State v. Reyes ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,589
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
BIBIANA REYES,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; AARON T. ROBERTS, judge. Opinion filed February 12,
2021. Affirmed.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Maurice Brewer, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., SCHROEDER and WARNER, JJ.
PER CURIAM: After the State rested its case in a jury trial against Defendant
Bibiana Reyes for possession of methamphetamine with the intent to distribute and
possession of drug paraphernalia, the Wyandotte County District Court quizzed Reyes
about her decision to testify and to offer a guilt-based theory of defense conceding
possession of the drugs and contraband. The Kansas Supreme Court disfavors that sort of
judicial inquiry of criminal defendants. We presume the district court's intrusive
questioning to be judicial error, but Reyes has failed to show actual prejudice calling into
question the jury verdicts finding her guilty as charged.
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CASE HISTORY
Given the narrow issue on appeal, we may briefly sketch the underlying facts. A
police officer stopped the motor vehicle in which Reyes was a passenger in October 2018
because it had expired tags. The officer asked Reyes why she seemed to be acting oddly,
and she replied that she had an outstanding warrant. The officer ran a check on Reyes,
confirmed the warrant, and arrested her. After her arrest, Reyes was searched. She had a
plastic bag that contained 26.85 grams of methamphetamine, two pipes of the kind
commonly used to ingest illegal drugs, and a digital scale. Reyes explained to a detective
that although she sold methamphetamine from time to time when she needed money, the
drugs she had that day were for her own use. She also said she likely would share some
of the methamphetamine with her friends.
At the start of the jury trial in April 2019, Reyes' lawyer told the jurors Reyes
would testify and the evidence would show she had the methamphetamine and the
paraphernalia (the pipes and the scale) but she did not intend to sell the drugs. The State's
evidence tracked the highly condensed account we have set out. In addition, the detective
testified that based on his training and experience users typically buy a gram of
methamphetamine at a time for $20 to $40. The detective also explained drug sellers
rather than those buying for personal use typically have digital scales to measure the
product. But he agreed that users sometimes have scales.
After the State had presented its evidence and outside the presence of the jurors,
the district court spoke directly with Reyes about whether she intended to testify in her
own defense and whether she would admit having the methamphetamine and the
paraphernalia. The prosecutor and Reyes' lawyer were present. The inquiry unfolded this
way:
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"THE COURT: We're still on the record, Mr. [defense counsel]. It certainly
seems like your client is planning to testify at this point; is that correct?
"[DEFENSE COUNSEL]: Yes.
"THE COURT: Miss Reyes, there's a couple things I want to go over with you. I
know Mr. [defense counsel] told you you have the right to testify and that right also
includes not having to testify if you don't wish to do so if you don't think it's in your best
interests. After consulting with your attorney and thinking it over yourself, which do you
feel is in your best interests, to testify on behalf of your own defense?
"THE DEFENDANT: Yes.
"THE COURT: One more thing to go over with you. It certainly seems like the
way the case is going is that your defense is going to be that, yes, I possessed
methamphetamine; yes, it was mine; belonged to me; and also that I used it. Those things
are crimes. It seems like your defense is that these were my drugs, I was using them or
planned to use them, but I did not plan to sell them. That's perfectly fine. Your attorney
can plan any defense that is appropriate for the facts of the case. I just want to make sure
you understand that by making that defense, the fact that you seemed to be saying or
arguing that those narcotics were yours and they were possessed by you, you understand
you are essentially admitting to the crime by making that defense. Do you understand
that?
"THE DEFENDANT: Yes.
"THE COURT: You're okay with that?
"THE DEFENDANT: Yes.
"THE COURT: I just wanted to put that on the record. I understand the strategy
there. That's perfectly appropriate. I wanted to make sure that you do know you have the
right against self-incrimination basically by making this defense. You are waiving that
right, at least as it pertains to the methamphetamine and drug paraphernalia?
"THE DEFENDANT: Yes, sir."
When the jurors returned, Reyes testified that she had the methamphetamine and
the paraphernalia but did not intend to sell the drugs. She explained she often bought
large quantities of methamphetamine because she got a discounted price that way. On
cross-examination, Reyes agreed she did not purchase the methamphetamine she had in
her possession during the traffic stop. She also confirmed she told the detective she
intended to share the methamphetamine with her friends. Apart from testifying, Reyes
presented no evidence.
