JAN 1 3 2015

No. 14-111666-A

IN THECOURT OF APPEALS OF THE , y

STATE OF KANSAS-------------- X3ATKHR L. SiV. HTK

S 3 R K C F APPELLATE C T J a / -

STATE OF KANSASPlaintiff-Appellee

vs.

TIFFANY C. HUBBARDDefendant-Appellant

BRIEF OF APPELLANT

Appeal from the District Court of Douglas County, Kansas Honorable Sally Pokomy, Judge

District Court Case No. 13 CR 26

Carol Longenecker Schmidt, #24828Kansas Appellate Defender OfficeJayhawk Tower700 Jackson, Suite 900Topeka, Kansas 66603(785) 296-5484(785) 296-2689 Faxadoservice@sbids.orgAttorney for the Appellant

Table of Contents

Nature of the C ase........................................................................................................................1

Statement o f the Issues................................................................................................................ 1

Statement of F acts........................................................................................................................1

Arguments and Authorities.......................................................................................................4

Issue I: The district court erred in adm itting S tate’s ExhibitN um ber 30, which depicted Ms. H u b b ard ’s license to operate an in-home daycare...........................................................4

State v. Jenkins. 272 Kan. 1366, 39 P.3d 47 (2002)....................................... 4State v. Lumlev, 266 Kan. 939, 976 P.2d 486 (1999).....................................4State v. Beaman, 295 Kan. 853, 286 P.3d 876 (2012).................................... 5K.S.A. 60-407....................................................................................................... 5K.S.A. 60-401....................................................................................................... 5State v. Goodson. 281 Kan. 913, 135 P.3d 1116 (2006)............................... 5State v. Faulkner. 220 Kan. 153, 551 P.2d 1247 (1976)................................ 5State v. Miller. 284 Kan. 682, 163 P.3d 267 (2007)....................................... 5State v. Leitner. 272 Kan. 398, 34 P.3d 42 (2001)......................................... 5K.S.A. 21-5705.....................................................................................................6K.S.A. 21-5706.....................................................................................................6K.S.A. 21-5707.....................................................................................................6K.S.A. 21-5709.....................................................................................................6State v. Ward. 292 Kan. 541, 256 P.3d 801 (2011), cert, denied,

132 S. Ct. 1594, 182 L. Ed. 2d 205 (U.S. 2012)................................ 7

Issue II: The district court violated Ms. H u b b ard ’s constitutionalrigh t to present a full and complete defense by granting the State’s motion in limine................................................................ 7

State v. Gunbv. 282 Kan. 39, 144 P.3d 647 (2006)........................................ 8State v. Torres. 294 Kan. 135, 273 P.3d 729 (2012).......................................8State v. Walters. 284 Kan. 1, 159P.3d 174(2007)........................................ 8Rock v. Arkansas. 483 U.S. 44, 97 L.Ed.2d 37 (1987)..................................8Chambers v. Mississippi. 410 U.S. 284, 35 L.Ed.2d 297 (1973)................. 8State v. Scott. 39 Kan. App. 2d 49, 177 P.3d 972 (2008)........................ 9-10State v. Lawrence. 281 Kan. 1081, 135 P.3d 1211 (2006).............................9K.S.A. 60-401.......................................................................................................9State v. Lumley, 266 Kan. 939, 976 P.2d 486 (1999).................................... 9Davis v. Alaska. 415 U.S. 308, 39 L.Ed.2d 347,

94 S.Ct. 1105 (1974)...............................................................................9

Ill

Barbara Lawyers Guide to Kansas Evidence § 3.1, p. 59[5th ed. 2007]...........................................................................................9

State v. Rowland, 172 Kan. 224, 239 P.2d 949 (1952)................................10Federal Rule o f Criminal Procedure 35 .......................................................... 10State v. Ward, 292 Kan. 541,256 P.3d801 (2011).................................... 11

Issue III: The prosecutor committed reversible misconductduring closing argument...................................................................12

State v. Witten, 45 Kan. App. 2d 544, 251 P.3d 74 (2011)......................... 12State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004)................................... 13, 15State v. Swinney, 280 Kan. 768, 127 P.3d261 (2006)................................ 13State v. Mann, 274 Kan. 670, 56 P.3d 212 (2002)....................................... 13State v. Pabst, 268 Kan. 501, 996 P.2d 21 (2000)........................................13State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005).......................... 13-15State v. Jackson, 37 Kan. App. 2d 744, 157 P.3d 660 (2007)............ 14-15State v. Wells, 296 Kan. 65, 290 P.3d 590 (2012)....................................... 15State v. Chanthaseng, 293 Kan. 140, 261 P.3d 889 (2011).........................16

Issue IV: The district court violated Ms. Hubbard’s statutoryand constitutional right to be present at the critical stages of the proceedings against her.............................................16

State v. Warledo, 286 Kan. 927, 190 P.3d 937(2008)................................. 17State v. Hawkins, 285 Kan. 842, 176 P.3d 174 (2008).................................17State v. Engelhard! 280 Kan. 113, 119 P.3d 1148 (2005)...........................18Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453,

78 L.Ed.2d 267(1983)...........................................................................18State v. McGinnes. 266 Kan. 121, 967 P.2d 763 (1998).............................. 18Rothgery v. Gillespie County, 554 U.S. 191, 128 S.Ct. 2578,

171 L.Ed.2d 366 (2008)....................................................................... 18United States v. Ash. 413 U.S. 300, 93 S.Ct. 2568,

