State v. Marshall
281 P.3d 1112
| Kan. | 2012Background
- Marshall was convicted by jury of burglary of a nonresidence, criminal damage to property, and obstruction of a legal duty.
- The strongest evidence was eyewitness Huckabee’s identification of Marshall as the burglar.
- Marshall challenged two issues: prosecutorial misconduct for vouching and trial-court error in the eyewitness certainty instruction.
- Prosecutor commented that Huckabee was honest; Marshall argued this bolstered credibility improperly.
- Footprint on the shed door allegedly matched Marshall’s boots; bootprint and flight evidence connected Marshall to the crime.
- Marshall did not object to the certainty instruction, but argued it was error under Mitchell/Anderson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct by vouching | Marshall alleges the prosecutor vouched for Huckabee's honesty. | State contends comments were responsive to defense and not prejudicial. | Misconduct possible, but harmless in this case. |
| Eyewitness certainty instruction error | Mitchell/Anderson require removing certainty factor; instruction error. | Marshall did not object; error may be harmless; no reversal. | Instruction error occurred; but no reversal due to safeguards and record. |
Key Cases Cited
- State v. Bennington, 293 Kan. 503 (2011) (three-part harmlessness test components)
- State v. Inkelaar, 293 Kan. 414 (2011) (harmlessness factors for prosecutorial misconduct)
- State v. Tosh, 278 Kan. 83 (2004) (three-part harmlessness test application)
- State v. Pabst, 268 Kan. 501 (2000) (prohibition on commenting on witness credibility)
- State v. McReynolds, 288 Kan. 318 (2009) (prosecutor personal opinion vs. evidence-based argument)
- State v. Manning, 270 Kan. 674 (2001) (open-door rule relative to defense arguments)
- State v. McKinney, 272 Kan. 331 (2001) (open-the-door rule and prosecutorial misconduct)
- State v. Elnicki, 279 Kan. 47 (2005) (prosecutor's credibility remarks error despite response to defense)
- State v. Murray, 285 Kan. 503 (2008) (open-door rule and prosecutorial misconduct guidance mixed with later cases)
- State v. Mitchell, 294 Kan. 469 (2012) (disapproval of certainty factor in eyewitness instruction)
- State v. Anderson, 294 Kan. 450 (2012) (certainty factor not to be used in eyewitness instruction)
- Perry v. New Hampshire, 132 S. Ct. 716 (2012) (safeguards counteract unreliable eyewitness evidence; no per se due process violation)