State v. Ward

99,549 No. Kansas, Ward, Yvonne

State Appellee, Appellant.

(256 801) P.3d Review of the of the Court of in an judgment Appeals unpublished opinion filed 2009. February filed 2011. Opinion July Office, L.L.C., Wichita, of Law Nancy of the cause and Ogle, Ogle was argued on the briefs for appellant. Scott, cause, Six, Don L. the and Steve county attorney, argued attorney general, was with him on the brief for appellee. was delivered the court of by opinion Ward her convictions Yvonne Defendant Luckert, appeals J.: cocaine sales. She to four for 14 felonies related argues separate mistrial, which motion for she her trial court erred the denying two individuals the identified after witnesses for made prosecution courtroom and were the who wearing orange jail jump- sitting one more of the who with Ward as were suits during people A sales, of evidence. and she panel sufficiency challenges Ward, 99,549, affirmed, State No. of the Court of Appeals (Kan. 2009) and we WL opinion), (unpublished App. us, adds a new issue Before Ward review. regarding granted 1,000 within feet that a school located the State whether proved was used sales occurred of a laundromat where some drug school. We or an accredited unified school district nonpublic by it was to or to address this issue because decline presented in the and was not Court considered presented Appeals decision. There- of the Court of review petition seeking Appeals’ fore, the two issues consid- was abandoned. issue Addressing district court and we affirm the ered Court Appeals, did not abuse its dis- the trial court Court of concluding Appeals, mistrial and the evidence cretion the motion for denying sufficient. mistrial, on the the motion for we focus

In our discussion of Court standard review because parties’ arguments in our decision reveal inconsistencies potential past Appeals’ Kan- confusion decisions and application resulting regarding 60-2105, statutes, K.S.A. and K.S.A. 60-261 and sas’ harmless error 18, 824, 17 L. Ed. 2d 386 U.S. S. Ct. California, Chapman (1967), reh. denied 386 U.S. 705, when error which applies States Constitution. a the United guaranteed by right implicates Background Facts and Procedural of the sale or include two counts Ward’s 14 convictions felony (K.S.A. 65-4161[d]; 1,000 a of school of cocaine within feet delivery 21-36a05(a), (c); see at K.S.A. 2010 and recodified Supp. repealed 2009, 32, 5, 64); to commit two counts of L. ch. secs. conspiracy (K.S.A. 1,000 of a school within feet sale or cocaine delivery 21-3302); 65-4161[d]; K.S.A. two counts of the sale or delivery (K.S.A. 65-4161); four cocaine counts of cocaine possession (K.S.A. 79-5204); tax without and four counts drug stamp of a unlawful use communication to trans- facility arrange drug (K.S.A.65-4141); action and recodified 2009 at K.S.A. repealed 21-36a07. Supp. ofAll the counts arose when Ward sold crack cocaine allegedly Stinnett, to with who to Detective Candy agreed cooperate Jared of the Seward Sheriff s Office. Stinnett’s co- Wagenseller County resulted in her crack cocaine from Ward operation buying during 11, controlled that occurred on buys January Januaiy January and 2007. In for Stinnett’s February exchange cooperation, the State to dismiss criminal that Stinnett agreed multiple charges faced.

Because Ward the evidence was to insufficient argues support convictions, her a detailed discussion of the evidence is required. Trial Evidence the first controlled Stinnett testified that describing drug buy, searched, she was fitted with a wire trans- January