37 L.Ed.2d 619 (1973)..........................................................................18K.S.A. 22-3208..................................................................................................18K.S.A. 22-3405...................................................................................................18State v. Verser, 299 Kan. 776, 326 P.3d 1046 (2014)......................... 19-20State v. Larraco, 32 Kan.App.2d 996, 93 P.3d 725 (2004)......................... 19State v. Ward, 292 Kan. 541, 256 P.3d 801 [2011], cert, denied

U .S . , 182 L.Ed.2d 205, 132 S.Ct. 1594(2012)...............20

Issue IV: The district court erred in ordering Ms. Hubbardto pay $2000.00 in Kansas Bureau of Investigation laboratory fees..................................................................................... 21

K.S.A. 28-176...............................................................................................21-22State v. Goeller, 276 Kan. 578, 77 P.3d 1272 (2003)............................ 21-22

iv

State v. Barnes. 275 Kan. 364, 64 P.3d 405 (2003).......................................21K.S.A. 8-2144 or 8-1567.................................................................................. 21

Conclusion....................................................................................................................................23

1

Nature of the Case

A jury convicted Tiffany C. Hubbard of two counts of unlawful distribution of

cocaine, a severity level four drug felony; two counts o f unlawful use o f a

communication facility to facilitate the distribution o f cocaine, a severity level eight

nonperson felony; and one count o f unlawful possession o f cocaine, a severity level five

drug felony. The district court imposed a controlling fourteen-month prison sentence.

Ms. Hubbard appealed.

Statement of the Issues

The district court erred in admitting State’s Exhibit Number 30, which depicted Ms. Hubbard’s license to operate an in-home daycare.

The district court violated Ms. Hubbard’s constitutional right to present a full and complete defense by granting the State’s motion in limine.

The prosecutor committed reversible misconduct during closing argument.

The district court violated Ms. Hubbard’s statutory and constitutional right to be present at the critical stages of the proceedings against her.

The district court erred in ordering Ms. Hubbard to pay $2000.00 in Kansas Bureau of Investigation laboratory fees.

Statement of Facts

The controlled buys

In October 2012, the Douglas County Drug Enforcement Unit (DEU) created

several “controlled buys” o f crack cocaine using cooperating individual James Beltch.

(R. Vol. XII, 213-21, 222-26, 234-40; R. XV, 366-77). The initial target of these

controlled buys was Fred Reese, a suspected distributor o f crack cocaine. (R. XII, 212).

Issue I:

Issue II:

Issue III:

Issue IV:

Issue IV:

2

At the direction o f the DEU, Beltch executed four controlled buys on October 2,

5, 11, and 18, 2012, in Lawrence, Kansas. (R. XV, 315-48). Prior to each controlled

buy, police searched Beltch and his car and placed a wire on him. (R. XII, 215-16, 222-

23, 234-35; R. XV, 309, 367-69). Then, Beltch would call the target, Reese, and state

that he needed to buy a certain number o f cell phone minutes, which, according to Beltch,

was code for buying a certain amount o f crack cocaine. (R. XV, 316-17). According to

Beltch, on October 2, 5, and 11, 2012, Reese told Beltch to contact Ms. Hubbard, and,

after doing so, Ms. Hubbard told Beltch to either meet her at her house or at another

location. (R. XV, 318-19, 330, 339). On October 18, 2012, Beltch contacted Ms.

Hubbard directly, and she told him to come to her house. (R. XV, 346). Upon meeting

Ms. Hubbard, according to Beltch, she would give him a certain amount of crack cocaine,

and he would pay her. (R. XV, 320, 331-32, 341, 347-48). Beltch would then return to

the police station where he gave the drugs to officers and submitted to searches o f his

person and his car. (R. XII, 217, 226, 236-37; R. XV, 314-15, 375-77).

On October 24, 2012, officers executed a search warrant on Ms. Hubbard’s home

and found digital scales and 4.22 grams of crack cocaine inside white socks in a bedroom

closet. (R. XII, 241; R. XV, 413-15). Based on Beltch’s account o f his dealings with

Ms. Hubbard and the results o f the search warrant, the State charged Ms. Hubbard with

four counts o f unlawful distribution o f cocaine, four counts o f unlawful use o f a

communication facility to facilitate the distribution of cocaine, one count o f possession of

cocaine with the intent to distribute, and one count o f possession o f drug paraphernalia.

(R. I, 6-7). Ms. Hubbard proceeded to trial on all counts. (R. VII, 3).

3

The proceedings against Ms. Hubbard

Before trial, defense counsel moved to exclude evidence that, because Ms.

Hubbard had operated a licensed in-home daycare, that several children were present at

Ms. Hubbard’s home when she met with Beltch. (R. I, 73; R. VII, 4-5, 7). The district

court partially granted defense counsel’s motion, admitting evidence that Ms. Hubbard

operated an in-home daycare, but excluding evidence “that there were children present or

how many children[.]” (R. VII, 9). At trial, over defense counsel’s objection, the district

court admitted an exhibit depicting Ms. Hubbard’s license for the daycare. (R. XV, 384-

86).

At trial, Ms. Hubbard testified and explained that, during the summer o f 2012, she

had been using crack cocaine with Reese, who was her boyfriend at the time. (R. XV,

459, 474-75). During that time period, Beltch supplied Reese and Ms. Hubbard with the

cocaine that they used, and Reese always paid Beltch for the drugs. (R. XV, 472-73). On

each occasion in October 2012, that Ms. Hubbard met with Beltch, she purchased crack

cocaine from Beltch, instead of selling him cocaine. (R. XV, 459, 460). Ms. Hubbard

testified that she never sold any drugs to Beltch. (R. XV, 460).

