STATE OF KANSAS, Appellee, v. ELTON L. SHERMAN, Appellant.
No. 113,105
IN THE SUPREME COURT OF THE STATE OF KANSAS
- The right to a fair trial is a fundamental liberty secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
- Once a point of law has been established by a court, it will generally be followed by the same court and all courts of lower rank in subsequent cases when the same legal issue is raised. Stare decisis operates to promote system-wide stability and continuity by ensuring the survival of decisions that have been previously approved by a court. The application of stare decisis ensures stability and continuity—demonstrating a continuing legitimacy of judicial review. Judicial adherence to constitutional precedent ensures that all branches of government, including the judicial branch, are bound by law.
- Stare decisis is not a rigid inevitability but a prudent governor on the pace of legal change. A court of last resort will follow that rule of law unless clearly convinced it was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.
- The “particularized harmlessness inquiry” commanded by State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004), is overruled.
- Whenever a claim is asserted that any act of a prosecutor has denied a criminal defendant his or her due process rights to a fair trial, we will refer to the claim and resulting judicial inquiry as a claim of “prosecutorial error.”
- Appellate courts will continue to employ a two-step analysis to evaluate claims of reversible prosecutorial error. These two steps can and should be simply described as error and prejudice.
- To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State‘s case and attempt to obtain a conviction in a manner that does not offend the defendant‘s constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant‘s due process rights to a fair trial.
- In evaluating the prejudice step of our two-step analysis for reversible prosecutorial error, appellate courts shall look no further than, and shall exclusively apply, the traditional constitutional harmlessness inquiry demanded by Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Prosecutorial error is
harmless if the State proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.
- We continue to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but when analyzing both constitutional and nonconstitutional error, an appellate court need only address the more demanding standard of constitutional error.
- Multiple and varied individualized factors can and likely will affect the Chapman analysis in future cases. Every instance of prosecutorial error will be fact specific, and any judicial review for prejudice must likewise allow the parties the greatest possible leeway to argue the particulars of each individual case. Courts must simply consider any and all alleged indicators of prejudice, as argued by the parties, and then determine whether the State has met its burden—i.e.,
shown that there is no reasonable possibility that the error contributed to the verdict. - Prosecutorial acts properly categorized as “prosecutorial misconduct” are erroneous acts done with a level of culpability that exceeds mere negligence. A prosecutor who acts with knowledge and intent outside the wide latitude afforded prosecutors, or with a malicious or gross disregard for the fair trial rights of the defendant, is subject to sanction for such misconduct in a separate proceeding outside the confines of the criminal case within which the misconduct occurred.
- Sanctions for prosecutorial misconduct may take one of two forms, or both. The traditional remedy of a disciplinary referral for a determination of ethical violations is one form, and it remains a distinct likelihood when misconduct is an issue. In addition, courts must affirmatively act to punish and deter particularly egregious prosecutorial acts. All Kansas courts must discharge their duty to oversee the criminal justice system and ensure its integrity by issuing on the court‘s own motion—in any circumstances where the court determines prosecutorial misconduct likely occurred—orders to offending prosecutors, to be heard in separate proceedings, to show cause why the prosecutor should not be found in contempt of court for his or her misconduct. A prosecutor who knowingly and intentionally disregards the dictates of justice in Kansas courts does so at his or her peril.
- Appellate courts review a district court‘s decision denying a motion for mistrial under an abuse of discretion standard.
- In determining whether a district court abused its discretion in denying a motion for mistrial, an appellate court asks: (1) Did the trial court abuse its discretion when deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion when deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice?
- Violations of
K.S.A. 60-455 are subject to the nonconstitutional harmlessness standard ofK.S.A. 2015 Supp. 60-261 . Under that standard, the party benefitting from
the error has the burden of showing that there is no reasonable probability the error affected the trial‘s outcome in light of the entire record.
Appeal from Crawford District Court; A.J. WACHTER, JR., judge. Opinion filed September 9, 2016. Affirmed.
Meryl Carver-Allmond, of Capital Appellate Defender Office, argued the cause and was on the briefs for appellant.