mitter, enforcement, carried documented funds from law and went to a booth aat laundromat located within telephone particular 1,000 Liberal, feet of Garfield School Kansas. She called Ward “told 120,” her that I wanted $120 worth of crack meaning cocaine. Ward “I’m on and Stinnett responded, my way,” pulled car her to side and waited for Ward to arrive. building A blue Suburban arrived thereafter. A man later identified shortly as Broderick West was and Ward was in the back driving, sitting seat behind West. Stinnett saw one or two other individuals in the vehicle, one of whom was later identified as Ward’s “Ms. daughter, Stinnett walked to the window and up passenger-side Jackson.” inside, reached in her hand. She testified that holding money West took Ward, handed it who reached between money seats the crack cocaine. Ward then handed pick up drugs to Stinnett. Stinnett drove to her location with law en- meeting forcement officers and the cocaine to Detective gave Wagenseller. testified that he near the laundromat and Wagenseller parked Ward and Stinnett identified West Ward. subsequently recognized in a and photo lineup. Jackson the second controlled also testified Stinnett drug buy, regarding with law 2007. She met around which took again January place searched, officers, was with a wire trans- fitted was enforcement mitter, call Ward. This time to the same laundromat to and went After come to Ward’s house. Ward told Stinnett to getting per- house, officers, to where she from Stinnett drove Ward’s mission that, Stinnett testified door and was invited inside. knocked on the house, Ward, in the West and were besides other including people 80,” Ward, her she “needed Stinnett walked to told up Jackson. Stinnett four rocks of crack Ward then handed $80. and Ward gave Afterward, to Stinnett returned cocaine. designated meeting tire to and turned over Detective location drugs Wagenseller. 31, 2007, Stinnett controlled on As for the drug January buy fitted the search for similar about process, gave testimony being transmitter, law officers for $100 from enforcement wire accepting laundromat, Ward to calling purchasing drugs, going Ward Stinnett to come to her she “needed 100.” told tell Again, before, of Ward’s while officers waited in her house. As vicinity house, testified that she heard Stinnett was invited inside. Stinnett Ward, her in.” Stinnett walked Ward tell someone to “[l]et up sofa, her the $100. on room who sitting living gave return, rocks of crack cocaine. Stinnett Ward Stinnett five gave to Detective met with officers and then gave Wagen- drugs seller. last transaction between Stinnett and Ward occurred drug that, 2007. a wire trans-

on Stinnett testified February wearing officers, she called Ward from $80 mitter and carrying provided Stinnett, “I’m on This time Ward told the laundromat. my way,” Ward, arrived side of the and met her around the building. again, in the and Ward sat in the blue Suburban. West was driving, pas- window. Stin- seat. Stinnett approached passenger-side senger console, of which “rock” the center off described a nett sitting a razor blade. Ward cut rocks of crack cocaine with Ward four left, De- Stinnett. When the Suburban handed the four rocks to as and Ward. West tective recognized occupants Wagenseller He followed the Suburban to Ward’s residence before returning to the where he met Stinnett who place, designated meeting over the handed drugs. these

After controlled Ward was arrested. The events drug buys, the arrest and were detailed at trial surrounding investigation by several law enforcement officers. Detective tes- trial Wagenseller’s the rise to motion for mistrial that the of an focus timony gave issue on The motion was made defense counsel after appeal. associates, Detective identified Ward’s West and Wagenseller Jack- son, them out while sat the courtroom. Both by pointing they individuals were dressed in orange jail jumpsuits.

Detective identified West while that Wagenseller explaining Ward had been a in blue Suburban passenger during January 11, 2007, sale. When the detective asked was was who driving, asked, detective it was indicated West. The then “And prosecutor is Mr. West in the courtroom af- today?” Wagenseller responded and, stated, West, to when asked to “He’s firmatively point sitting courtroom, in the back of the wearing oranges.” Later Detective he identified Wagenseller’s testimony Jack- son, who was also dressed in an This identification orange jumpsuit. occurred when the asked Detective ex- prosecutor Wagenseller he used to confirm Stinnett’s identification of plain photo lineup Ward. The detective that he Stinnett a responded gave photo six unnamed females and asked Stinnett to Ward. lineup identify Stinnett marked two one as Ward and other photos, identifying as next was whether prosecutor’s question Jackson. Jackson courtroom; was in the answered that that she was and Wagenseller row, she was “seated in the first the second individual wearing (There the smaller female.” were three individuals wear- oranges, but two them were identified witnesses jail ing clothing, only case-in-chief.) the State’s during

