State v. Lewellyn, 215 P.3d 648 (KS Ct. App. 2009)

State v. Lewellyn, 215 P.3d 648 (KS Ct. App. 2009)

State: Kansas
Date: September 18, 2009
Defendant: Lewellyn


State v. Lewellyn


No. 100,640


215 P.3d 648

September 18, 2009, Opinion Filed



Janine Cox, of Kansas Appellate Defender Office, for appellant.

Robert A. Walsh, county attorney, and Steve Six, attorney general, for appellee.






Per Curiam: Shannon Lewellyn and Doug Schmidt got into a confrontation after a party, and when Lewellyn thought Schmidt was going to hit him, he punched Schmidt in the face. Schmidt fell backwards and hit his head on the pavement. This impact fractured his skull, and he died a few days later. Lewellyn was convicted of involuntary manslaughter.

Lewellyn appeals, claiming jury-instruction error. But appellate courts can only reverse a conviction if the instructions as a whole were misleading or did not fairly state the law as applied to the facts of the case. And in this case, the instructions supported both Lewellyn’s claim that he thought he needed to punch Schmidt to defend himself as well as the evidence that Lewellyn’s comments to Schmidt may have provoked him.

Lewellyn also claims prosecutorial misconduct and an error in confirming the jury’s verdict with members of the jury. We have also reviewed those claims, but we do not find any error. Lewellyn’s final claim is that the district court failed to consider sending him to the Labette Correctional Conservation Camp. Lewellyn is right that the district court failed to demonstrate that it considered Labette, but the point is now moot because Labette has been closed by the Department of Corrections.

Factual Background 

On the evening of September 7, 2007, Schmidt was at a bar in Concordia with some friends. Lewellyn and his friend were also at the bar that evening. Although the two didn’t interact at the bar, Lewellyn indicated to his friend that there might be trouble when he saw Schmidt. There had been bad blood between the two men for about a year because Lewellyn previously had helped Schmidt’s ex-wife move her belongings.

When the bar closed around 2 a.m., Schmidt and his friends left the bar to go to a nearby house party. Lewellyn also ended up at the same house party but decided to leave when he saw Schmidt there. As the party at the house was breaking up, Schmidt and Lewellyn got into a confrontation. According to Lewellyn, he was outside the house when Schmidt came up behind him and called him a “pussy.” Lewellyn also said that Schmidt said, “Come on, hit me, you know you want to.” Other witnesses also saw Schmidt and Lewellyn standing face-to-face yelling at each other and saw Schmidt acting aggressively.

During this initial confrontation between Schmidt and Lewellyn, C. J. Walker approached. When Schmidt made a comment about Walker’s ex-girlfriend, Walker shoved him. Schmidt fell down, got back up, and Walker pushed him again. This happened several times until Walker called off the fight and walked away.

After Walker began walking away, Schmidt and Lewellyn began moving apart. According to some witnesses, Schmidt and his friend were walking away when Lewellyn started calling him names. When Schmidt heard this, he threw down the shoes he was carrying and started back towards Lewellyn with his hands up. Lewellyn stated that he had turned to walk away when he felt something right behind him. As Lewellyn turned, Schmidt was right in his face with his arms up. Lewellyn then punched Schmidt in the face because he thought Schmidt was going to hit him.

When Lewellyn hit Schmidt, Schmidt fell over backwards and hit the pavement. After he hit the pavement, Schmidt was nonresponsive and bleeding from his ear. Schmidt was immediately taken to the hospital, but he never fully regained consciousness and died due to a blunt-force injury to his head. The injury was consistent with striking his head on the pavement.

A jury found Lewellyn guilty of involuntary manslaughter in the death of Schmidt. He was sentenced to 32 months in prison.

