                          NOT DESIGNATED FOR PUBLICATION

                                             No. 120,985

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                   LARRY KENNETH APPLEBEE,
                                          Appellant.


                                  MEMORANDUM OPINION

       Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed March 13, 2020.
Affirmed.


       Rick Kittel, of Kansas Appellate Defender Office, for appellant.


       Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before GARDNER, P.J., BUSER, J., and BURGESS, S.J.


       PER CURIAM: Following a jury trial, Larry Kenneth Applebee was convicted on
charges of possession of methamphetamine and unlawful use of drug paraphernalia.
Applebee timely appeals his convictions, arguing that the State committed prosecutorial
error when it improperly presented evidence of Applebee's post-Miranda silence during
its case-in-chief and its closing arguments, violating the principles set forth in Doyle v.
Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). Finding no error, we affirm.




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                       FACTUAL AND PROCEDURAL BACKGROUND

       On September 18, 2017, Topeka Police Officers William Lister and Derek Child
stopped Applebee after they observed large cracks in the windshield of Applebee's Chevy
Suburban. The officers believed the cracks substantial enough to obstruct Applebee's
view while driving. During the stop, Officer Lister engaged Applebee, while Officer
Child spoke with the passenger in the front seat of the vehicle. The officers also noticed a
large dog in Applebee's car. At Officer Lister's request, Applebee provided Lister with his
personal information. Officer Lister returned to his patrol car to run Applebee's
information while Officer Child continued speaking with the passenger in the front seat.
During this time, Topeka Police Sergeant Daniel Wilson arrived on the scene to supervise
the stop.


       While checking Applebee's information, Officer Lister learned that Applebee had
an active arrest warrant. Officer Lister approached the Suburban again and arrested
Applebee. Up to that point, all three officers had looked inside Applebee's vehicle for any
signs of illegal items in plain view but uncovered nothing. After Applebee was arrested
and removed from the vehicle, Officer Child continued talking to the passenger sitting in
the front seat of the Suburban for several minutes. While Officer Child supervised the
passenger during much of the stop, at one point he went back to the patrol vehicle to
convene with Officers Lister and Wilson, leaving the passenger unattended in the
Suburban for approximately two or three minutes.


       After having left the passenger unattended, Officer Lister approached the
Suburban again and informed the passenger that Applebee's mother would be coming to
the scene to pick up the Suburban and the dog. At that time, Officer Lister noticed a small
digital scale in the center dash compartment. He asked the passenger to step out of the car
with the dog and then began a search of Applebee's vehicle. Officer Lister removed the
scale from the center dash compartment and noticed a white residue on it. Officer Lister

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also found Applebee's wallet on the driver's side floorboard. When the officer searched
the wallet, he found a clear plastic baggie containing a white crystalline substance and
Applebee's expired identification card. A forensic scientist with the Kansas Bureau of
Investigation crime laboratory later determined that the baggie contained 2.17 grams of
methamphetamine. Applebee was later charged with possession of methamphetamine,
unlawful use of drug paraphernalia, and obstructed view.


         After Applebee was arrested and the officers finished searching the vehicle,
Applebee's mother, Melissa Applebee-Jaques, arrived at the scene to pick up the car and
the dog. When she arrived, the officers and the passenger were still there. After a short
period of time, the officers departed, leaving Applebee-Jaques alone with the passenger.


         At trial, Applebee-Jaques testified that once the officers left, the passenger got
back into Applebee's Suburban, took out Applebee's wallet, and started looking through
it. Applebee-Jaques then took the wallet away from the passenger. She further testified
that the passenger removed a metal box containing various phone parts from the vehicle
and handed it to her, saying that she needed to put the box in her car because the police
were looking at it. She believed "there was something off" about the passenger's request,
so she stayed with the passenger and Applebee's vehicle.


