken “an aggressive stance against” the deputy, and also admitted that the deputy prevented Gindlesberger from striking him.

Gindlesberger's counsel asked the trial court for a self-defense instruction: “I think Mr. Gindlesberger's position is that this was an unprovoked attack by the deputy and simply his actions were a response to the aggression given by the deputy.” The prosecutor objected, stating “a person cannot claim self defense against a law enforcement officer in performance of their duty making an arrest.”

The trial court added the following language to the elements instruction: “The use of force by a county correctional officer, appropriate or excessive, is not a factor in determining the issue of whether the officer was engaged in the performance of his duty.” Gindlesberger did not object to this additional language. The trial court then agreed to submit a self-defense instruction based on PIK Crim.3d 54.17.

During closing arguments the prosecutor elected the criminal act at issue: “The first element to be proved is that [Gindlesberger] intentionally caused physical contact with [Deputy] Ward in a rude, insulting or angry manner. The headlock was intentional by both parties' accounts. [Gindlesberger] agreed with me that he intended to put Deputy Sean Ward into that headlock.”

The prosecutor then discussed the language added to the elements instruction:

“Number three, that [Deputy] Ward was engaged in the performance of his duty. Deputy Ward had no other reason to be in uniform, to be at the jail, to be doing anything else. He was on duty. [Gindlesberger] would not agree with me on this statement, but there is law here and we have an instruction. The use of force by the corrections officer is not a factor in determining whether he's on duty. You can't argue that, well, I believe he was outside the bounds of reasonable force, therefore, he no longer was on duty. You have the law. It's right there. He was on duty that day.”

Gindlesberger's counsel argued that although Deputy Ward said his client had raised his hand as if to strike, the deputy “never said [Gindlesberger] swung at him.” Counsel characterized Deputy Ward's response as “a strike first and ask questions later approach because immediately, bam, right into his chest, driving him all the way to the back wall of this cell.” Counsel claimed Deputy Ward had used “excessive force,” and that Gindlesberger had “acted in self defense” by placing the deputy in a headlock.

When the jury returned from its deliberations, the trial court asked the presiding juror to hand the verdict to the clerk. The clerk then read the verdict of guilty and said the presiding juror had signed the form. The trial court asked the presiding juror, “is that the jury's verdict?” The presiding juror said it was. The trial court then asked counsel if they wanted to have the jury polled, and both counsel declined. The trial court accepted the verdict and ordered it entered into the record. Gindlesberger appeals.

Elements Instruction

Gindlesberger contends the language added to the elements instruction violated his constitutional right to present a defense. The State maintains Gindlesberger invited any error, but we disagree. The prosecutor, not Gindlesberger, requested the additional language. Nevertheless, Gindlesberger did not object to the added language, so we review for clear error. See State v. Scott, 271 Kan. 103, 116, 21 P.3d 516 (2001).

In analyzing an instruction under these circumstances, our standard of review is clear: “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Martinez, 288 Kan. 443, Syl. ¶ 9, 204 P.3d 601 (2009).

The elements instruction provided to the jury advised:

“The defendant is charged with the crime of battery against a law enforcement officer. The defendant pleads not guilty.

To establish this charge, each of the following claims must be proved:

1. That the defendant intentionally caused physical contact with Sean Ward in a rude, insulting or angry manner;

2. That Sean Ward was a county correctional officer or employee and defendant was a person confined in a county jail facility;

3. That Sean Ward was engaged in the performance of his duty; and

4. That this act occurred on or about the 13th day of April, 2010, in Sedgwick County, Kansas.

“The use of force by a county corrections officer, appropriate or excessive, is not a factor in determining the issue of whether the officer was engaged in the performance of his duty.”

The self-defense instruction provided:

“The defendant claims his use of force was permitted as self-defense.

“The defendant is permitted to use force against another person when and to the extent that it appears to him and he reasonably believes such force is necessary to defend himself against the other person's imminent use of unlawful force. Reasonable belief requires both a belief by defendant and the existence of facts that would persuade a reasonable person to that belief.

“A person who initially provokes the use of force against himself is not permitted to use force to defend himself unless:

1. The person reasonably believes that he is in present danger of death or great bodily harm, and he has used every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the other person; or

2. The person has in good faith withdrawn from physical contact with the other person and indicates clearly to the other person that he desires to withdraw and stop the use of force, but the other person continues or resumes the use of force.”

On appeal, Gindlesberger asserts Deputy Ward “initiated the unneeded physical contact.” Gindlesberger fails to acknowledge, however, his threatening actions immediately preceding the physical contact, claiming “[Deputy] Ward simply struck him when he arrived back at his cell,” and that he was “struck by [Deputy] Ward for no apparent reason.” Gindlesberger then contends, “To properly evaluate if [his] actions were in self-defense to [Deputy] Ward's criminal act, the jury must be able to evaluate the appropriateness and reasonableness of [Deputy] Ward's actions.” In this context, Gindlesberger maintains the language added to the elements instruction “assumed that any level of action, even criminal, by [Deputy] Ward constituted an official duty.”

Both parties cite State v. Trujillo, 225 Kan. 320, 590 P.2d 1027 (1979), in support, but we do not believe this case is analogous. The defendant in Trujillo was charged with aggravated battery of a law enforcement officer after attacking a police officer who was making an arrest on other grounds. In what appears to have been a sufficiency of the evidence argument, the defendant contended: “[T]he officer was making an illegal arrest and therefore was not engaged in the performance of his duty.” 225 Kan. at 322.