I. The District Court’s Jury Instructions Were Not in Error. 

A. The District Court Properly Denied Lewellyn’s Request for a No-Duty-to-Retreat Instruction. 

After the evidence was presented at trial, the State objected to including a no-duty-to-retreat instruction, based on PIK Crim. 3d 54.17-A. That instruction reads: “A person who is not engaged in an unlawful activity and who is attacked in a place where [he] has a right to be has no duty to retreat. [He] has the right to stand [his] ground and to meet force with force.” Lewellyn’s attorney argued that the instruction was warranted so that the jury knew that Lewellyn wasn’t obligated to keep backing away during the confrontation. The court declined to give the instruction.

The district court is required to instruct the jury on the law applicable to the defendant’s theory if there is supporting evidence for that theory. On review of a district  court’s denial of an instruction request, the appellate court views the evidence in the light most favorable to the party requesting the instruction. State v. Hayden, 281 Kan. 112, 131-32, 130 P.3d 24 (2006).

The Notes on Use for the no-duty-to-retreat instruction state that it is appropriate in cases where there is evidence that an attacker first used force against the defendant. PIK Crim. 3d 54.17-A, Notes on Use; see State v. Scobee, 242 Kan. 421, 428-29, 748 P.2d 862 (1988); State v. Deal, 41 Kan. App. 2d 866, 879-80, 206 P.3d 529 (2009). Thus, for Lewellyn to be entitled to this instruction, the evidence in his case must support the conclusion that Schmidt first attacked Lewellyn.

But even when viewing the evidence in a light most favorable to Lewellyn, it’s difficult to say that Schmidt first used force against Lewellyn. Although Schmidt was the one who initiated the encounter between himself and Lewellyn, Schmidt never used force against Lewellyn. Lewellyn did testify that he “felt something” as he was walking away, and when he turned and saw Schmidt right in front of him, he “sensed something was coming at [him].” But when pressed about what he felt, Lewellyn described it as a feeling and said it was more like a sixth sense. He said it wasn’t like a tap, and he could not say there was any actual physical contact between him and Schmidt up to that point. Thus, although evidence was ample that Schmidt approached Lewellyn, this evidence isn’t sufficient to support a conclusion that Schmidt used actual physical force against Lewellyn.

Lewellyn argues in his brief that the recent change in the statutory authority for this instruction expands its reach to his situation because it now allows someone who is where “such person has a right to be” to stand his ground even if he’s not at home. See Deal, 41 Kan. App. 2d at 879-80 (noting the 2006 enactment of K.S.A. 21-3218 modifies the circumstances under which the no-duty-to-retreat rule is applicable in Kansas and stating that it is now “appropriate when there is evidence that the attacker first used force against the defendant”). Lewellyn argues that he had a legal right to be in the alley where the confrontation between he and Schmidt took place. But this does not change the fact that the evidence does not support the conclusion that Schmidt used force against Lewellyn.

Even if Schmidt’s actions did amount to him using force against Lewellyn and PIK Crim. 3d 54.17-A was appropriate in this case, we cannot consider the requested instruction in isolation when reviewing whether the district court erred in refusing an instruction. The court must consider all of the instructions together as a whole. If the instructions as a whole properly and fairly state the law as applied to the facts of the case and the jury could not reasonably be mislead by them, the instructions are not reversible error even if they are in some way erroneous. State v. Jackson, 280 Kan. 541, 549-50, 124 P.3d 460 (2005); see Deal, 41 Kan. App. 2d at 879. Additionally, a claim of error cannot be sustained if the instructions given cover the substance of the requested instruction. Hayden, 281 Kan. at 131-32.

Although the district court did not instruct the jury according to PIK Crim. 3d 54.17-A, it did give PIK Crim. 3d 54.17. Instruction 11 given to the jury, based on PIK Crim 3d. 54.17, stated:

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

“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.

“When use of force is permitted as self-defense, there is no requirement to retreat.”

The Notes on Use for PIK Crim. 3d 54.17 state that this instruction should be given when the evidence at trial shows that the defendant reasonably believed force was necessary to defend himself or herself. See State v. Sims, 265 Kan. 166, 168-69, 960 P.2d 1271 (1998). The Notes on Use also state the instruction should be given if there is no evidence that the defendant was attacked.