Both of these identifications occurred without immediate objec- later, tion. A short time defense counsel outside the objected pres- mistrial, ence and asked for a that West and jury arguing were listed as witnesses and them to remain allowing Jackson in the courtroom in after associated with Ward jail clothing being would Ward. In response, prejudice prosecutor explained she iden- knew the individuals was

he to show that Stinnett wanted in the as an identified that West was alleged coconspirator tifying, from case, Ward that the State was claiming trying preclude the motion did it.” The trial denied other dude “some mistrial, than or conclusion other for without any making finding there was no evidence prejudice. mentioning addition, to remain trial court allowed West Jackson courtroom, as which to another identification West led identification occurred of Ward. This associate subsequent s driver identified West as Suburban when Stinnett during sale; that he “in the she out orange January pointed Then, in the shirt.” after she suit next to the gentleman gray sitting 7,2007, also the on the testified he drove Suburban February pros- in courtroom. She asked her to confirm that West was the ecutor in “the in the referred to West as only gentleman orange, sitting the of the courtroom.” back on evidence and some additional evidence we will

Based this the the convicted Ward on discuss as multiple necessary, jury these sales. counts related to cocaine Court Decision Appeals' of trial the of and the

Ward to Court Appeals argued appealed the ev- her motion for mistrial and State’s court erred denying insufficient to the verdict. idence was support jury’s that trial court erred Ward’s assertion the failing Regarding mistrial, after for the her motion Court finding grant Appeals, issue of the no whether witnesses for prosecution guidance as the defendant while those individuals associates of may identify courtroom, are and seated in the individuals dressed jail clothing stated: dis-

“It elemental that to the State should be seems avoid potential prejudice, with attire from defendants individuals whose needlessly associating couraged Here, however, as the State’s identifies them inmates. the district accepted West and served that identification of legitimate puiposes. argument Jackson whether The over this court in district court has a distinct determining advantage to warrant a mistrial. See in the courtroom are actions sufficiently prejudicial 454947, Ward, 22-3423.” 2009 WL “5. K.S.A. that if it Court held even were to Additionally, Appeals conclude that the trial court abused its discretion Ward’s denying mistrial, failed motion for Ward to establish that her substantial were the error. Because the substantial prejudiced rights convictions, evidence Ward’s concluded that supporting panel the witnesses’ identifications West and as associates of Jackson little, Ward if had likelihood of the outcome of the any, changing Ward, trial. 2009 WL at *5. issue, of evidence Ward made

Regarding sufficiency general (a) that assertions evidence Ward to the crimes only linking was Stinnett’s lacked testimony testimony credibility (b) video, audio, forensic, the State failed to or other direct present evidence toWard the crimes. connecting these the Court of rejecting arguments, panel Appeals that the out was made aware Stinnett’s pointed jury cooperation with law enforcement in for dismissal of exchange charges her, related, some of were which and Ward was against drug asking Ward, court to 2009 WL at °1. reweigh credibility. evidence, court also noted there was more than sufficient both circumstantial, direct and from which “a reasonable could infer jury Ward, Ward was connected transactions.” drug WL at *2. both of Ward’s the Court of rejected

Having arguments, Appeals affirmed. review, Ward filed a for which this court petition granted. 20-3018(b) Our arises from K.S.A. 22- and K.S.A. jurisdiction 3602(e).

I. Motion for Mistrial We will first consider Ward’s that the trial court erred argument in her motion for mistrial in which she that allow- denying alleged Detective to West and while ing Wagenseller identify they Jackson were in the courtroom sitting orange jail wearing jumpsuits did Ward not renew this in later the “highly prejudicial.” objection trial when Stinnett another made identification of and did West not renew her motion mistrial for at that time or at conclusion the Hence, of all of the evidence. the trial court this mistrial considered issue mid-trial.