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The district court instructed the jury on the crime of possession of
methamphetamine with the intent to distribute, the lesser included offense of simple
possession of methamphetamine, and the crime of possession of drug paraphernalia
identified as the pipes and scale. The instructions defined "distribute" as "the actual,
constructive, or attempted transfer from one person to another of some item" and
"includes, but is not limited to, sale, offer for sale or any act that causes some item to be
transferred from one person to another." See K.S.A. 2018 Supp. 21-5701(d) (statutory
definition of distribute); PIK Crim. 4th 57.020 (2014 Supp.). The jury convicted Reyes as
charged.
At a later hearing, the district court sentenced Reyes to serve 54 months in prison
on the felony conviction for possession of methamphetamine with the intent to distribute,
a substantial reduction from the standard guidelines punishment, and placed her on
postrelease supervision for 36 months. The district court ordered Reyes to concurrently
serve a 30-day jail sentence for the misdemeanor paraphernalia conviction. Reyes has
appealed.
LEGAL ANALYSIS
For her sole issue on appeal, Reyes contends the district court's discussion with her
about her intention to testify and the nature of her defense improperly induced her to take
the stand and effectively denied her a fair trial. Although the district court likely erred in
exploring those matters with Reyes, the exchange did not adversely influence the trial or
the verdicts. Any error was harmless.
We begin with two elemental principles. First, criminal defendants have a personal
right to choose to testify or not at trial in their own defense. Although a defendant's
lawyer can and should offer advice on the ramifications of testifying, the decision
belongs to the client. In short, it is not a matter of strategy entrusted to the lawyer. See
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State v. Carter, 270 Kan. 426, 439, 14 P.3d 1138 (2000); State v. Hargrove, 48 Kan. App.
2d 522, 534, 293 P.3d 787 (2013). Second, the decision to plead guilty or not guilty (and,
thus, to go to trial) belongs to the defendant. Carter, 270 Kan. at 439; Hargrove, 48 Kan.
App. 2d at 534. As a corollary to the rule, the Kansas Supreme Court has recognized that
a lawyer may not present a guilt-based defense without the client's approval, since the
decision functionally amounts to offering a guilty plea to some lesser crime to the jury in
the hope of securing an acquittal of a more serious charge. Carter, 270 Kan. 426 at 440-
41.
As a byproduct of those principles, at least some district courts have a practice of
making a record with criminal defendants during trial regarding their decision on
testifying. Typically, district courts inform the defendants they may elect to testify or not,
and the election is theirs personally rather than their lawyers'. Some district courts point
out that the jury will be instructed to draw no negative inference if the defendant declines
to testify. The discussions culminate with the district courts pointedly asking the
defendants to state whether they will testify. See, e.g., State v. Speer, No. 115,632, 2018
WL 4039457 at *10 (Kan. App. 2018) (unpublished opinion); Johnson v. State, No.
114,735, 2017 WL 3836912, at *8 (Kan. App. 2017) (unpublished opinion); State v.
Taylor, No. 106,621, 2013 WL 1234189 (Kan. App. 2013) (unpublished opinion). The
practice ostensibly informs a defendant about the right to testify, something his or her
lawyer should have fully explained anyway. More covertly, however, it also inoculates
the record against a later claim from a convicted defendant that he or she did not
understand the right and, therefore, acted improvidently in choosing either to testify or
not. See, e.g., Drach v. Bruce, 281 Kan. 1058, 1064-67, 136 P.3d 390 (2006).
Here, the district court established that Reyes, after talking with her lawyer,
intended to testify in her own defense. The district court, then, went on to discuss with
Reyes the apparent defense strategy of admitting possession of the methamphetamine
while contesting the intent to distribute. The district court pointedly informed Reyes that
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the strategy entailed the admission of a crime and documented her understanding of its
effect.
The Kansas Supreme Court has strongly discouraged district courts from asking
criminal defendants about their choice to testify or not. Taylor v. State, 252 Kan. 98, 104-
06, 843 P.2d 682 (1992) (recognizing and affirming rule of State v. McKinney, 221 Kan.
691, 694-95, 561 P.2d 432 [1977], that inquiry is "unnecessary and inappropriate"). The
Taylor court identified seven reasons weighing against making such an inquiry. 252 Kan.
at 106 (quoting United States v. Martinez, 883 F.2d 750, 760 [9th Cir. 1989], vacated on
other grounds 928 F.2d 1470 [9th Cir. 1991]). The court recognized the questioning
could impermissibly intrude on defense strategies and might, by emphasizing the right to
testify, dissuade defendants from carefully considering their right against self-
incrimination. Those are mutually exclusive constitutional rights, since the exercise of
one inherently eclipses the other—a criminal defendant cannot both testify in his or her
own defense and avoid self-incrimination by remaining silent (or not testifying). Taylor,
252 Kan. at 106.
In State v. Anderson, 294 Kan. 450, 465-67, 276 P.3d 200 (2012), the court again
endorsed McKinney and Taylor on the way to rejecting the defendant's argument the
district court had a duty to advise him about his right to testify and his right against self-
incrimination and then to secure a choice from him on the record. The district court acted
appropriately in not discussing the matter at all. 294 Kan. at 467.