This instruction was appropriate under the facts of this case because, although Schmidt had not attacked Lewellyn, Lewellyn did believe that Schmidt posed an imminent threat. Lewellyn punched Schmidt because he believed he needed to do so to protect himself. Further, to the extent that Lewellyn argues the jury should have been informed that he had no duty to retreat, the self-defense instruction covered that.

Accordingly, the district court did not err in denying Lewellyn’s requested no-duty-to-retreat instruction because the facts of the case did not indicate that Schmidt had used force against Lewellyn. Further, the instructions as a whole fairly stated the law as applied to the facts of the case, and thus there was no reversible error.

B. The District Court’s Inclusion of a Provocation-as-an-Excuse-for-Retaliation Instruction and an Initial-Aggressor’s-Use-of-Force Instruction Was Not an Instruction Error. 

Lewellyn objected to the inclusion of PIK Crim. 3d 54.21 (provocation of force as an excuse for retaliation) and PIK Crim. 3d 54.22 (initial aggressor’s use of force) on the grounds that there was no evidence that Lewellyn provoked the use of force. The district court disagreed and included both instructions.

The same standard of review noted above still applies. Lewellyn’s claim of error regarding these instructions cannot be sustained if the instructions as a whole properly and fairly stated the law as applied to the facts of the case and could not have reasonably misled the jury. State v. McKissack, 283 Kan. 721, 732, 156 P.3d 1249 (2007); Deal, 41 Kan. App. 2d at 879.

The provocation-as-an-excuse-for-retaliation instruction given at Lewellyn’s trial stated: “A person is not permitted to provoke an attack on someone else with [the] specific intention to use such attack as a justification for inflicting bodily harm upon the person he provoked and then claim self-defense as a justification for inflicting bodily harm upon the person he provoked.” The initial-aggressor’s-use-of-force instruction given at trial stated:

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

“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

“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 comments on both of these instructions state that it is not error to give these instructions if there is a question of fact for the jury of whether the defendant was an aggressor. PIK Crim. 3d 54.21, Comment; PIK Crim. 3d 54.22, Comment.

In State v. Ricks, 257 Kan. 435, 435-37, 894 P.2d 191 (1995), the defendant also objected to the inclusion of a initial-aggressor’s-use-of-force instruction. There, the defendant claimed that he thought the victims had guns when he shot them. The court concluded that it was not error to give the instruction because the jury had to decide who the initial aggressor was under the facts of the case. Ricks, 257 Kan. at 438. The district court relied on Ricks in deciding to give this instruction in Lewellyn’s case, but Lewellyn argues it is distinguishable because Ricks did not also involve the provocation-as-an-excuse-for-retaliation instruction.

However, State v. Hunt, 257 Kan. 388, 894 P.2d 178 (1995), did involve both instructions, and the court reached the same conclusion as in Ricks. The court in Hunt concluded that “the question of whether the defendant was an aggressor was one for the jury. If the jury did not find that the defendant was an aggressor, it could disregard the limit on the defendant’s right to use self-defense.” Hunt, 257 Kan. at 394.

In this case, there was evidence that Schmidt approached Lewellyn and that Lewellyn thought Schmidt was going to hit him. But there was also evidence that Lewellyn provoked Schmidt by calling him names.  Taylor Hilburn stated that Lewellyn was taunting Schmidt and trying to “get under his skin.” Based on this evidence, the jury was entitled to decide whether Lewellyn provoked Schmidt. Just as in Hunt, if the jury concluded that Lewellyn did not provoke Schmidt, it could have disregarded the limit on the right to use self-defense. The district court did not err in giving these instructions.

II. The Prosecutor Did Not Commit Misconduct in Closing Arguments. 

Lewellyn’s next argument on appeal is that the prosecutor committed misconduct in closing arguments by commenting on facts not in evidence and by passing judgment on Lewellyn’s credibility.