Michael Gayoso, Jr., county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
STEGALL, J.: Today, we narrow and rename our judicial review of prosecutorial behavior when such review occurs within a criminal appeal. Whenever we act inside the confines of a criminal appeal, we will henceforth review prosecutorial behavior for—and describe such conduct as—“prosecutorial error.” See, e.g., American Bar Association House of Delegates, Recommendation 100B (2010) (recommending “trial and appellate courts, in criminal cases, when reviewing the conduct of prosecutors [should] differentiate between ‘error’ and ‘prosecutorial misconduct‘“). Just as significantly, today‘s decision articulates a standard by which certain prosecutorial acts may properly be categorized as “prosecutorial misconduct” and appropriately sanctioned in separate proceedings occurring outside the confines of a criminal appeal. We announce these changes in the context of Elton Sherman‘s appeal of his convictions for first-degree felony murder and aggravated battery.
Sherman asserts three claims of reversible error on appeal. Principally, Sherman alleges that prosecutorial misconduct denied him his due process right to a fair trial
guaranteed to him by the Fourteenth Amendment to the United States Constitution. Second, Sherman alleges the district court erroneously denied his motion for mistrial after the State introduced evidence of Sherman‘s prior convictions in violation of a pretrial order in limine.
With respect to the primary issue here—prosecutorial misconduct—both Sherman and the State urge us to reconsider and alter the legal tests we have applied to such claims since our holding in State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004). On the one hand, Sherman asks that we eliminate ill will as a factor in our analysis because it distorts the ultimate question of whether the prosecutor‘s actions denied the defendant a fair trial and creates a de facto heightened harmlessness standard:
“[T]he overarching question for the second step of a prosecutorial misconduct analysis is whether the misconduct prejudiced the jury against the defendant and denied the defendant a fair trial. . . .
“But ill will has very little to do with that. . . . [A] prosecutor may act with the blackest of hearts and yet his comments may ultimately have no impact on the jury. Or she may innocently bumble into a mistake of law that dramatically alters how the jury sees a case.”
On the other hand, the State urges us to adopt the nomenclature of “error” and reserve the term “misconduct” for extreme cases of intentional or malicious acts:
“[D]ifferentiating between a malicious and improper intentional act by the prosecutor and one that was a mistake . . . provides clarification by this Court as to the level of gravity [of] the prosecutor‘s actions in the particular case. . . . This differentiation can be done when this Court determines if the conduct was committed with ill will.”
At oral argument, in a rare moment of clarity and consensus between the defense and prosecutorial bars, counsel for both parties indicated their mutual agreement with both prongs of the criticism being leveled at our Tosh rubric. We commend counsel, and so as not to squander the opportunity presented by both parties to improve our jurisprudence in this area, we have conducted a thorough review of Tosh and its progeny. In short, we agree with the criticisms of Tosh and adopt a modified approach that accords with the best interests of defendants, prosecutors, victims, and society at large. We conclude that our modified approach will more effectively and fairly preserve and protect the integrity of our constitutionally defined criminal justice system.
Though today we make a significant departure from both the nomenclature and the legal test we will apply to what have historically been known as prosecutorial misconduct claims, we emphasize that we are all too aware that the behaviors properly described as prosecutorial misconduct do still occur in Kansas. The power of the State to charge and prosecute its citizens for criminal violations of the law is a fearsome one, and it is vested exclusively in a prosecutor who is given vast discretion to make both charging decisions and the myriad of practical and strategic decisions that occur in the course of a prosecution. “The prosecutor has more control over life, liberty, and reputation than any other person in America.” Robert H. Jackson, U.S. Attorney Gen., The Federal Prosecutor, Address Before the Second Annual Conference of United States Attorneys (April 1, 1940). To suffer an abuse of this power at the hands of an unethical prosecutor is one of the grossest inequities and indignities that can be visited upon a citizen by the State. Such abuse cannot be tolerated in a free society.
Therefore, we wish to make it clear from the outset that today‘s decision does not eliminate the category of prosecutorial misconduct from our review and oversight of the criminal justice system as a whole. We merely remove it from inside the formal bounds
of a criminal case. In so doing, as explained in detail below, when reviewing and supervising a criminal prosecution, the judiciary can more effectively keep our focus on and vindicate the dual interests of justice that are present in a criminal case—viz., the rights of the defendant to receive a fair trial and society‘s need to punish and deter crime. Concurrently, when and if it is warranted, we can more effectively evaluate, punish, and deter the actions of rogue prosecutors when
We are convinced by experience, reason, and a thorough review of the caselaw and history from numerous jurisdictions, that the approach we announce today will benefit every party concerned—from defendants whose constitutionally protected right to a fair trial will now become the sole focus of our prosecutorial error analysis; to victims of crime and society at large who will no longer have to endure the possibility that an otherwise constitutional conviction might be reversed simply to punish a prosecutor‘s bad acts; to the vast majority of our State‘s fine and ethical prosecutorial corps who need no longer fear that their every mistake will be tinged with the hint of unethical behavior and who will be quite happy, we surmise, as proverbial good apples, to see the bad apples removed from the barrel or otherwise appropriately pared.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Elton Sherman of first-degree felony murder for the killing of Cecilio Mendez done while committing an aggravated battery against William Chirod Lewis. It was undisputed at trial that Sherman and Lewis knew each other—Lewis’ wife was Sherman‘s girlfriend‘s sister. The two would see each other at family gatherings but were not close friends. On the night of the killing, both Lewis and Sherman were at Lewis’ home. Sometime that night, Mendez was discovered by law enforcement outside
of Lewis’ home, alive but with a severe head injury. Mendez lapsed into a coma and died 2 weeks later. Lewis had also suffered a head injury that evening.