550 of her associates Ward that

On presence argues appeal, trial and a her to a fair to distinctive rights jail prejudiced clothing the United States both of innocence as by guaranteed presumption Constitution. The State Kansas Constitution responds and it was not an abuse of no Ward “made showing prejudice motion for mistrial.” to the defendant’s discretion deny Review Standard A. Principles/General Legal 22-3423(l)(c) a trial to declare a mistrial court K.S.A. permits courtroom, conduct, in which or outside the because “prejudicial with the trial without makes it injustice impossible proceed statute, a this trial or the defendant Applying prosecution.” First, the trial court must court must analysis. engage two-step ” “ is failure of the decide if ‘there some fundamental proceeding.’ 333, 343, (2007) White, 161 208 284 Kan. P.3d State v. (quoting so, 97, Lewis, [1985]). P.2d If State v. Kan. it the trial court must assess whether second step analysis, means, an This trial without is to continue the “injustice.” possible conduct, White, if there is we as explained prejudicial if the can be removed trial court must determine effect damaging not, If or instruction to the or admonition jury. mitigated by must whether the results trial court determine degree prejudice and, White, so, if a mistrial. 284 Kan. 343. in an declare injustice for mistrial the trial decision a motion On court’s appeal, denying v. under an of discretion standard. State is reviewed abuse Leaper, Foster, 89, 96-97, (2010); Kan. 238 P.3d State if (2010). is abused 233 P.3d 265 discretion ju- Judicial unreasonable, i.e., (1) fanciful, if is or no dicial action arbitrary, taken the trial reasonable would have view adopted person law, i.e., court; (2) is if the discretion is based an error of guided conclusion; on an error of an erroneous is based legal i.e., fact, if evidence does not fac- substantial support competent law or ex- on which a conclusion of tual finding prerequisite Gonzalez, 290 Kan. 755- State v. ercise of discretion based. cases, (2010). this standard 234 P.3d 1 In some may three-part this allowed when narrow the broad discretion previously routinely applied no-reasonable-person-would-take-the- only Ransom, v. See, State same-view standard. Kan. e.g., (mistrial (2009) 207 P.3d 208 abuse of discretion standard “does if even error consideration aof mis- change legal prompted trial”; standard whether reasonable would any applying person view). take same review, the abuse discretion standard of an

Applying appellate court focuses the two the trial court and questions analyzed by (1) asks: Did trial court abuse its discretion when if deciding was a (2) there fundamental failure in the Did proceeding? the trial court its when abuse discretion whether the con- deciding duct resulted in that could not be cured or prejudice mitigated instruction, admonition or an in through jury injustice? resulting The rubric for of the first with varies the nature analysis question misconduct, such as whether the is based alleged allegation witness, on the actions of a the actions of a bystander, prosecutorial misconduct, or error. See Kan. at 96-104 Leaper, evidentiaiy (conduct of witness an offered exhibit from allegedly stealing Foster, stand); (conduct witness 290 Kan. at 718-21 of bystander White, victim’s 284 Kan. at 340-44 crying during testimony); misconduct in the form (prosecutorial inappropriate questioning Tatum, State 135 P.3d argument); error K.S.A. 60-455 evi- (evidentiary admitting dence).

As to the second of whether the conduct “makes it im- inquiry with the trial without possible proceed injustice,” appellate court’s be broader than was that of the trial vantage point may court. An whereas, court will examine the entire record appellate mistrial, on the of the motion for the trial court depending timing have made the assessment before trial’s end. See may generally 96-97; White, 343-44; Kan. 284 Kan. at see also Leaper, K.S.A. statute, 60-2105 error harmless (appellate stating prejudice record”). caused error is assessed the whole “upon Regarding the test examined, which the record is cite to against parties cases that state the standard in three different While at first ways. it three different standards were the var- glance appears applied cases, ious we that one has conclude standard been ultimately ap- 552 in been different Some has but standard ways. expressed

