374 P.3d 654
Kan.2016Background
- Victim abducted and sexually assaulted in February 2000; investigators recovered a stocking cap and gloves with DNA profiles; partial stomach swab profile also obtained.
- DNA from the right glove matched Ralph E. Corey in CODIS in 2011; statistical frequencies for the glove/hat profiles were extremely small, the stomach swab profile matched at ~1 in 9.
- First trial ended in a mistrial for juror cellphone misconduct; a second trial resulted in convictions for aggravated kidnapping, attempted rape, criminal threat, and aggravated sexual battery; controlling sentence 401 months.
- On appeal and review Corey raised: juror misconduct (jury knew of prior trial), prosecutorial misstatements (DNA and attempt law), several trial errors (ex parte judge-jury contact; defendant absent for jury question/readback; instructions about mistrial costs), and a sentencing criminal-history scoring claim under Murdock/Keel.
- The Kansas Supreme Court affirmed: it found the constitutional and nonconstitutional errors (including juror exposure to information and defendant’s absence) harmless beyond a reasonable doubt and rejected Corey's statutory/lenity and sentencing arguments.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Corey) | Held |
|---|---|---|---|
| Juror misconduct: jurors discussed prior trial during deliberations | Any knowledge of a prior trial was harmless given curative instructions and overwhelming evidence | Knowledge of a prior retrial (and possible verdict) was fundamentally prejudicial and required mistrial | Court applied Chapman harmlessness standard and held misconduct harmless beyond a reasonable doubt; no new trial required |
| Prosecutorial statements about DNA and law of attempt | Statements were fair comment on evidence; attempt law permits conviction despite voluntary cessation | Prosecutor misstated DNA evidence strength and misstated attempt law (abandonment defense) | Prosecutor misstated that stomach swab "placed" defendant on victim (error) but not gross/flagrant; attempt-law argument rejected under Kansas precedent (Martinez) |
| Ex parte judge-jury communication and defendant absent for jury question/readback | Communications were innocuous; any right-to-be-present errors were harmless given strength of evidence and lack of objections | Judge's entry into jury room and Corey's absence violated Sixth Amendment and require reversal | Court presumed presence errors but found them harmless beyond a reasonable doubt under the Verser factors (strength of case, lack of objection, innocuous nature, posttrial remedies) |
| Criminal-history scoring / illegal sentence (Murdock claim) | Scoring was proper per later controlling precedent | Pre-1993 out-of-state felony should be scored as nonperson felony per Murdock, making sentence illegal | Court denied summary disposition: Keel controls and forecloses Murdock-based relief; scoring upheld |
Key Cases Cited
- Chapman v. California, 386 U.S. 18 (constitutional harmless-error standard)
- Turner v. Louisiana, 379 U.S. 466 (jury exposure to extrinsic facts can violate Sixth Amendment)
- State v. Keel, 302 Kan. 560 (criminal-history scoring rule controlling Murdock issue)
- State v. Martinez, 290 Kan. 992 (attempt statute interpretation — voluntary cessation irrelevant)
- State v. Ward, 292 Kan. 541 (mistrial/harmless-error framework and appellate review of mistrial denials)