         Applebee-Jaques' husband, Larry Jaques, arrived on scene approximately 45
minutes to an hour later to help Applebee-Jaques with Applebee's vehicle. Jaques also
testified at trial, stating he found a "meth pipe" in Applebee's car on the floor behind the
driver's seat in plain view, lying on top of some clothes. Jaques stated he threw out the
pipe while driving Applebee's car home. There is no evidence in the record that either
Applebee-Jacques or Jacques notified the police of the passenger's behavior after the
officers left the scene or regarding the pipe Jaques found and neither party contest this
issue.


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       At the jury trial on April 4 and 5, 2018, the State called all three officers to testify.
During the State's direct examination of Officer Lister, the prosecutor asked him
questions regarding what happened after Applebee was arrested and being transported to
the jail. The following line of questioning occurred:


       "Q. [PROSECUTOR] While you were driving to the department of corrections, would
       you have read Miranda to Mr. Applebee?
       "A. [OFFICER LISTER] Yes, I did.
       "Q. And what if anything did he do after you'd read him his rights?
       "A. He stayed quiet, didn't say anything.
       "Q. And when you got to DOC, did you drop him off at that point or what did you do?
       "A. We booked him into DOC, department of corrections."


Defense counsel did not object to this line of questioning. Furthermore, the State never
made any additional reference to Applebee's post-Miranda silence at trial.


       Applebee did not take the stand at trial. Instead, defense counsel offered an
alternative theory by cross-examining the State's witnesses and calling Applebee-Jaques
and Jaques to testify. Specifically, defense counsel argued that the methamphetamine and
the digital scale did not belong to Applebee. Instead, defense counsel theorized that these
items belonged to the passenger and that he planted the methamphetamine in Applebee's
wallet and the digital scale in the center dash compartment while he was left unattended
in the vehicle. Defense counsel argued that Applebee-Jaques' testimony about the
passenger's behavior once the officers left and Jaques' testimony about finding a pipe in
plain view after officers had already searched Applebee's vehicle provided further proof
to support this alternative theory.


       Near the end of his closing argument, the prosecutor made the following remark
about Applebee-Jaques' and Jaques' testimonies:


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       "And finding the pipe and the assertions that he was going through the wallet after the
       fact, they don't really make sense either. The reason they don't make sense is because if
       that's what happened, why didn't they call the police? Their son was just arrested for
       something that they don't believe he did. Why wouldn't you call police and say, hey, this
       is what this guy was doing. This is what we also found. [The passenger's] the only person
       who's been in the car ever since. You guys need to get back down here because he's the
       one who put it there."


Defense counsel made no objection to these remarks.


       Following a brief deliberation, the jury found Applebee guilty of possession of
methamphetamine and unlawful use of drug paraphernalia. The jury acquitted Applebee
of the obstructed view charge. At sentencing on June 22, 2018, the district court
sentenced Applebee to 15 months in prison for the possession of methamphetamine and 6
months in jail for the unlawful use of drug paraphernalia—both sentences running
concurrently. The district court suspended the sentences as Applebee was eligible for
Senate Bill 123 drug treatment and ordered Applebee to serve an 18-month supervised
probation term. Applebee timely appeals his convictions.


   DID THE STATE INTRODUCE EVIDENCE ABOUT APPLEBEE'S POST-MIRANDA SILENCE
             DURING TRIAL AND COMMIT PROSECUTORIAL MISCONDUCT?

Standard of Review

       In a case where a defendant argues his constitutional rights—as protected by
Doyle—were violated, this court reviews the claim de novo. State v. Fisher, 304 Kan.
242, 248, 373 P.3d 781 (2016). If the court determines there was a Doyle error, reversal
of a conviction is not automatic. 304 Kan. at 249. Rather, it must then decide whether that
error was harmless by examining it in the context of the record as a whole and by
considering how the district court handled the error when it arose. The error may be
harmless where the party benefitting from it proves beyond a reasonable doubt that the

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error complained of did not affect the outcome of the trial in light of the entire record. In
other words, the error is harmless if there is no reasonable possibility that it contributed to
the verdict. 304 Kan. at 248.