plied, cases is to this conclusion. cited discussion the necessary explain Was the Outcome 1. The State’s Standard: Affected? Rinck, 848, P.2d 845 256 Kan. 888 State v. The State cites did not case, court trial court (1995). In that this concluded for mistrial because the its a motion abuse discretion denying the de- that he ran into misconduct —a witness’ statement alleged released from after the defendant had been fendant prison— Rinck, at trial.” 256 Kan. 854. not have the result at “could affected For used in recent decisions. Similar has been example, language 46, (2009), Dixon, 55, 209 P.3d 675 we indi- v. 289 Kan. in State consider whether a that an court “should cated limiting appellate and whether was instruction degree prejudice, any given, admitted would the outcome evidence improperly affect added.) trial.” (Emphasis of the “would affect Neither of these cases explains origin both cases of the trial” standard. Rather cite to the outcome prior turn, that, this even to cases. cite judicial lineage prior Tracking the source of leads to versions of K.S.A. 60-261 as tually previous (Rinck, 853, Mitchell, 256 Kan. cites to the standard. State 700, Dixon, 703, [1976], 289 Kan. at 220 Kan. 556 P.2d 874 Sanders, 55, P.2d 1084 to 263 Kan. 949 cites State v. cites to State v. [1997], which in turn cites to Mitchell. Mitchell 178, [1974], 168, 523 on other 215 Kan. P.2d 397 overruled Bly, Mims, 726, [1976], 556 P.2d 387 State v. Kan. by grounds 39, 144 State v. other by Gunby, disapproved grounds [2006], cites to P.3d 647 Kan. at Bly, source, 60-261. The 2010 amendments K.S.A. K.S.A. statutory did not of the statute that 60-261 substance change trial; the time of amendments are effect at the Ward’s Bly 60-261; Civil Council See K.S.A. only. stylistic Supp. Judicial Committee, Council Code Advisory regarding Report Judicial Procedure, Code of Civil Amendments to Kansas Proposed 2009]). 60-261, Comments to K.S.A. [December p. 2. The Court Standard: Substantial Were Appeals’ Rights Af- fectedP route, circuitous we conclude the standard stated

By equally Yet, the Court also derives from K.S.A. 60-261. Appeals different; of the standard was the Court of stated wording Appeals that Ward “failed to establish that her substantial were rights prej Ward, 99,549, 2009 udiced the error.” State v. No. WL (Kan. 2009) at *5 State v. Alb App. (unpublished opinion) (citing 418, 425-26, [2007]). 283 153 Kan. P.3d 497 This right, wording decisions, has been used this in several court recent by including 96-97, 262, Kan. at and 291 State v. 287 Kan. Leaper, Angelo, 283-85, (2008). 197 337 P.3d Ward, and other cases this Leaper,

Although Angelo, many using 60-261, do cite to K.S.A. 2010 the “substantial language Supp. echoes the of that which cur- rights” wording language provision, states: rently otherwise, evidence, “Unless no error in or justice requires admitting excluding

or trial, other error the court a any is for new by a for party, ground granting aside a verdict or for setting or otherwise a vacating, modifying disturbing judg- ment or order. At every stage must all proceeding, errors disregard added.) do substantial defects that not affect any party’s rights.” (Emphasis K.S.A. 2010 60-261. Supp. 3. The Link Between the Standards The text K.S.A. 60-261 the source of the “substantial explains Yet, the statute does not a test for deter rights” language. specify whether a substantial are affected. mining party’s rights Despite the lack of we have stated that the statutory language, frequently test is whether the error affected the outcome the trial. This test and has been used the United States Su widely accepted for Court more a than this court for a preme half-century States, 750, 764-65, Kotteakos v. United 328 U.S. 66 century. E.g., 1239, S. (1946); 178; Ct. 90 L. Ed. 1557 215 Kan. at Smith v. Bly, Co., 128, Union 132, Railroad 519 P.2d 1101 Pacific (1974); Co., 56, 62, 119 Saunders v. 86 (1911); Kan. P. 552 Railway see 2 Davis, Childress & Federal Review Standards of generally § (4th 2010). 7.03 ed.