The rationale of those decisions plainly extends to a district court's inquiry into a
defendant's election of guilt-based trial strategy. The questioning intrudes on strategic
decisions and implicates constitutional considerations bound up in the protection against
self-incrimination and the rights to counsel and to trial. We, therefore, presume the court
would similarly discourage the kind of questioning and commentary the district court
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engaged in with Reyes about the apparent defense strategy of admitting possession of the
methamphetamine.
Despite discouraging the judicial questioning of criminal defendants about their
decisions on testifying, the Kansas Supreme Court declined to label the practice as
invariably error in the quarter century spanning McKinney to Anderson. We reasonably
presume, however, a misleading or especially intrusive district court inquiry would be
error.
The Kansas Supreme Court recently recast the identification and evaluation of
what had been generically termed "judicial misconduct" by carving out what it now
characterizes as "judicial comment error." State v. Boothby, 310 Kan. 619, Syl. ¶ 1, 448
P.3d 416 (2019). As described in Boothby, those errors entail inappropriate statements a
district court makes in front of a jury apart from the recitation of instructions or the
substance of a specific legal ruling. 310 Kan. 619, Syl. ¶ 1. The court described a two-
step analytical process to address an ostensible judicial comment error: (1) Does the
challenged statement fall outside what a district court may properly say, i.e., is it error at
all; and (2) if so, has the complaining party's right to a fair trial been substantially
prejudiced as a result? 310 Kan. at 627. In fashioning the scope of and analytical method
for judicial comment error, the court drew directly from an earlier decision revamping
what had been termed prosecutorial misconduct. 310 Kan. at 627 (citing State v.
Sherman, 305 Kan. 88, 109, 378 P.3d 1060 [2016]). If a judicial comment error adversely
affects a criminal defendant, then the State, as the benefited party, must show beyond a
reasonable doubt that the error did not deprive the defendant of a fair trial, meaning the
outcome, considering the entire record, would have been the same had the error not
occurred. 310 Kan. at 627. The standard for evaluating prejudice realigns the burden of
proof. Under the traditional judicial misconduct standard, the defendant must prove both
the error and actual prejudice. But if the defendant has established a judicial comment
error, the State must show the lack of prejudice. 310 Kan. at 626-27.
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Like this case, Boothby was a criminal proceeding, so we are not attempting to fit
a doctrine developed in a civil case into a criminal case or visa-versa. Unlike Boothby,
however, the district court's comments Reyes challenges were not made in front of the
jury. As outlined in Boothby, a district court's remarks in front of jurors create a sufficient
condition to trigger the judicial comment error rule (apart from formal rulings and the
reading of instructions). But is an audience of jurors a necessary condition? As stated, the
test suggests as much. The district court's discussion with Reyes, however, directly bore
on the trial evidence and, thus, what the jurors would hear in deciding the case. That
arguably ought to be sufficient, in contrast to, for example, a district court's misguided
attempt at humor or otherwise questionable bantering with the lawyers outside the jury's
presence. At least one panel of our court has applied the judicial comment error standard
to combined remarks of a district court both in front of and outside the presence of the
jury. See State v. Webb, No. 119,827, 2020 WL 1969438, at *19-22 (Kan. App. 2020)
(unpublished opinion).
Moreover, the practice at issue here is clearly disfavored and applying the standard
for judicial comment error theoretically ought to provide a strengthened curb. District
courts ought to self-police, lest they inject reversible error—a much more likely prospect
under the judicial comment error standard than the judicial misconduct standard.
Prosecutors would have a disincentive to invite such an inquiry by the district court and a
concomitant positive incentive to object if a district court failed to self-police. (We put to
one side the proper judicial course if a defense lawyer asks to make a record on his or her
discussions with the client about testifying or the use of a guilt-based defense. The issue
is not before us and involves additional considerations.)