Unlike the defendant in Trujillo, Gindlesberger neither contests the sufficiency of the evidence nor denies that Deputy Ward was engaged in the performance of his duty. Instead, Gindlesberger claims the language added to the elements instruction conflicted with his self-defense instruction, which required the jury to consider whether Gindlesberger faced an “imminent use of unlawful force.” In Gindlesberger's view, the jury might have concluded from the added language that Deputy Ward could not, by definition, use unlawful force while engaged in the performance of his duty.

We disagree. The language added to the elements instruction did not mention unlawful force. Instead, it recognized—with specific regard to the element of whether the deputy was engaged in the performance of his duty-Deputy Ward could use either “appropriate or excessive” force. Still, the jury could have concluded that Gindlesberger faced an “imminent use of unlawful force,” as the self-defense instruction provided. PIK Crim.3d 54.17 (Emphasis added.); see State v. Hall, 292 Kan. 841, Syl. ¶ 20, 257 P.3d 272 (2011) (appellate courts consider instructions as a whole).

Finally, assuming the elements instruction as modified was error, it was not clearly erroneous. Based on Gindlesberger's cross-examination and his counsel's closing argument, it was uncontroverted that Gindlesberger provoked Deputy Ward's use of force. As the initial aggressor, Gindlesberger was permitted by the instructions to defend himself in two situations. See K.S.A.2010 Supp. 21–3214(c)(1)–(2). Gindlesberger's counsel invoked the first of these during closing arguments, asking “[w]hat is his opportunity to escape” and asserting “[t]here's no place for [him] to go.” Counsel urged that Gindiesberger “put [Deputy Ward] in a headlock because that was the only way he could stop [the deputy] from coming after him.”

But the jury was instructed on the necessity of escape only where the initial aggressor “reasonably believes that he is in present danger of death or great bodily harm.” In this regard, our review of the record convinces us there was no evidence Gindiesberger had a reasonable belief of this danger. The situation applicable here, instead, was withdrawal: “The person has in good faith withdrawn from physical contact with the other person and indicates clearly to the other person that he desires to withdraw and stop the use of force, but the other person continues or resumes the use of force.”

The evidence showed Gindiesberger could have withdrawn to his cell after the initial skirmish, but he did not. On the contrary, Gindiesberger admitted that he reached for Deputy Ward's shirt to place him in the headlock. We are not firmly convinced there is a real possibility the jury would have rendered a different verdict even if any assumed trial error had not occurred. See Martinez, 288 Kan. 443, Syl. ¶ 9.

Trial Court's Acceptance of the Verdict

Gindiesberger contends the trial court failed to comply with K.S.A. 22–3421, which requires an “inquiry” whether a verdict “is the jury's verdict.” In particular, Gindiesberger contends that although the trial court inquired of the presiding juror, it did not inquire of “the full jury.” The parties agree that we exercise unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

Trial Court's Acceptancoef The Verdict

Gindiesberger did not raise this issue below, and he also declined the trial court's offer to poll the jury. Two panels of this court have held defendants in similar situations may not challenge the acceptance of the verdict for the first time on apeal. See State v. Womelsdorf, 47 Kan.App.2d 307, 274 P.3d. 662 (2012); State v. Dunlap, 46 Kan.App.2d 924, 934–35, 266 P.3d 1242 (2011), petition for review filed December 30, 2011. We agree with these decisions, especially where, as here, no grounds for questioning jury unanimity exist. Compare State v. Johnson, 40 Kan.App.2d 1059, 1079, 198 P.3d 769 (2008) (“the record contains two posttrial affidavits from jurors indicating that they did not feel the verdict was correct and truly unanimous”).

Essential to our decision to decline review is that Gindlesberger has not alleged any harm as a consequence of the trial court's procedure used to accept the jury's verdict. In State v. Holt, 285 Kan. 760, 770, 175 P.3d 239 (2008), our Supreme Court refused to consider an objection to polling the jury raised for the first time on appeal where the appellant “failed to show that the polling procedure ... actually harmed him.” (Emphasis added.) Gindlesberger shows no harm and under the unique circumstances of this case we can find none.

As to the merits, a criminal defendant has a statutory right to a unanimous jury verdict. State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010); see K.S.A. 22–3421; K.S.A. 22–3423(1)(d). As a method to insure unanimity, K.S.A. 22–3421 sets forth a specific procedure for accepting a jury's verdict in a criminal case:

“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.” (Emphasis added.)

In short, when accepting a jury verdict, district courts are required to follow two separate procedural steps: “First, the trial judge shall inquire whether the verdict read in open court is the jury's verdict. Second, the trial judge must poll the jury if either party requests that the jury be polled.” Womelsdorf, 47 Kan.App.2d 307, Syl. ¶ 7.

Gindlesberger does not specify how the trial court should have inquired of “the full jury” apart from polling them individually. He does not state what words should have been used here, does not support his position with relevant citations to Kansas law, and does not provide arguments given that his position lacks authority. In addition to not preserving this issue below, we conclude Gindlesberger has waived or abandoned this issue on appeal. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).

Finally, in accepting the jury's verdict some trial courts follow the inquiry of the presiding juror with a question to the panel as a whole before asking counsel if the jury should be polled. See 23A C.J.S., Criminal Law § 1879. The provisions of K.S.A. 22–3421 mirror this approach. Compliance with this procedure will fulfill the statutory requirements of K.S.A. 22–3421 and insure accurate and unanimous verdicts.

Affirmed.