A contemporaneous objection to alleged prosecutorial misconduct in argument is not required to preserve the issue for appeal; an appellate court will apply the same standard of review regardless of whether the defendant lodged an objection. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007). Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. Albright, 283 Kan. at 428. In the second step of the two-step analysis, the appellate court considers three factors:

“(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct an overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial], have been met. [Citations omitted.]” Albright, 283 Kan. at 428.

In this case, however, analysis of the prosecutor’s comments using these three factors is not required because none of the prosecutor’s comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence.

The Prosecutor Did Not Comment On Facts Outside the Evidence. 

Lewellyn first argues that the prosecutor, in closing arguments, stated facts not in evidence when he commented on what Lewellyn was thinking as he was watching Walker push Schmidt. The prosecutor stated:

“Now, who is watching this? Who is seeing this? This (indicating) man’s seeing this, and it’s registering, it’s going through his mind what he’s watching here, and what’s he seeing? I got me a victim here. I’ve got me a guy, first of all, that appears intoxicated. Makes [a] pretty good victim. There ain’t going to be much of a fight.

“Second of all, I’ve got a victim that he’s passive, he ain’t going to hit anybody, he’s getting shoved around, and he’s not even throwing a punch. It’s going to be easy. This is what’s going on in his mind, ‘This is going to be easy.'”

Lewellyn argues this was improper because the prosecutor went beyond the facts presented at trial and told the jury what Lewellyn was thinking.

While a prosecutor is not allowed to argue facts not in evidence during closing arguments, he or she has considerable latitude in discussing the evidence and is allowed to draw reasonable inferences from the evidence that was presented during trial. State v. Carter, 278 Kan. 74, 80, 91 P.3d 1162 (2004). In this case, Lewellyn testified that he watched the shoving match between Walker and Schmidt. Lewellyn acknowledged that Schmidt fell down each time Walker pushed him even though Schmidt was bigger than Walker, that Schmidt “just took it,” that Walker “was just knocking him around,” and that Schmidt appeared to be intoxicated. Although Lewellyn did not testify that this made him think that Schmidt would make an easy target, it’s not an unreasonable inference to make based on the fact that Lewellyn acknowledged watching a noticeably intoxicated Schmidt get pushed around by a smaller man. In this situation, this comment was not outside the wide latitude afforded prosecutors in discussing the evidence and thus did not amount to misconduct.

Lewellyn also argues that the prosecutor stated facts not in evidence when he said, referring to the punch:

“Oh, no. This was a shot. This was a shot.

“And [Lewellyn] told you he knows something about hitting, and he’s not going to put a little blow into somebody, one shot. If he’s going to hit them, he’s going to hit him, and he nailed him, and he went backwards, and that head hit–hit the pavement.”

 On this point Lewellyn argues that this was misconduct because the only testimony about the punch was Lewellyn’s testimony that he “didn’t put [his] shoulder into it” and that no one else testified to seeing the punch thrown. This isn’t true, however. At least three witnesses other than Lewellyn testified to seeing Schmidt get punched. Brett Jackson testified that he saw Lewellyn strike Schmidt with his left fist, causing Schmidt to fall and hit the ground, and that “it just kind of shocked everybody.” Jackson also responded affirmatively when asked if Lewellyn “popped him hard.” Dale Deneault testified, “Shannon hit him with his left hand, and Doug went to the ground.” And although Hilburn indicated that he couldn’t see the exact spot where the punch landed on Schmidt’s face, he did see Lewellyn hit him. According to Hilburn, Lewellyn “torqued back and hit him pretty hard” and that Schmidt then “toppled straight over.” This testimony supports the prosecutor’s statement that the punch was a “shot”–more than one witness testified that the punch was hard and that Schmidt immediately fell to the ground.

Lewellyn contends that the prosecutor’s statement was improper because it commented on Lewellyn’s knowledge about hitting. But Lewellyn testified that the punch was not a hard punch because he didn’t put his shoulder into it, that he didn’t take a full swing, and that he did not get a full hit in. Based on this testimony, it’s not unreasonable to infer that Lewellyn knows something about hitting. Accordingly, the prosecutor’s comments about the punch were not an impermissible comment on facts not in evidence.