554 level, “affect the substantial

At the federal rights” phrase which that 1919 at U.S.C. codified in provided appellate § record the case on the entire decide cases based courts should errors, defects, or that do to technical “without exceptions” regard Kotteakos, 328 See the substantial not “affect parties.” rights Kotteakos, noted the United States Court U.S. 757. In Supreme had incor- “affect the substantial also been rights” phrase rule, 52(a) Rule Rules harmless error Federal in the porated Procedure, “re- characterized as a which Court of Criminal Kotteakos, at 757 328 U.S. n.9. statement of law.” existing error “affected the defendant’s sub- Court concluded that an then influ- if it had a “substantial and effect or stantial injurious rights” Kotteakos, 328 776. verdict.” U.S. at ence determining jury’s Kotteakos, the States Court consis- Since United has Supreme affected it that an error substantial when reiterated rights tently effect the outcome of the See had proceeding. prejudicial 74, 81, Benitez, U.S. 124 S. Ct. United States v. Dominguez “ (the 2d ‘error affects 159 L. Ed. phrase ” “error with a affect on substantial means rights’ prejudicial Olano, United States outcome of proceeding”); judicial (1993) (The U.S. 113 S. 123 L. Ed. 2d Ct. Proc. that rule of Fed. R. Crim. error 52[b] requires showing plain “[tjhis is the same the error affected substantial rights; language 52[a], have in . . . that the error must Rule and means employed the . . . It have affected the outcome of been must prejudicial: Lane, 438, 449, 106 S. United v. 474 U.S. States proceedings.”); Kotteakos, 725, (1986) Ed. 2d 328 U.S. Ct. 88 L. (quoting 776 and that affected sub- error misjoinder concluding involving in results reversal if the stantial “only misjoinder requiring rights it ‘had a substantial and effect actual because injurious prejudice ”). or influence in the verdict’ jury’s determining can cases. In this A similar be traced Kansas history was in effect. the K.S.A.60-261 that then court discussed version of and “technical errors” The statute the court ignore required the that affected reversible error as one defined a “prejudicially G.S. 95-6176 substantial the party complaining.” rights 581). (Civ. The that a court must Code court explained § immaterial errors and that do not to have influenced rulings “disregard appear the verdict or substantial The must well be as rights. impaired ruling prejudicial erroneous, as and must or error the will be dis- appear, prejudice affirmatively be said to when show that the Prejudice may appear regarded. proceedings error, court or was misled and that the verdict or was jury by judgment prob- Saunders, affected to the of the 86 Kan. at 62. ably injury complaining party.” When the various amendments that result in the cur- statutory statute, rent version error of the harmless K.S.A. 2010 GO- Supp. law, are traced this court’s case similar can statements through be found cases. This and the use “would many history affect outcome of the trial” standard when if sub- examining stantial leads were affected us to the conclusion that the rights Court this case was 60-261. This conclusion Appeals applying is reaffirmed if we follow the of the cases cited judicial lineage by the Court of the line ends with 60-261. eventually Appeals; 60-261,

In addition to to K.S.A. of this court’s cases citing many 60-2105, statute, also cite the harmless error K.S.A. as appellate the standard for an court’s review of trial court’s appellate ap Rider, See, v. of K.S.A. 60-261. State Edens Lem & plication e.g., ons, 394, 407, (1981); 229 Kan. 625 P.2d 425 Thompson cf. Co, Inc, General Finance P.2d that had there been no motion for mistrial or of a (noting showing 60-2105). basis for mistrial under K.S.A. 60-261 and K.S.A. statute, 60-2105, harmless error K.S.A. also uses appellate standard, “substantial rights” providing: “The court shall all mere technical errors appellate disregard irregularities which do not to have affected substantial affirmatively appear prejudicially where it the whole rights party record complaining, appears upon court; substantial been has done or order justice of the trial judgment it, case before the court shall render such final as it any pending judgment deems such direct to be rendered justice requires, judgment taken, from which the without to technical errors and appeal regard irregu- added.) larities in the of the trial court.” proceedings (Emphasis if

Even we did have numerous cases 60- K.S.A. relying 261 and K.S.A. 60-2105 when if a be mistrial should assessing the text of those would lead the us conclude granted, provisions statutes should be because the fits the task applied language clearly a mistrial motion. For the evaluating example, applying statutory

556 determine what standard to

“substantial requires” “justice rights” a assessment of with trial court’s 60-261 is under congruent 22- as in K.S.A. an that term used there was whether “injustice,” Furthermore, 60- 3423(l)(c), criminal mistrial statute. applying a for is made is the trial motion mistrial 261 at the when stage of 60-261 stan- with indicating plain language compatible K.S.A. at should be dard “every stage proceeding.” applied trial a can then be 60-2105 reviewing applied by appellate court ruling. Error Standard: Federal Constitutional Harmless

4. Ward’s a Reasonable Doubt that Substan- Can We Conclude Beyond Were Not tial Rights Affected? the State this reconciles the standards cited