We presumptively opt to apply the judicial comment error rule here, since it is
more favorable to Reyes than the traditional judicial misconduct standard. Having elected
that option, we also presumptively conclude without deciding that the exchange between
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the district court and Reyes amounted to judicial comment error. First, of course, the
district court trod on ground the Kansas Supreme Court has strongly suggested should be
left vacant during a criminal trial. Second, the district court didn't just step on the
boundary but plunged deep into the territory, especially with its questions and comments
to Reyes about her defense.
Having thus presumed error, we contemplate whether we can say beyond a
reasonable doubt that the exchange between the district court and Reyes had no material
impact on the jury's guilty verdicts. On appeal, Reyes argues the district court's comments
may have impermissibly influenced her to testify in her own defense and, thus, to forfeit
her constitutional right against self-incrimination as a result. In particular, she points to
the district court's use of the phrases "[t]hat's perfectly fine" and "[t]hat's perfectly
appropriate" to describe the choice of a guilt-based defense to the possession with intent
to distribute charge. Reviewing the entire trial record, we are unpersuaded.
The record indicates Reyes had decided to testify and testify to the guilt-based
defense conceding possession before the trial started. In his brief opening statement at
beginning of the trial, Reyes' lawyer told the jury, "Miss Reyes will testify," and he
proceeded to outline her anticipated testimony, including an admission from the witness
stand to possessing the methamphetamine. In turn, nothing in the record suggests the
lawyer precipitously delivered the opening statement without consulting Reyes or getting
her approval. That would have been extraordinary. So in asking Reyes about her decision
to testify after the State rested its case, the district court did no more than confirm what
seemed obvious. Reyes expressed no hesitation, equivocation, or uncertainty about her
decision to testify. That part of the colloquy supports the idea Reyes understood the
choice she was making and had already arrived at a studied election when the district
court brought the matter up. The exchange did not depict an ambivalent or uninformed
defendant the district court apparently coaxed into testifying.
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Following the inquiry specifically about testifying and Reyes' clear assertion she
intended to testify, the district court then explored the nature of the defense with Reyes.
Notwithstanding the argument Reyes fashions on appeal, we fail to see how that
discussion could have pushed Reyes into a decision she obviously had already made.
Moreover, in context, the district court's remarks about the defense strategy being "fine"
and "appropriate" convey a sense that Reyes could take that tack if she wished and not as
a prediction of likely success. But even if Reyes misperceived the district court's remarks
as a qualitative recommendation of the defense, that misperception simply would have
confirmed the decision Reyes had already made to testify. The comments did not lead her
where she was otherwise reluctant to go. We entertain no reasoned belief the district
court's discussion with Reyes prompted her decision to testify. District courts, of course,
typically should not be offering their general views on the relative strengths or
weaknesses of the theories of prosecution and defense during a criminal trial. See State v.
Plunkett, 257 Kan. 135, 141, 891 P.2d 370 (1995); State v. Larkin, No. 115,985, 2017
WL 6395789, at *13 (Kan. App. 2017) (unpublished opinion).
The record here illustrates why district courts should avoid that type of colloquy.
The endeavor breeds potential error without advancing objectives the Kansas Supreme
Court has assessed to be worth the risk.
More broadly in this case, we are persuaded any error was harmless because the
verdict would have been the same whether or not Reyes testified. The State's case was, in
a word, overwhelming. Reyes indisputably had the methamphetamine, the pipes, and the
scale in her possession. The arresting officers established that element. Moreover, Reyes
admitted as much to the detective shortly after her arrest. And she told him she had sold
drugs from time to time, but she didn't intend to this time. But being of generous spirit,
Reyes told the detective she would surely share the methamphetamine with some of her
friends. That admission established the element of distribution under Kansas law.
Distribution requires only that the defendant transfer illicit drugs to another person, so a
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gift or simply sharing is enough—the crime does not require a sale or other commercial
transaction.
The State's evidence clearly supported each element of possession of
methamphetamine with an intent to distribute. Had Reyes not testified, she undoubtedly
would have been convicted, assuming the jurors applied the law to the evidence. In her
testimony, Reyes denied any intent to sell the methamphetamine—a proposition the jury
easily could have found less than credible—but she went on to confirm her willingness to
share the drugs with her friends. Reyes thereby admitted the elements of the crime in her
own testimony.
In short, Reyes would have been convicted with or without her testimony. We are
persuaded the district court did not influence Reyes' decision to testify, undercutting her
claim of prejudicial error resulting from the colloquy. But even if Reyes chose to testify
specifically because of the district court's comments, any error still would have been
harmless in light of the evidence against her. Reyes has not shown the verdict to be
infirm, unfair, or otherwise subject to reversal.
Affirmed.
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