Lewellyn’s third claim that the prosecutor stated facts not in evidence involved the prosecutor’s statement that “Shannon Lewellyn was looking for a fight. He was going to punch somebody, and he was going to punch Doug Schmidt.” It’s true that Lewellyn never testified that he was looking for a fight that evening or that he wanted to punch anyone. But there was evidence that Schmidt and Lewellyn were not on good terms. Lewellyn had told friends earlier that evening after seeing Schmidt that “there might be some problems” or that Schmidt might “start shit” with him. Hilburn also testified that,  as he and Schmidt were walking away, Lewellyn was yelling things at Schmidt “trying to get under his skin.” Thus, the evidence showed that Lewellyn knew that there could be trouble between himself and Schmidt but that Lewellyn still tried to verbally provoke him. Based on this, it’s not unreasonable to infer that Lewellyn was looking for a fight. There was no prosecutorial misconduct on these grounds.

The Prosecutor Did Not Impermissibly Comment on Lewellyn’s Credibility. 

Lewellyn also claims that the prosecutor implied that Lewellyn was lying when the prosecutor stated, “This Defendant heard all the witnesses before he takes the stand. He knows as much as anybody at all before he takes the stand, and you keep that in mind when you analyze.” Referring to this knowledge, the prosecutor said of Lewellyn that “he can read into it strategies.” The prosecutor, in discussing some discrepancies regarding the location of the two scuffles involving Schmidt, Walker, and Lewellyn, also referred to Lewellyn’s testimony as a “story” (as in, “If . . . the Defendant’s story is to be believed” and “If you’re going to buy that story ….”).

A prosecutor is not permitted to express a personal opinion on the credibility of witnesses. State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000). But the statements made here do not amount to misconduct. Other cases have held that suggestions that a defendant has had time to reflect on the evidence do not amount to misconduct. In State v. Davis, 275 Kan. 107, 122, 61 P.3d 701 (2003), the prosecutor stated in closing arguments that statements made in the heat of the moment are more likely true “‘than something that comes ten months later with plenty of time for reflection and creation.”‘ The court noted that the prosecutor did not blatantly call the defendant a liar and that there was no prosecutorial misconduct. Davis, 275 Kan. at 122-23.

Further, the prosecutor’s reference to Lewellyn’s testimony as a “story” in this context was not so much a comment on Lewellyn’s credibility as it was calling attention to the fact that Lewellyn’s version of events differed from other accounts. Had the prosecutor used the word “version” instead of “story,” there would be no legitimate claim of misconduct.

A certain level of rhetoric is allowed in discussing the evidence and the defendant’s version of events. See Albright, 283 Kan. at 429 (comparing the defendant’s tactic to smoke); State v. Baker, 281 Kan. 997, 1014-15, 135 P.3d 1098 (2006) (the prosecutor’s statement that the defendant’s “story ‘defies physics, it defies logic, and it certainly defies common sense'” did not amount to misconduct); State v. Duke, 256 Kan. 703, 718-20, 887 P.2d 110 (1994) (finding that prosecutor’s statement that there had “‘been a lot of smoke in this case'” and reference to the defendant’s case as “‘smoke and mirrors'” was within the bounds of permissible rhetoric in arguing the State’s case); State v. Blanchette, 35 Kan. App. 2d 686, 707, 134 P.3d 19, rev. denied 282 Kan. 792 (2006), cert. denied 549 U.S. 1229, 127 S. Ct. 1302, 167 L. Ed. 2d 115 (2007) (using the phrase “quantum leap” to describe the inferences required by the defendant’s explanation was not prosecutorial misconduct). But a prosecutor’s direct statement or use of euphemisms to imply that the defendant was lying is not proper unless there’s evidence that the defendant lied in some specific respect. Compare State v. Scott, 286 Kan. 54, 82-83, 183 P.3d 801 (2008) (prosecutor’s statement that the defendant “‘continues to deceive, he keeps on lying'” was proper as a fair statement of the evidence because it referred to the defendant’s denial of knowing the identity of his accomplice before later admitting he knew him) and State v. Smallwood, 209 P.3d 764, 2009 WL 1858234, at *10 (Kan. App. 2009) (unpublished opinion) (prosecutor’s comment that “‘you know that he lies to the police'” was proper when evidence was presented that the defendant admitted having lied to the police) with State v. Elnicki, 279 Kan. 47, 62, 105 P.3d 1222 (2005) (repeated use of phrases like “‘yarn,'” “‘fairy tale,'” “‘fabrication,'” “‘tall tale,'” and “‘spin'” was improper) and State v. Jackson, 37 Kan. App. 2d 744, 749-51, 157 P.3d 660, rev. denied 285 Kan. 1176 (2007) (reference to the defendant’s claims as “‘doozies'” or a “‘crock'” was improper, although reversal was not warranted). The word “story” by itself does not imply fabrication or lying, and thus the facts of this case are more akin to those where there was no prosecutorial misconduct. The prosecutor’s use of the word did not amount to misconduct.