After asking numerous questions, the jury hung on two counts o f unlawful

distribution o f cocaine, two counts of unlawful use o f a communication facility to

facilitate the distribution o f cocaine, and one count o f possession of drug paraphernalia.

(R. I, 46-48, 69-70; R. VI, 572-73, 577, 581-82, 585, 594, 598-99). The jury ultimately

convicted Ms. Hubbard of the remaining two counts of unlawful distribution of cocaine, a

severity level four drug felony; two counts o f unlawful use of a communication facility to

facilitate the distribution o f cocaine, a severity level eight nonperson felony; and one

count o f the lesser-included offense o f unlawful possession of cocaine, a severity level

five drug felony. (R. I, 47-48; R. VI, 598-99).

4

The district court denied Ms. Hubbard’s request for border box findings and

imposed a fourteen-month prison sentence for each distribution count, a ten-month prison

sentence for the possession count, and a seven-month prison sentence for each use o f a

communication facility count. (R. I, 100-11). The district court ordered the all sentences

to run concurrently with the primary distribution count, for a controlling fourteen-month

prison sentence. (R. I, 102). The district court also ordered Ms. Hubbard to pay

$2000.00 in Kansas Bureau o f Investigation laboratory fees. (R. I, 101). Ms. Hubbard

filed a timely notice o f appeal. (R. I, 97).

Arguments and Authorities

Issue I: The district court erred in admitting State’s Exhibit Number 30,which depicted Ms. Hubbard’s license to operate an in-home daycare.

Introduction

In the present case, the district court admitted a copy of Ms. Hubbard’s license to

operate an in-home daycare in order to show that Ms. Hubbard lived at the location where

three o f the four controlled buys occurred.1 (R. VII, 9; R. XV, 384-86). This evidence

contained a great risk o f prejudice. It suggested to the jury that Ms. Hubbard endangered

the lives o f children by conducting drug transactions in their presence. Because the State

cannot show that there is no reasonable possibility that the prejudicial effects o f this

exhibit contributed to the verdict, this Court must reverse Ms. Hubbard’s convictions.

Standard o f Review

“The admission o f evidence lies within the sound discretion o f the trial court.”

State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002) ('citing State v. Lumlev. 266

Kan. 939, 950, 976 P.2d 486 [1999]). A district court abuses its discretion if judicial

1 Under Kansas Supreme Court Rule 3.02, counsel has filed a request to add State’s Exhibit Number 30 to the record on appeal. An appellate record cite is currently not available for this exhibit.

5

action is:

a) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view adopted by the trial court; (b) based on an error o f law, i. e. , the discretion is guided by an erroneous legal conclusion; or (c) based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion o f law or the exercise o f discretion is based.

State v. Beaman. 295 Kan. 853, Syl. ^5, 286 P.3d 876 (2012).

Analysis

Generally, all relevant evidence is admissible at trial. K.S.A. 60-407. Evidence is

relevant i f it has “any tendency in reason to prove any material fact.” K.S.A. 60-401.

“Materiality requires that the fact proved be significant under the substantive law o f the

case and properly at issue.” State v. Goodson. 281 Kan. 913, 922, 135 P.3d 1116 (2006)

(quoting State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 [1976]). “While an

evidential fact may be relevant under the rules o f logic, it is not material unless it has a

legitimate and effective bearing on the decision of the ultimate facts in issue.” Goodson,

281 Kan. at Syl. U 7.

A district court may exclude evidence if it determines that the probative value of

the evidence is substantially outweighed by the risk o f unfair prejudice. State v. Miller,

284 Kan. 682, 690, 163 P.3d 267 (2007) (citing State v. Leitner. 272 Kan. 398, 415, 34

P.3d 42 [2001]). In order to show that the district court abused its discretion in admitting

prejudicial evidence, “the defendant must demonstrate that the [evidence’s] probative

value was substantially outweighed by their unfair prejudice.” Miller, 284 Kan. at Syl. K

6 .

In the present case, State’s Exhibit Number 30 was not relevant. None o f the

offenses o f which Ms. Hubbard was charged required that the State prove that Ms.

6

Hubbard lived at the home that Beltch visited or that she was there during the hours of

8:00 a.m. and 5:00 p.m. (R. I, 6-7). See, K.S.A. 21-5705(a) (unlawful distribution of

controlled substance); K.S.A. 21-5706(a) (unlawful possession o f controlled substance);

K.S.A. 21-5707(a)(l) (unlawful distribution o f controlled substance using a

communication facility); K.S.A. 21-5709(b)( 1) (unlawful possession o f drug

paraphernalia). Moreover, whether Ms. Hubbard lived at the home was not in dispute.

Ms. Hubbard testified to this fact, and the district court also admitted an exhibit depicting

a hunting license that showed that Ms. Hubbard’s mailing address was the home that

Beltch visited. (R. XV, 384-86; 453-55). Because State’s Exhibit Number 30 did not

have any tendency in reason to prove any material fact, it was not relevant and, therefore,

was inadmissible.

Furthermore, the risk of prejudice associated with State’s Exhibit Number 30 was

great. The exhibit told jurors not only that Ms. Hubbard operated a daycare, but (1) that

the daycare was in her home and (2) that there would have been children present during

the times that Beltch went to Ms. Hubbard’s home. The jurors were likely to conclude

that if any sort of drug-related activity was occurring around children, that they should

convict Ms. Hubbard o f at least some of the charges. Because the risk o f prejudice was

great, the probative value o f State’s Exhibit Number 30 was substantially outweighed by

its unfair prejudice.