The remaining facts were disputed. The evidence presented to the jury consisted primarily of conflicting testimony between Lewis and Sherman. Lewis testified he and his wife, Laura Lewis, met Mendez during Thanksgiving day. They were walking from the family gathering (hosted by an aunt) to the store when they saw Mendez and asked him for a ride. Mendez agreed and Lewis testified he told Laura to try to get some money from Mendez. Laura sat in the front seat of Mendez’ car, flirting. She gave Mendez her telephone number, and Mendez gave them some money for beer and a ride back to the family gathering.
Lewis testified that later that night, he, Laura, Sherman, and Laura‘s sister (Sherman‘s girlfriend), Rozanna Heilig, arrived at Lewis’ home sometime after the family Thanksgiving celebration. Mendez and Laura then talked on the phone, and she left with Heilig to meet Mendez. The two returned a while later with 60 dollars from Mendez and arrangements to meet again the next day. Lewis testified that he told Sherman about the scheme to con Mendez out of money by enticing him with Laura and her sister.
The next day, Mendez again met with Laura, but she returned home shortly thereafter because Mendez was asking for Heilig instead. Lewis testified that Heilig teased Sherman as a result, and Sherman became upset. The group proceeded to allow Mendez to believe he could see Heilig if he came to the house the following day. Lewis testified there had been no discussion of robbing Mendez outright.
On Saturday night, Mendez showed up at Lewis’ home. Lewis was walking around the house to meet Mendez at the back door, and as he approached Mendez, he testified that he felt a “hit” on the top of his head. Lewis fell forward onto Mendez, and Mendez
fell backwards with Lewis on top of him. Lewis looked up to see Sherman hitting Mendez in the face with a stick. Lewis said Sherman hit Mendez two to three times with the stick. After Sherman stopped hitting Mendez, he told Lewis to get his wallet. Lewis then took Mendez’ wallet and carried it with him into the house.
In addition to finding Mendez, law enforcement also discovered physical evidence at or near the scene of the crime. Most notably, an officer found a tree limb on the ground next to Mendez’ feet with Mendez’ blood and tissue on it. The autopsy revealed injuries consistent with being struck forcefully with a tree limb.
In contrast with the rendition of events provided by Lewis, Sherman testified that he came out of Lewis’ house only to discover Lewis kneeling over an injured Mendez, rifling
During voir dire, the prosecutor repeatedly tried to discuss the reasonable doubt standard with prospective jurors, though most efforts were disallowed by the district court. One key exchange follows:
“[Prosecutor]: All right. And everybody knows the burden of proof is beyond a reasonable doubt. It‘s the highest burden in law, but it doesn‘t mean that there can‘t be any doubt in the case because there‘s always some doubt.
“[Court]: Well, let me instruct the jury at the appropriate time on reasonable doubt.
“[Prosecutor]: Okay
“[Court]: I think that‘s a self-explanatory term—
“[Prosecutor]: Okay.
“[Court]: —at least unless—
“[Prosecutor]: You‘ll be given an instruction on that. I was kind of going maybe the concept [sic].
“[Court]: I‘m not going to define it in the instructions other than reasonable doubt.
“[Prosecutor]: Okay.
“[Court]: Unless you convince me otherwise.
“[Prosecutor]: All right. Let me kind of go to that area. Any time something occurs whether it be a crime or not a crime for a civil case we‘re not there. If you‘re not a witness to it and you‘re on a jury that means you didn‘t see it happen so you don‘t have a complete picture in time as to what happened so you have to listen to the evidence and get what the story is about from either testimony or physical evidence. And you‘re allowed to use your inferences as an adult in putting the story together. In fact, you are the trier of fact in the case. You decide guilt or innocence. That‘s your job as a jury. Like an example would be here‘s a picture of a globe. I know it‘s small.