While discussion by them to one standard Court and reveals be and the of Appeals a line of in two Ward cites to third cases. stated different ways, harmless error stan cases federal constitutional These apply 18, 386 was v. U.S. dard that first stated California, Chapman (1967). 824, 17 987 24, 87 2d reh. denied 386 U.S. S. Ct. L. Ed. a federal con United Court held that “before States Supreme harmless, can be the court must be able to stitutional error held a that it harmless reasonable doubt.” declare belief beyond this U.S. at The Court means 386 24. Chapman, explained constitutional error . . . that the [must] [the] “beneficiary prove of did not a reasonable doubt that error complained beyond U.S. at 24. verdict contribute obtained.” Chapman, when a trial haveWe reviewing Chapman frequently applied mistrial if the decision a motion for court’s underlying regarding the United States Consti- error implicated right guaranteed States Constitution and Kansas tution or United jointly See, Martinez, 288 Kan. State Constitution. e.g., (2009); 252 Kan. 850 P.2d Saucedo v. P.3d Winger, (standard context substantial discussed rights); cf. Foster, 290 Kan. 718-21 citing Chapman, finding (although harmless use of constitutional conduct was not of nature warranting emotional when defendant’s father became error standard during 324, 333-34, 21 P.3d trial); State v. Thompkins,

557 of to mistrial motion based (rejecting application Chapman use of defendant’s statement for prosecution’s post-Miranda in some of the cases cited impeachment purposes). Unfortunately, cases, in we the other have not discussed by parties many why does does or Chapman apply. Ward, Hall, in one

For of the cases cited State v. example, by (1976), P.2d 220 Kan. 413 the court apparently applied that conclusion is not clear from the Chapman, although reading Hall, decision. the defendant the mistrial because of sought of his for brief time before the prejudicial impact appearing jury in his in his own clothes. prison clothing, despite request appear The court found this to be a fundamental failure in the proceeding and explained: can “There he no that a an trial accused to stand question practice requiring case, in distinctive such as that in described the result prison clothing, present may in an trial unfair the may innocence man- deny prisoner presumption dated Kansas Bill of 10 and K.S.A. 21-3109. This [Constitution] Rights, § Kansas, if it exists in be discontinued. should

practice, However, “. . . accused in at a trial or some appearance prison garb thereof, not in does and of itself constitute reversible error. It be portion must shown that the accused was such in such prejudiced by appearance appear- Hall, ance resulted in an unfair trial. 220 Kan. at [Citations omitted.]” 714-15. record,

After the Hall court concluded a mistrial examining conclusion, was not warranted. In re- court first reaching that “an view se results jected appearance prison per garb Hall, in an unfair trial.” Kan. at 715. the court Additionally, concluded: ‘We can a reasonable doubt that the brief say beyond did not have substantial [a] appearance appellant prison garb Hall, effect the ultimate verdict. [Citation upon omitted.]” Kan. at 715.

This last sentence similar to the at least Chapman; language it uses benchmark of a reasonable doubt.” Chapman “beyond Yet, it muddles the standard by concluding jail appearance did not have a “substantial effect the ultimate ver- clothing upon added.) Hall, dict.” 220 Kan. at '715. we (Emphasis Consequently, fit the cannot statement from the case into a neatly Chapman pi- Nevertheless, from the even with this departure wording geonhole. the Hall court cited first cases to one Kansas of Chapman, State Chapman, Fleury, Syl. ¶ apply (1969). P.2d 44 Alexander, State v. Ward, case in the cited other

Similarly, 273, (1986), 729 1126 the court to have 240 P.2d Kan. appears standard, error without federal harmless the constitutional applied Alexander, whether a mis- In the issue was it was so. doing saying had admitted that evidence been trial warranted because was defendant was incarcerated. The court stated: showed the simply (K.S.A. 60-2105), a the harmless error rule “In Kansas applying little, the had if be able to declare error court must any, reviewing trial and the court the result the likelihood of having changed a reasonable doubt.” to declare such belief a must be able beyond Alexander, 240 itself, this not at 276. discussion would Kan. By harmless error as de- that a federal constitutional analysis, suggest Yet, it was be- fined in was Chapman, being apparently applied. Alexander court cited to State 231 Kan. Johnson, cause the decision, turn, in (1982), 146 and cited 643 P.2d the Johnson “little, the error had to the standard of whether Chapman. By using Alexander trial,” the if likelihood of the result any, changing cases, a with in which Fleury, court line of continued beginning its this altered from while Chapman court the expressing language intent to apply Chapman. after was decided