Nor was admission o f State’s Exhibit Number 30 harmless. The district court’s

error implicates Ms. Hubbard’s right to a fair trial— a fundamental constitutional right

guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution—

and, therefore, the State must prove, “beyond a reasonable doubt[,] that the error

complained o f will not or did not affect the outcome o f the trial in light o f the entire

record, i.e., [that] there is no reasonable possibility that the error contributed to the

7

verdict.” State v. Ward, 292 Kan. 541, Syl. % 6, 256 P.3d 801 (2011), cert, denied, 132 S.

Ct. 1594, 182 L. Ed. 2d 205 (U.S. 2012). The State cannot prove such a standard in the

present case. It appears at least some o f the jurors believed Ms. Hubbard’s version the

events with Beltch because the jury only convicted Ms. Hubbard o f exactly half o f the

crimes o f which she was charged. (R. I, 46-48; R. VI, 598-99). Evidence that showed

that children were present at the home when Beltch met with Ms. Hubbard could have

swayed the jury to decide to convict Ms. Hubbard of some crimes. Thus, the State cannot

say that there is no reasonable possibility that the error contributed to the verdict.

Conclusion

In the present case, the district court erred when it admitted irrelevant evidence

that Ms. Hubbard operated an in-home daycare at the location where the controlled buys

allegedly occurred. Moreover, this error prejudiced Ms. Hubbard. The evidence

suggested to the jury that if Ms. Hubbard endangered the lives o f children, she was a

general wrongdoer who should be convicted of at least some o f the charges. Because the

State cannot show that this error was harmless, this Court must reverse Ms. Hubbard’s

convictions.

Issue II: The district court violated Ms. Hubbard’s constitutional right topresent a full and complete defense by granting the State’s motion in limine.

Introduction

Prior to trial, the State filed a motion in limine seeking the exclusion o f evidence

that cooperating individual James Beltch (1) had participated as a cooperating individual

in another criminal case, and (2) had sought the advice of an attorney to reduce his

federal prison sentence, in connection with his participation as a cooperating individual.

(R. I, 43; R. II, 15-16). Because this evidence had a tendency to establish Beltch’s

8

motive for testifying against Ms. Hubbard and his bias, it was relevant impeachment

evidence. In granting the State’s motion in limine, the district court abused its discretion,

denying Ms. Hubbard her constitutional right to a full and complete defense and her

Fourteenth Amendment due process right to a fair trial. Thus, this Court must reverse

Ms. Hubbard’s convictions.

Standard o f Review

When an appellant challenges the admission or exclusion o f evidence on appeal,

the first question is whether the evidence is relevant. State v. Gunby. 282 Kan. 39, 47,

144 P.3d 647 (2006). Appellate courts review a district court’s determination of

relevance for abuse o f discretion. See, State v. Torres. 294 Kan. 135, 139-40, 273 P.3d

729 (2012).

After a district court establishes that evidence is relevant, it may apply evidentiary

rules governing admission and exclusion as a matter o f law or it may, depending on the

rule, exercise its discretion. Gunby, 282 Kan. at 47-48. This Court reviews the adequacy

o f the legal basis o f a district court’s decision to admit or exclude evidence under a de

novo standard. State v. Walters. 284 Kan. 1,8, 159 P.3d 174, 180 (2007) (citing

Gunby, 282 Kan. at 47-48).

Analysis

A criminal defendant has a right to present a full and complete defense. Rock v.

Arkansas, 483 U.S. 44, 51, 97 L.Ed.2d 37 (1987); Chambers v. Mississippi. 410 U.S.

284, 294, 35 L.Ed.2d 297 (1973). A district court violates a defendant’s right to a fair

trial if it excludes evidence that is “relevant, admissible, and noncumulative evidence

which is an integral part o f the theory of the defense is excluded.” State v. Scott, 39 Kan.

9

App. 2d 49, 55, 177 P.3d 972 (2008) (citing State v. Lawrence. 281 Kan. 1081, 1085, 135

P.3d 1211 [2006]).

“Relevant evidence” is “evidence having any tendency in reason to prove any

material fact.” K.S.A. 60-401(b). A party can establish relevance by showing some

material or logical connection between the facts and the inference or result they are

intended to establish. State v. Lumlev. 266 Kan. 939, 950-51, 976 P.2d 486 (1999).

The bias, interest, or motives o f a witness is “always relevant as discrediting the

witness and affecting the weight of his testimony.5 State v. Scott. 39 Kan. App. 2d at 62

(quoting Davis v. Alaska. 415 U.S. 308, 316, 39 L.Ed.2d 347, 94 S .C t 1105 [1974]).

(Italics added). A district court should grant an attorney who is cross-examining a

witness wide latitude in establishing partiality, bias, motive, or interest: “ [m]atters of

inquiry here are not considered collateral hence the cross-examiner may introduce

extrinsic evidence unless the witness admits the fact or event.” Scott, 39 Kan. App. 2d at

56 (quoting Barbara Lawyers Guide to Kansas Evidence § 3.1, p. 59 [5th ed. 2007]).

This Court has held that evidence that showed a witness5 motive to testify against

the defendant was relevant impeachment evidence and, therefore, inadmissible at trial.

Scott, 39 Kan. App. 2d at 62-63. In Scott, the defendant challenged the district court’s

exclusion o f evidence that the State was investigating its principal witness, Soden, for

forging some o f the defendant’s checks. Scott, 39 Kan. App. 2d at 54-55. The defendant

argued that the district court had erred in excluding this testimony because it would have

established a motive for the witness to falsely implicate him in the current case. Scott, 39

Kan. App. 2d at 56.