“[Court]: I hate to interrupt you, but I don‘t want you to use demonstrative stuff on voir dire. If you would please just question the jury I‘d appreciate it. Thank you very much. You can use that stuff in closing argument.
“[Prosecutor]: I will, your honor.
“[Court]: Let‘s just question the jury at this point.
“[Prosecutor]: Thank you. Let me go through one example. Say it‘s a winter day like we‘ve had the last few weeks. We‘ve had snow on the ground and you come outside and you see some tracks in the snow.
“[Court]: Again, you‘re being argumentative.
“[Prosecutor]: I‘ll move on, Your Honor.” (Emphasis added.)
Particularly notable is the dual-sided fact that the prosecutor repeatedly tried to discuss reasonable doubt with analogies, even using demonstrative exhibits, which the district court blocked during voir dire but told the prosecutor, “You can use that stuff in closing argument.”
At trial, during the rebuttal portion of the State‘s closing argument, the prosecutor referenced a slide in a powerpoint presentation that showed Mount Rushmore with Theodore Roosevelt‘s face removed. Above the drawing were the words: “Do you have a REASONABLE DOUBT this is Mt. Rushmore??” Below the drawing were the words: “Even though you can‘t see all four figures!!” The prosecutor told the jury:
“Didn‘t really get to talk to you about reasonable doubt too much. I‘m going to show you one diagram though. Not all the gaps are going to be filled by the state in this case. Every case always has some gaps. And like the jury instructions said it‘s up to you to listen to the witnesses[‘] testimony and use your life experience and inferences as to what happened in this case.
“Do you have any reasonable doubt that‘s Mt. Rushmore? But there‘s a gap. You‘re allowed to fill in those gaps, folks.”
Also relevant to Sherman‘s claims on appeal is the motion in limine Sherman filed
The following day Sherman moved for a mistrial on the grounds that the State had violated the order in limine and introduced evidence in violation of
discussing the motion for mistrial, the district court described two instances of inadmissible evidence heard by the jury before the tape was stopped: (1) a comment that Sherman had been Mirandized previously; and (2) a statement that Sherman had not called 911 on the night of the attack because he had an outstanding warrant for his arrest. The district court noted that both parties had transcripts of the tape yet the issue had gone unaddressed. Further, the district court said Sherman‘s motion in limine did not specifically call the court‘s attention to the tape or otherwise reference the tape. Finally, the district court opined that the problems could have been identified by the defendant at an earlier time. Ultimately, the district court denied the motion for mistrial.
The jury convicted Sherman, and the district court sentenced him to life without the possibility of parole for 20 years for first-degree murder.
Following sentencing, Sherman filed a timely notice of appeal on August 10, 2007. Despite this, Sherman‘s appeal was never docketed and went unaddressed until Sherman wrote to the district court asking about the status of his appeal in 2014. The letter resulted in the district court appointing appellate counsel for Sherman and the current appeal. The district court‘s order indicates that in 2007, trial counsel requested and received transcripts from the trial after sentencing, but the record is insufficient to explain why the delay occurred.
ANALYSIS
The Prosecutor Did Not Err Because at the Time of Trial, the Methods Used Were Within the Prescribed Wide Latitude Afforded Prosecutors.
1. A Short History of Prosecutorial Misconduct Claims Leading to Our Decision in State v. Tosh
The jurisprudence surrounding policing prosecutors during trial has historically taken as its lodestar—in almost all cases—the due process requirements of the Fourteenth Amendment. The Fourteenth Amendment “imposes minimum standards of fairness on the States, and requires state criminal trials to provide defendants with protections ‘implicit in the concept of ordered liberty.‘” Danforth v. Minnesota, 552 U.S. 264, 269-70, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 [1937]). “The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.” Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976) (citing Drope v. Missouri, 420 U.S. 162, 172, 95 S. Ct. 896, 43 L. Ed. 2d 103 [1975]). “‘A fair trial in a fair tribunal is a basic requirement of due process.‘” Turner v. Louisiana, 379 U.S. 466, 472, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965) (quoting In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 [1955]). Thus, “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).
While we recognize that certain prosecutorial acts may violate protected constitutional rights beyond the basic due process rights to a fair trial, the vast majority of cases of
357, 364, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) (“Within the limits set by the legislature‘s constitutionally valid definition of chargeable offenses, ‘the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation’ so long as ‘the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.‘“) (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 [1962]).