Discussion

       Applebee argues that the State impermissibly used his post-Miranda silence at
trial to impeach him on two separate occasions. First, he contends that during the State's
case-in-chief, the prosecutor asked Officer Lister what Applebee did after the officer read
Applebee his rights. Officer Lister responded that Applebee "stayed quiet" and "didn't say
anything." Second, he claims that during the State's closing argument, the prosecutor
essentially told the jury that Applebee must be guilty because neither Applebee-Jaques
nor Jaques spoke to the police after Applebee's arrest to protest his innocence.


       The State responds with three arguments: (1) Applebee failed to preserve his
Doyle challenge with a timely and specific objection, (2) no Doyle violation occurred,
and (3) even if a Doyle violation occurred, it did not affect the outcome of the trial.


       Generally, the State is not allowed to impeach a defendant using the defendant's
post-Miranda silence. Doyle, 426 U.S. at 619; Fisher, 304 Kan. at 248. There are some
notable exceptions to this rule. For example, a defendant's silence before Miranda
warnings are given and a defendant's statements made after the warnings are given are
not protected under Doyle. Fisher, 304 Kan. at 249. Furthermore, Doyle protections do
not extend to defendants in cases where their witnesses are examined about the witnesses'
previous refusals to speak to law enforcement, so long as the witnesses were not
previously in custody and given Miranda warnings. See State v. Wilkerson, 278 Kan.
147, 157, 91 P.3d 1181 (2004) (finding no Doyle violation where prosecutor examined a
defense alibi witness who previously refused to speak to law enforcement and who had
not been in custody or read Miranda warnings).

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       If the Doyle challenge concerns an evidentiary issue raised at trial—e.g., a
prosecutor's line of questioning on direct or cross-examination—a defendant cannot
argue the issue on appeal if defendant did not timely and specifically object to it during
the trial. See K.S.A. 60-404; State v. King, 288 Kan. 333, 348-49, 204 P.3d 585 (2009).
However, if the defendant alleges the Doyle violation occurred during a prosecutor's
opening or closing remarks, this court may consider the alleged violation for the first time
on appeal even where there is no objection. See 288 Kan. at 349.


       Applebee's first argument that the State impermissibly elicited testimony during its
case-in-chief regarding Applebee's post-Miranda silence fails because it was not properly
preserved for appeal. The Kansas Supreme Court unequivocally held in King that Doyle
issues must be timely and specifically objected to during the evidentiary phase of trial.
King, 288 Kan. at 348-49. Applebee's counsel failed to object to Officer Lister's
testimony regarding Applebee's post-Miranda silence. Because of defense counsel's
failure to object, this issue is not properly preserved.


       Applebee's second argument that the State impermissibly implied to the jury that
Applebee must be guilty because neither of his witnesses spoke to the police regarding
potentially exculpatory evidence they found following Applebee's arrest also fails. Doyle
specifically states that the prosecutor cannot impeach a defendant with the defendant's
own post-Miranda silence. Doyle, 426 U.S. at 619; Fisher, 304 Kan. at 249. When it
comes to defense witnesses, the State may question those witnesses regarding their
refusal to speak to law enforcement or reference that silence to show witness bias as long
as those witnesses were not in custody and had not been given Miranda warnings. See
Wilkerson, 278 Kan. at 157.


       Applebee-Jaques and Jaques testified on Applebee's behalf. Neither had been
arrested or given Miranda warnings. Both individuals failed to contact law enforcement
after Applebee's arrest to inform the police about potentially exculpatory evidence. This

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silence is in no way related to Applebee's right to post-Miranda silence and the witnesses
were afforded no right to silence since they were neither in custody nor been given
Miranda warnings. Consequently, the prosecutor is allowed to examine these witnesses
regarding their silence or reference that silence to highlight any potential bias. See
Wilkerson, 278 Kan. at 157. There is no Doyle error as to the comment on the testimony
of Jaques and Applebee-Jaques.


       Affirmed.




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