10

On appeal, this Court reversed the district court’s exclusion o f the evidence,

noting that “a more searching examination is to be allowed of a witness who is a party

principal,” and “where the determination of the main issue of fact must largely depend

upon the credence to be given the testimony o f a litigant witness a wider range o f cross-

examination should be allowed than is usually permitted in the cross-examination of

witnesses in general.” Scott, 39 Kan. App. 2d at 61 (quoting State v. Rowland. 172 Kan.

224, 229, 239 P.2d 949 [1952]). Despite the fact that the district court admitted other

evidence showing Soden’s potential bias, because Soden was a “critical witness” for the

State, this Court held, the defendant should have been able to cross-examine him or

introduce extrinsic evidence “of what appeared to be the strongest motive for Soden to

implicate [the defendant] in the crimes.” Scott, 39 Kan. App. 2d at 61. (Italics added).

This Court reversed and remanded for a new trial.

Here, just as in Scott, the district court excluded relevant impeachment evidence

that (1) Beltch had sought an attorney to assist with reducing his federal prison sentence,

and (2) Beltch had participated as a cooperating individual in another similar criminal

case. (R. II„ 15, 17-18). These conclusions ignored the principal articulated in Scott that

a district court should permit “a more searching examination” and a wider range o f cross-

examination when the State’s case relies on one material witness. Scott, 39 Kan. App. 2d

at 61 (quoting Rowland. 172 Kan. at 229). The district court erred in preventing defense

counsel from cross-examining Beltch about the strongest motive for Beltch to implicate

Ms. Hubbard, to reduce his federal prison sentence.

Although under Federal Rule of Criminal Procedure 35, Beltch could not seek to

reduce his federal prison sentence until after the conclusion o f the present case, evidence

11

that Beltch had actually already sought an attorney to help him reduce his sentence in the

future was relevant to show how serious he was about reducing his sentence and that this

was a motive for his testifying against Ms. Hubbard. If Beltch had also testified against a

defendant in another similar case, hoping to ultimately receive the similar result o f a

reduced prison sentence, evidence o f that participation was relevant to reveal his ultimate

goal for testifying.

Further, the exclusion o f the evidence in the present case was not harmless.

Because this error implicates Ms. Hubbard’s fundamental right to a fair trial guaranteed

by the Sixth and Fourteenth Amendments to the United States Constitution, this Court

can only declare the district court’s error to be harmless if it is “persuaded beyond a

reasonable doubt that there was no impact on the trial’s outcome, i.e., there is no

reasonable possibility that the error contributed to the verdict.” State v. Ward. 292 Kan.

541, 565-68, 256 P.3d 801 (2011). The State has the burden of demonstrating that the

error did not contribute to the verdict. Ward. 292 Kan. at 565-68.

In the present case, Beltch was the State’s only witness that supported its theory

o f the case that Ms. Hubbard sold him crack cocaine. The credibility o f Beltch was

crucial to the State's case. Because the jury only convicted Ms. Hubbard o f half o f the

crimes charged, it appears that some jurors believed Ms. Hubbard’s account o f her

interactions with Beltch. By excluding evidence that would further revealed Beltch’s

motives for testifying against Ms. Hubbard and impacted the jury’s opinion o f Beltch’s

credibility, the district court prevented Ms Hubbard from presenting a full and complete

defense. Thus, the State cannot show, beyond a reasonable doubt, that this error did not

impact the trial’s outcome.

12

Conclusion

Because the State relied on one principal witness, the credibility o f whom was

central to its case, the district court erred when it denied Ms. Hubbard an opportunity to

present evidence o f Beltch strongest possible motive for testifying. In doing so, the

district court violated Ms. Hubbard’s constitutional rights to present a full and complete

defense and his Fourteenth Amendment due process right to a fair trial. Because the

State cannot show there is no reasonable possibility that the error contributed to the

verdict, this Court must reverse Ms. Hubbard’s convictions.

Issue III: The prosecutor committed reversible misconduct during closingargument.

Introduction

During her closing argument, the prosecutor told the jury that defense counsel

“harped” on the details o f the search o f Beltch’s car before each controlled buy in order

to support Ms. Hubbard’s “cockamamy [sic] theory” that Beltch had sold cocaine to her.

(R. XV, 562). In doing so, the prosecutor improperly commented on Ms. Hubbard’s

credibility. These comments went beyond the latitude allowed during closing argument

and constituted reversible misconduct that violated Ms. Hubbard’s right to a fair trial.

Standard o f Review and Preservation o f the Issue

Appellate courts review allegations o f prosecutorial misconduct using a two-step

process, first determining whether the comments were “outside the wide latitude allowed

in discussing the evidence,” and, second, deciding whether those comments constitute

plain error, meaning the statements “prejudiced the jury against the defendant and denied

the defendant a fair trial, thereby requiring reversal.” State v. Witten. 45 Kan. App. 2d

544, 552, 251 P.3d 74 (2011) (quoting State v. Tosh. 278 Kan. 83, 85, 91 P.3d 1204

13

[2004]). An appellant need not make a contemporaneous objection to prosecutorial

misconduct in order to preserve the issue for appeal; an appellate court will apply the

same standard regardless o f whether the defendant lodged an objection. State v.

Swinnev. 280 Kan. 768, 779, 127 P.3d 261 (2006).

Analysis

Step 1: The prosecutor’s comments were outside the latitude allowed during closing argument.

Typically, a prosecutor has wide latitude in the language, manner, and

presentation o f closing argument, as long as the argument is consistent with the evidence.