III. The District Court Did Not Err in Polling the Jury. 

Lewellyn also argues that the district court improperly phrased the question when it polled the jury. After the jury announced its verdict, the district court asked the jurors if all of them agreed with the verdict, and the jurors answered yes. When Lewellyn’s attorney requested that the jurors be polled individually, the clerk asked each of the jurors, “[D]o you agree that the verdict read by me was the verdict of the Jury by agreement of 12 members of the Jury?” Each juror answered affirmatively. Lewellyn argues on appeal that the jurors should have been asked, “Is this your verdict,” and that phrasing the question otherwise compromised his right to an impartial jury.

The Kansas Supreme Court has recently dealt with a very similar situation and concluded that a defendant waives the claim that the jury was improperly polled when he or she makes no objection. In State v. Holt, 285 Kan. 760, 766, 175 P.3d 239 (2008), after the verdict was read, the district court asked the presiding juror, “‘This is the verdict of the jury?'” and “‘It was a unanimous verdict?'” The juror answered yes. The clerk then polled each juror individually and asked, “‘Is this the verdict of the jury?'” Each juror answered yes, and the jury was dismissed when no one raised any objections. Holt, 285 Kan. at 766. The defendant appealed and argued that it was error to ask “‘Is this the verdict of the jury?'” instead of “‘Is this your [i.e., individual] verdict?'” Holt, 285 Kan. at 766. The court in Holt did state that a “better practice” when polling jurors would be “to poll the jury in such a way as to ensure that each juror is answering for himself or herself, e.g., asking, ‘Is this your verdict?'” Holt, 285 Kan. at 770-71. Nevertheless, the court held that the defendant did not preserve the issue for appeal because of his failure to timely object. Holt, 285 Kan. at 771. The court noted that the defendant had 12 opportunities to object, that nothing about the question asked or the jurors’ responses raised any concerns, and that the failure to object prevented the district court from correcting any problems before dismissing the jury. Holt, 285 Kan. at 769.

Like the defendant in Holt, Lewellyn made no contemporaneous objection when the jury was polled. Lewellyn tries to distinguish his case from Holt by arguing that raising the issue in the motion for a new trial was a sufficient objection. Objecting to evidence in a posttrial motion does not satisfy the contemporaneous-objection rule. See State v. King, 288 Kan. 333, 342, 204 P.3d 585 (2009) (“‘The purpose of the rule requiring a timely and specific objection is to give “‘the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial.'”‘”); State v. Cook, 286 Kan. 1098, 1109, 191 P.3d 294 (2008) (“[T]he rationale behind the [contemporaneous-objection rule] is not fulfilled when the objection is first raised after the trial has been completed. ‘The importance of the contemporaneous objection rule is that it gives the trial court the opportunity to conduct the trial without the use of tainted evidence.'”). The reasoning of Holt does not suggest that raising the issue after the fact in a motion for a new trial–after the jury has been discharged–can preserve the claim. Holt noted that K.S.A. 21-3421, the statute that mentions polling a jury, doesn’t contain a contemporaneous-objection requirement, but such a requirement was imposed based on caselaw. The court also emphasized the importance of requiring a contemporaneous objection because the district court is in a better position to remedy the problem, and any defect can only be cured before discharging the jury. Holt, 285 Kan. at 768-69. Standing by silently when the jury is polled, as Lewellyn and his trial counsel did, and then raising the issue for the first time after the jury has been dismissed prevented the district court in this case from doing anything to resolve any concerns about the jury’s verdict.