The United States Supreme Court, long ago, began expressing a special concern about the particularly unique responsibility held by those with prosecuting power.
“[The United States Attorney] may prosecute with earnestness and vigor . . . . But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
“It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U.S. 78, 88-89, 55 S. Ct. 629, 79 L. Ed. 1314 (1935).
The Court warned that “appeals to passion and prejudice may so poison the minds of jurors even in a strong case that an accused may be deprived of a fair trial.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240, 60 S. Ct. 811, 84 L. Ed. 1129 (1940). However, it also recognized that not every inappropriate action warranted reversal. 310 U.S. at 240 (“[E]ach case necessarily turns on its own facts. And where . . . the record convinces us that these statements were minor aberrations in a prolonged trial and not cumulative evidence of a proceeding dominated by passion and prejudice, reversal would not promote the ends of justice.“).
Synthesizing the need to constrain prosecutors within the bounds of fairness and the need to sustain convictions not so tainted by error as to call the verdict into doubt, the Court decided to evaluate prosecutorial affronts to due process using the constitutional harmless error standard from Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
“The question [in Chapman] was whether a [prosecutorial] error was per se error requiring automatic reversal or whether the conviction could be affirmed if the reviewing court concluded that, on the whole record, the error was harmless beyond a reasonable doubt. In Chapman this Court affirmatively rejected a per se rule.
“. . . In holding that the harmless error rule governs even constitutional violations under some circumstances, the Court recognized that, given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial. . . . Chapman reflected the concern, later noted by Chief Justice Roger Traynor of the Supreme Court of California, that when courts fashion rules whose violations mandate automatic reversals, they ‘retrea[t] from their responsibility, becoming instead “impregnable citadels of technicality.“‘” United States v. Hasting, 461 U.S. 499, 508-09, 103 S. Ct. 1974 , 76 L. Ed. 2d 96 (1983) (quoting R. Traynor, The Riddle of Harmless Error 14 [1970]).
In Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986), the Court explained that it looks at whether the improper comments “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.‘” (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d 431 [1974]); see also Parker v. Matthews, 567 U.S. 37, 132 S. Ct. 2148, 2153, 183 L. Ed. 2d 32 (2012) (describing Darden as “[t]he ‘clearly established Federal law’ relevant” in evaluating improper comments by a prosecutor during closing argument).
In United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985), the Court elaborated that “the remarks must be examined within the context of the trial to determine whether the prosecutor‘s behavior amounted to prejudicial error. In other words, the Court must consider the probable effect the prosecutor‘s response would have on the jury‘s ability to judge the evidence fairly.” (Citing Lawn v. United States, 355 U.S. 339, 359 n.15, 78 S. Ct. 311, 2 L. Ed. 2d 321 [1958]; Socony-Vacuum Oil Co., 310 U.S. at 242).
Our own court has long summarized, articulated, and followed the constitutional harmlessness test from Chapman as follows:
“[T]he error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Moreover, when analyzing both constitutional and nonconstitutional error an appellate court need only address the more demanding standard of constitutional error. State v. Akins, 298 Kan. 592, Syl. ¶ 3, 315 P.3d 868 (2014).
In one of our first opinions to discuss prosecutorial misconduct, the prosecutor had said of the defendant: “‘“‘You object, as is usual with felons overtaken and brought to trial.‘“‘” State v. Comstock, 20 Kan. 650, 653, 1878 WL 977 (1878). We opined in strenuous terms that such behavior was not to be permitted in criminal trials in Kansas:
“Courts ought to confine counsel strictly within the facts of the case; and if counsel persistently go outside of the facts of the case in their argument to the jury, then
the court should punish them by fine and imprisonment; and if they should obtain verdict by this means, then the court should set such verdicts aside.” 20 Kan. at 655.
Shortly thereafter, we again expressed our serious concern with improper prosecutorial statements to the jury:
“We take this opportunity, however, of calling attention to the duty of the district courts in jury trials, to interfere in all cases of their own motion, where counsel forget themselves so far as to exceed the limits of professional freedom of discussion. Where counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop him then and there. The court need not and ought not to wait to hear objection from opposing counsel. The dignity of the court, the decorum of the trial, the interest of truth and justice forbid license of speech in arguments to jurors outside of the proper scope of professional discussion.” State v. Gutekunst, 24 Kan. 252, 254, 1880 WL 976 (1880).