State v. Mann, 274 Kan. 670, 688, 56 P.3d 212 (2002). However, a prosecutor should

refrain from commenting on the credibility o f witnesses. State v. Pabst. 268 Kan. 501,

506, 996 P.2d 21 (2000). “The point of not allowing a prosecutor to comment on the

credibility o f a witness is that expressions of personal opinion by the prosecutor are a

form of unsworn, unchecked testimony, not commentary on the evidence o f the case.”

Pabst. 258 Kan. at 510. “When a case develops that turns on which o f two conflicting

stories is true,” however, “it may be reasonable to argue, based on the evidence, that

certain testimony is not believable.” State v. Pabst. 268 Kan. 501, 507, 996 P.2d 321

[2000]). (Italics added).

The Kansas Supreme Court has held that a prosecutor inappropriately commented

on the credibility o f the defendant in several cases. See, Pabst. 268 Kan. 511. In Pabst,

during closing argument, the prosecutor repeatedly characterized the defendant as a liar,

and even stated at one point, “[T]he State tells you he lied.” Pabst. 268 Kan. at 505-506.

See also, State v. Elnicki. 279 Kan. 47, 57-68, 105 P.3d 1222 (2005) (A prosecutor’s

comments during his closing argument about the defendant’s “yam,” “fairy tale,”

14

“fabrication,” “tall tale,” and “spin,” constituted improper commentary on the

defendant’s credibility.); State v. Jackson, 37 Kan. App. 2d 744, 749-50, 157 P.3d 660

(2007) (A prosecutor’s comments during his closing argument that the defendant’s

testimony was a “doozie” and a “crock” were improper.)

In the present case, as in Elnicki, and Jackson, the prosecutor improperly

commented on the credibility o f Ms. Hubbard. After telling the jury that they could

evaluate the credibility o f Ms. Hubbard, the prosecutor in the present case stated,

And one o f the reasons that [defense counsel] harped so much on this search o f the car that they do before Jim Beltch goes is because he needs it to be a bad search to support this cockamamy [sic] theory that Jim Beltch was actually selling to Tiffany Hubbard instead o f making buys from her. That’s why. That’s why he’s harping on it so much, because it had to support that theory.

(R. XV, 562). (Italics added). In doing so, the prosecutor in the present case,

just as the prosecutors in Elnicki and Jackson, implied that Ms. Hubbard’s account of

what happened with Belch was a lie. Instead of using evidence to support a claim that

Ms. Hubbard was being untruthful, the prosecutor merely restated the evidence

supporting its theory of the case. (R. XV, 562-63). Commenting on a witness’

credibility without providing evidentiary support is improper. Thus, this comment was

error.

Step 2: The prosecutor’s comments constituted plain error.

In the second step o f the two-step analysis, this Court considers three factors in

determining if the prosecutor’s conduct constituted plain error; (1) whether the

misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the

prosecutor’s part; and (3) whether there was no reasonable possibility that the error

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contributed to the verdict. Tosh, 278 Kan. at 93. No single factor controls. Tosh, 278

Kan. at 93. Before factor three can outweigh factors one and two, this Court must believe

beyond a reasonable doubt that prosecutorial misconduct had no effect on the jury’s

verdict. Tosh. 278 Kan. at 93.

A. Gross and Flagrant Conduct

To determine whether the State’s misconduct was gross and flagrant, this Court

must consider whether the misconduct was repeated, emphasized, or violated a long­

standing rule o f prosecutorial conduct. State v. Wells. 296 Kan. 65, 80, 290 P.3d 590

(2012). It is a long-standing rule that a prosecutor cannot improperly comment on

witness credibility. See, Elnicki, 279 Kan. at 57-68; Jackson, 37 Kan. App. 2d at 749-50.

By improperly commenting on Ms. Hubbard’s credibility, the prosecutor violated this

rule. Thus, the prosecutor’s comments were gross and flagrant.

B. Ill Will

To determine whether the State’s misconduct demonstrated ill will, this Court

must consider whether improper comments were deliberate, repeated, or made with

indifference to a court’s ruling. Wells, 296 Kan. at 80. The prosecutor’s comments

appeared to be deliberate. First, the prosecutor began by telling the jury that they could

“look at [Ms. Hubbard] and say, ‘Do I believe her?” ’ (R. XV, 562). After telling the jury

this, the prosecutor proceeded to call Ms. Hubbard’s defense “cockamamy.” (R. XV,

562). This progression indicates that the prosecutor’s comment was not merely

inadvertent, but part o f her argument to the jury about Ms. Hubbard’s credibility. Thus,

this demonstrates ill will.

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C. Impact on the Trial

The State benefitted from this misconduct. As a result, it must show that “there is

no reasonable possibility that the error affected [the defendant’s] substantial rights, i.e.,

that there is no reasonable possibility the error affected the verdict.” State v,

Chanthasene. 293 Kan. 140, 149,261 P.3d 889 (2011).

In the present case, because the jury acquitted Ms. Hubbard o f half o f the charges

against her, and hung on the remaining counts, it is likely that some jurors believed Ms.

Hubbard’s version o f the events. Ms. Hubbard’s credibility was crucial at trial, and the

State’s misconduct could have encouraged the jury to convict Ms. Hubbard o f some

counts based on the prosecutor’s unsupported comment about her credibility. Thus, the

State cannot show that there is no reasonable possibility the error affected the verdict.

Conclusion

During her closing argument, the prosecutor referred to Ms. Hubbard’s testimony

at trial as “cockamamy.” (R. XV, 562). This comment violated that long-standing rule

against improperly commenting on witness credibility and violated Ms. Hubbard’s right

to a fair trial. This Court must reverse.

Issue IV: The district court violated Ms. Hubbard’s statutory and constitutionalright to be present at the critical stages of the proceedings against her.