In Holt, the court noted that Holt’s attorney, for the first time at oral arguments on appeal, argued that the court should consider the jury polling issue despite the lack of objection under the exception to the contemporaneous-objection rule allowing for new theories necessary to serve the ends of justice. But the court in Holt found that this exception should not apply because the defendant had failed to show actual harm because the jury was instructed that its verdict must be unanimous, the presiding juror confirmed that the verdict was unanimous, and there were no comments or affidavits from the jurors indicating that it was anything other than a unanimous verdict from an impartial jury. Holt, 285 Kan. at 770. The same would be true in this case.

The jury in Lewellyn’s case was instructed that its verdict must be unanimous. The jurors all answered yes when asked if they all agreed with the verdict. Although Lewellyn repeatedly asserts in his brief that the improper  polling compromised his right to an impartial jury, he never explains how. His brief does quote the motion for a new trial where Lewellyn’s trial counsel wrote, “In observing the jurors when asked it was clear at least one juror was struggling with the decision.” But this after-the-fact observation–which only raises the question as to why no objection was made at the time if it was “clear” that jurors were struggling with the verdict–is not sufficient for the appellate court to conclude that the jury’s verdict was something other than unanimous or impartial.

IV. The District Court’s Error in Failing to Demonstrate Consideration of Labette as a Sentencing Opinion Is Moot. 

Lewellyn last argues that the district court erred in failing to consider placing him in the Labette Correctional Conservation Camp program in violation of K.S.A. 21-4603d(g). Lewellyn’s conviction was for a severity-level-5 offense, and his criminal history score was I. Thus, under K.S.A. 21-4603d(g), the district court was required to consider placement at Labette. This consideration must be done on the record. State v. Schick, 25 Kan. App. 2d 702, 704, 971 P.2d 346 (1998), rev. denied 266 Kan. 1114 (1999). The language of the statute is mandatory, and if the record reflects that the district court failed to consider Labette as an option for an eligible defendant, we have previously recognized that the sentence must be vacated and remanded for resentencing. E.g., State v. Owens, 31 Kan. App. 2d 519, 521, 67 P.3d 164 (2003).

In this case, the district court did not show consideration of Labette on the record. Thus, under these circumstances, Lewellyn would generally be entitled to have his sentence vacated and his case remanded for resentencing. The State argues that the district court’s consideration and rejection of Lewellyn’s motion for a nonprison sentence satisfies the requirement that it consider Labette. But Lewellyn’s motion requested a border-box disposition of probation instead of prison, and the district court’s denial of that request only concluded that Lewellyn’s drinking habits made him a threat to the community. The district court did not show on the record that it considered Labette or any other conservation camp or community intermediate sanction center as provided for in K.S.A. 21-4603d(g). See Schick, 25 Kan. App. 2d at 703 (district court’s reasoning why defendant would not benefit from a treatment program does not satisfy requirement that district court consider placement at Labette).

Despite this failure to comply with K.S.A. 21-4603d(g), however, no purpose would be served by remanding the case to consider Labette as an option because that option no longer exists. As our court recognized in State v. Johnson, 42 Kan. App. 2d 356, Syl. P 2, 211 P.3d 861 (2009), the Labette Correctional Conservation Camp closed on June 30, 2009. Remanding this case for consideration of the Labette option would be an exercise in futility, and we find that Lewellyn’s claim that the Labette option should be considered is now moot.

The judgment of the district court is therefore affirmed.

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