Thus, early in our history this court placed the burden on trial courts to police prosecutors, directing judges to intervene even without objection, set aside verdicts that are based on improper arguments, and even to fine or imprison the offending attorney. See also State v. Netherton, 128 Kan. 564, 575, 279 P. 19 (1929) (holding that defendant‘s objection after the jury retired was sufficient because “the failure of the court to admonish the jury to disregard these remarks was error, even if the jury had retired from the room before the request was made“); State v. Baker, 57 Kan. 541, Syl. ¶ 4, 46 P. 947 (1896) (“Where the county attorney in his closing argument to the jury repeatedly uses abusive
Along with developments in other jurisdictions—including federal courts—our decisions began to delineate a more standardized step-by-step approach to the dual
question of misconduct and prejudice. In State v. Majors, 182 Kan. 644, 647-48, 323 P.2d 917 (1958), we said:
“It is the duty of a county attorney in a criminal prosecution to see that the state‘s case is properly presented with earnestness and vigor and to use every legitimate means to bring about a just conviction, but he should always bear in mind that he is an officer of the court and as such he occupies a quasi-judicial position whose sanctions and traditions he should preserve. (23 C.J.S., Criminal Law, § 1081, p. 519.) He should not appeal to the self-interests of the jurors including their social, class, and business prejudices (53 Am. Jur., Trial, § 499, pp. 402-403) and neither should he appeal to their self-interests as taxpayers. (33 A.L.R.2d anno. 459, et seq.; 53 Am. Jur., Trial, § 499, p. 403.) Appeals of this kind are generally highly improper and are not to be condoned because they are obviously prejudicial to the defendant‘s right to a fair trial.”
Later, in State v. Thompson, 221 Kan. 176, 183-84, 558 P.2d 93 (1976), we declined to reverse a conviction following the prosecutor‘s improper closing argument, noting “there was nothing to indicate ill will on the part of the prosecutor. His remarks were not so gross and flagrant as to deny the accused a fair trial.” We went on to say: “Where the evidence of guilt is of such direct and overwhelming nature that it can be said that the erroneous admission of certain other evidence could not have affected the result of the trial, such admission is harmless error.” 221 Kan. at 183. It is not hard to see in Thompson the building blocks of the analytical framework we would more explicitly adopt in State v. Pabst, 268 Kan. 501, 508, 996 P.2d 321 (2000).
The Pabst court began by reciting the familiar principle that the “controlling question” is whether prosecutorial misconduct denied the defendant his or her due process rights to a fair trial. 268 Kan. at 504 (“Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant‘s
constitutional right to a fair trial.“). We then articulated the fundamentals of our two-part test:
“The analysis of the effect of a prosecutor‘s allegedly improper remarks in closing argument is a two-step process. First, an appellate court determines whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Second, an appellate court must determine whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.” 268 Kan. 501, Syl. ¶ 3.
Surveying the variety of standards courts have utilized to measure prejudice, the Pabst court described the “[v]arious tests . . . for determining whether a defendant was prejudiced by improper comments that are so gross and flagrant as to prejudice the jury.” 268 Kan. at 508, citing United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied 456 U.S. 989 (1982) (three-factor test for determining the existence of “substantial prejudice“: [1] severity of the misconduct; [2] measures adopted to cure the misconduct; and [3] the certainty of a conviction absent the improper statements); United States v. Leon, 534 F.2d 667, 679 (6th Cir. 1976) (applying a four-factor test).
Pabst then cited the “Thompson factors” from 1976 and noted that our Court of Appeals had routinely looked to those factors to measure prejudice:
“‘\“‘When determining whether prosecutorial misconduct was prejudicial, factors that should be considered include: (1) Is the misconduct so gross and flagrant as to
deny the accused a fair trial? (2) Do the remarks show ill will on the prosecutor‘s part? (3) Is the evidence against the defendant of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors? [Citations
outcome in light of the entire record.’ State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012).”
“Appellate courts reviewing the second part for an injustice may take a broader view than the trial court because appellate courts may examine the entire record
Given
Because the jury heard—without objection—the precise facts Sherman claims should not have been presented to the jury via his recorded interview with law enforcement, it is impossible to say there is a reasonable probability the error affected the outcome. The district court gave appropriate curative instructions and did not abuse its discretion in refusing to grant a mistrial.
Sherman‘s Due Process Claim Due to Appellate Delay is Moot.
Finally, because we have found no reversible error, Sherman‘s claim that a retrial would violate his due process rights due to the long delay between the filing of his notice of appeal and its final adjudication is moot.
Affirmed.