Introduction

In the present case, the district court held a motion hearing on November 27,

2013, at which Ms. Hubbard was not present. (R. II, 2). Because (1) Ms. Hubbard had a

statutory and constitutional right to be present at this hearing, and (2) the record does not

establish that Ms. Hubbard waived that right, it was error to hold the November 27, 2013,

hearing in Ms. Hubbard’s absence. Moreover, because the district court ruled on the

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State’s motion in limine at that hearing, and Ms. Hubbard was not present to assist in her

defense, the State cannot show, beyond a reasonable doubt, that there is no reasonable

possibility that the error contributed to the verdict. Thus, this Court must reverse Ms.

Hubbard’s convictions.

Preservation o f the Issue

Typically, appellate courts will not consider issues raised for the first time on

appeal. State v. Warledo. 286 Kan. 927, 938, 190 P.3d 937 (2008). However, three

exceptions to this rule exist, including (1) where the issue involves only a question o f law

arising on proved or admitted facts and is finally determinative o f the case; (2) where

consideration o f the issue is “necessary to serve the ends o f justice or to prevent denial of

fundamental rights;” and (3) where this Court may uphold a judgment o f the district court

even though the district court may have relied on the wrong ground or assigned a wrong

reason for its decision. State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).

Although defense counsel in the present case did not object to holding a motion

hearing without Ms. Hubbard’s presence, this issue involves only a question of law

arising on proved or admitted facts and is finally determinative of the case. There is no

dispute that Ms. Hubbard was not present at the November 27, 2013, motion hearing.

Ms. Hubbard’s argument that she had a right to be present at the motion hearing involves

interpretation o f statutory and constitutional law and relies on facts that are apparent from

the record on appeal. Moreover, a favorable decision on this issue would result in

reversal o f Ms. Hubbard’s convictions. Thus, this Court may reach this issue under the

first exception outlined in Hawkins, 285 Kan. at 845.

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Standard o f Review

The claim that a defendant was deprived o f her statutory and constitutional right

to be present during a portion o f the criminal proceedings against her raises a legal

question that is subject to unlimited review on appeal. State v. Engelhardt, 280 Kan. 113,

121, 119P.3d 1148 (2005).

Analysis

The November 27, 2013, motion hearing was a critical stage.

A criminal defendant has the right to be present at all critical stages in the case

against her. The Fourteenth Amendment guarantees a criminal defendant a due process

right to be present at all “critical stages” in a prosecution. Rushen v. Spain, 464 U.S.

114, 117, 78 L.Ed.2d 267, 104 S.Ct. 453 (1983). The right to be present also implicates

confrontation rights and due process rights. State v. McGinnes. 266 Kan. 121, Syl. 1 1,

967 P.2d 763 (1998). The United States Supreme Court has not offered a comprehensive

definition o f a “critical stage” for constitutional purposes, but it entails “proceedings

between an individual and agents of the State”— whether formal or informal or in court or

in some other setting— with a “trial-like” confrontation “at which counsel would help the

accused ‘in coping with legal problems or . . . meeting his adversary.’” Rothgerv v.

Gillespie County, 554 U.S. 191, 212 n. 16, 171 L.Ed.2d 366, 128 S.Ct. 2578 (2008)

(quoting United States v. Ash. 413 U.S. 300, 312-13, 37 L.Ed.2d 619, 93 S.Ct. 2568

[1973]). In addition to the constitutional right to be present, Kansas criminal defendants

have a statutory right to be present at and participate in a hearing on any motion. K.S.A.

22-3208(7); K.S.A. 22-3405.

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Here, at the November 27, 2013, motion hearing, the State argued its motion in

limine, in which it requested that the district court (1) limit cross-examination of Beltch

about whether he was seeking an attorney to assist him in reducing his federal prison

sentence and (2) exclude evidence o f Reese’s criminal charges. (R. I, 43; R. II, 2-3).

Defense counsel opposed portions of the State’s motion, making the hearing adversarial,

and the district court resolved legal issues that would impact the evidence at trial. Thus,

under both the constitutional and the statutory definitions, the November 27, 2013,

motion hearing was a “critical stage” at which Ms. Hubbard had a right to be present.

The record does not establish that Ms. Hubbard waived her right to be present.

A criminal defendant’s statutory and constitutional right to be present is a

personal right, and defense counsel cannot waive that right, unless “the defendant and

counsel have previously discussed the matter and agreed upon the waiver.” State v.

Verser, 299 Kan. 776, 326 P.3d 1046, 1055 (2014). See also, State v. Larraco, 32

Kan.App.2d 996, 1001, 93 P.3d 725 (2004) (“While an attorney may make

representations to the court which bind the client, defense counsel can only waive the

rights o f clients as long as those rights are not inherently personal, fundamental rights.”)

Mere failure to object to holding a hearing without the defendant’s presence does not

have the defendant’s right to be present. Verser, 326 P.3d at 1055.

In the present case, although defense counsel stated at previous hearings that

attending hearings was difficult for Ms. Hubbard due to living several hours away,

working, and having transportation issues, the record does not reflect that Ms. Hubbard

waived her right to be present at the November 27, 2013, hearing. (R. II, 2; R. IV, 3-4;

R. VIII, 2-4; R. XIV, 119-20). In fact, when defense counsel discussed waiving Ms.

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Hubbard’s presence at the preliminary hearing, he stated, “Well, if there are motions,

obviously, I would have her here.” (R. XIV, 120). Although it is possible that defense

counsel discussed the matter o f Ms. Hubbard’s attendance at the November 27, 2013,

motion hearing with her, and she agreed to a waiver, there is no evidence in the record to

support such a conclusion. (R. II, 2). Without this evidence, it cannot be assumed that

Ms. Hubbard waived her right to be present.

Ms. Hubbard's absence was not harmless.

The violation o f Ms. Hubbard’s right to be present implicates both statutory and

constitutional rights. In cases where both statutory and constitutional rights are

implicated, this Court applies federal constitutional harmless error standard: “error may

be declared harmless where the party benefitting from the error proves beyond a

reasonable doubt that the error complained o f will not or did not affect the outcome o f the

trial in light o f the entire record, i.e., where there is no reasonable possibility that the

error contributed to the verdict.” Verser. 326 P.3d at 1055-56 [quoting State v. Ward,

292 Kan. 541, Syl. 1(6, 256 P.3d801 [2011], cert, denied U .S . , 182 L.Ed.2d

205, 132 S.Ct. 1594 [2012]).

The State cannot show, beyond a reasonable doubt, that there is no reasonable

possibility that Ms. Hubbard’s absence contributed to the verdict. At the November 27s

2013, hearing, the district court addressed the merits o f the State’s motions, which

ultimately impacted the evidence that would be admitted at trial. Ms. Hubbard knew

Reese and Beltch well and could have provided information to defense counsel to support

defense counsel’s arguments regarding the relevance o f the evidence that the State sought

to exclude. Because Ms. Hubbard was not present to assist in her defense, it is

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impossible to conclude that there is no reasonable possibility that the error did not affect

the verdict. Ms. Hubbard’s absence constitutes reversible error.

Conclusion

The district court violated Ms. Hubbard’s statutory and constitutional right to be

present when it proceeded with the November 27, 2013, motion hearing in her absence.

Because it is impossible to conclude that there is no reasonable possibility that the error

did not affect the verdict, this error requires reversal.

Issue IV: The district court erred in ordering Ms. Hubbard to pay $2000.00 inKansas Bureau of Investigation laboratory fees.

In the present case, over defense counsel’s objections, the district court ordered

Ms. Hubbard to pay $2000.00 in Kansas Bureau o f Investigation (KBI) laboratory fees.

(R. V, 25-26). K.S.A. 28-176, however, only authorized the district court to impose

$1200.00 in KBI laboratory fees.

This issue involves interpretation of K.S.A. 28-176. Issues of statutory

interpretation are questions o f law over which appellate courts have unlimited review.

State v. Goeller. 276 Kan. 578, 584, 77 P.3d 1272 (2003) (citing State v. Barnes, 275

Kan. 364, 368, 64 P.3d 405 [2003]).

K.S.A. 28-176, authorizes a district court to impose fees to reimburse laboratory

tests performed by the KBI upon

any person convicted . . . o f a misdemeanor or felony contained in chapters 21, 41 or 65 o f the Kansas Statutes Annotated, and amendments thereto, or a violation of K.S.A. 8-2,144 or 8-1567, and amendments thereto ,. . . to pay a separate court cost of $400 for every individual offense if forensic science or laboratory services . . . are provided, in connection with the investigation, by [ ] [t]he Kansas bureau of investigation^]

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(Italics added).

The Kansas Supreme Court has interpreted K.S.A. 28-176 to only authorize the

imposition o f KBI laboratory fees to pay for laboratory services performed in connection

with an investigation that resulted in a conviction. State v. Goeller, 276 Kan. 578, 578,

77 P.3d 1272, 1273 (2003). In Goeller, the defendant challenged the district court’s

imposition o f KBI fees in his case, arguing that the district court could only impose one

KBI laboratory fee for his entire case. Goeller, 276 Kan. at 584. The Court clarified that

in a multi-count criminal case, a district court may order the defendant to pay the KBI a

fee “for each count on which he or she [1] was convicted and [2] for which forensic

science or laboratory services were rendered or administered.” Goeller, 276 Kan. at Syl.

K 5. The Court explained, “The phrase ‘for each offense’ [in K.S.A. 28-176] is clear;

‘each offense’ means each count on which [the defendant] was convicted.” Goeller, 276

Kan. at 584. (Italics added).

Here, the KBI performed five separate laboratory tests as part o f the investigation

o f Ms. Hubbard. (R. V, 25-26; R. XV, 451 -52). But, because the jury only convicted

Ms. Hubbard o f two o f the distribution counts and the possession count, only three of

those laboratory tests were connected to convictions. (R. I, 47-48; R. V, 25; R. VI, 598-

99). Thus, under the plain language o f K.S.A. 28-176, the district court was only

authorized to impose a $400 fee for three o f the tests, for a total o f $ 1200. By ordering

Ms. Hubbard to pay a KBI fee for counts for which she was charged but not convicted,

the district court ignored the plain language of K.S.A. 28-176. Thus, this Court must

reverse and remand for the imposition o f a $1200 KBI laboratory fee.

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Conclusion

Due to the aforementioned reasons, Ms. Hubbard requests that this Court reverse

her convictions.

Respectfully submitted,

Carol Longenecker Schmidt, #24828Kansas Appellate Defender OfficeJayhawk Tower700 Jackson, Suite 900Topeka, Kansas 66603(785) 296-5484(785) 296-2869 Faxadoservice@sbids.orgAttorney for Appellant

Certificate o f Service

The undersigned hereby certifies that service o f the above and foregoing brief was

made by mailing two copies, postage prepaid, to Charles E Branson, Douglas County

Attorney, 111 E. 11th Lawrence, KS 66044; and by e-mailing a copy to Derek Schmidt,

Attorney General, at ksagappealsoffice@,ag.ks.gov on the 13 day of January, 2015.

Carol Longenecke^§chmidt, #24828