Fleury, years approximately court noted the Chap- the the first decision. Chapman Fleury, “ man a error can be held that federal constitutional ‘before holding harmless, it was must be to declare a belief court able a Fleury, harmless reasonable doubt.’ omitted].” [Citation beyond 24). 386 U.S. at The Chapman, Fleury Kan. at (quoting rule, standard to Kansas’ harmless error court then this compared explaining: in the law of rule been

“Our Kansas harmless-error has incorporated statutory (See at K.S.A. this K.S.A. and K.S.A. 62-1718 [Corrick] [recodified state. 60-261 60-2105].) of such a nature as rule unless error is Our harmless-error applies directed Our courts are to inconsistent with substantial justice. disregard appear not affect the substantial which does rights defect error or proceedings any of the parties. an additional declared rule Chapman requires “The federal harmless-error a harmless reasonable that such error was beyond court determination by little, the result of the if likelihood it had any, having changed doubt 203 Kan. at 893. trial.” Fleury, of this additional

Next, court reviewed briefly application this court in the courts of other states determination This discussion short time between Chapman Fleury. relatively to conclude: led court Fleury in the rule has a sound basis ‘We are convinced our harmless-error jurispru- state, to be to federal constitutional and when our rule is dence this applied what said in the same in the error our courts should Chapman. apply light must be our harmless-error rule able this we mean By applying little, had likelihood declare the federal constitutional error any, having if trial, and able to declare such a belief result of the the court must be changed added.) at 894. Kan. a reasonable doubt.” Fleury,

beyond (Emphasis its statement that an court did further reconcile Fleury “little, if it had likelihood” of error harmless if having any, trial, a rea- result of the with the “harmless the beyond changed er- of the federal constitutional harmless sonable doubt” language 386 U.S. at 24 in See ror standard stated Chapman. Chapman, harmless, (“[B]efore can be the a federal constitutional error held it was to declare a belief that harmless court must be able beyond doubt.”). a reasonable

Nevertheless, different, because the is wording periodically between the has arisen as to whether there is a difference question standard. On each oc standard Kansas the Chapman applies we have casion when this court has addressed this always question, “little, the the if likelihood” standard is concluded any, essentially in as one For same standard the Chapman. adopted example, (2001), 894, 1084, 40 P.3d 139 cert. State v. Kleypas, that, (2002), the lan denied 537 U.S. 834 we explained although from used in the “somewhat different” that is Chapman, guage Brown, 280 the See also State v. “standard is same.” essentially for Kan. 118 P.3d 1273 Kleypas (citing recognition standard, es- different from that Kansas’ Chapman, although same). 230, 169 the in State v. Kan. sentially Similarly, Cosby, “ (2007), P.3d 1128 little, we reiterated that use our of if any, ” likelihood of the trial’ result the is changing equivalent “ to declare belief that it was harmless Chapmans ‘willingness ” a reasonable doubt.’ 285 Kan. at 252. The basis beyond Cosby, for our conclusion that there no is difference between repeated the is standards source of the explained, part, by examining “little, if likelihood” die any, phrase discussing analysis in more detail. Chapman “little,

The source of if likelihood” is any, language Chapman However, itself. not found in phrase part opinion in which the United States Court established the federal Supreme Instead, constitutional harmless error standard. is in an phrase earlier section of which Court considered opinion whether a federal constitutional error can ever be harmless. Chap- man, 386 U.S. at 21-22. The Court concluded a federal con- stitutional error could be harmless and rejected argument all federal constitutional errors should automatic reversal. require so, the Court noted that harmless error has been a doing long- feature of both federal law and the law all 50 states. standing rules, found, Harmless error the Court “serve a useful veiy purpose insofar as block aside convictions for small errors they setting little, defects that have likelihood any, having changed if added.) result the trial.” 386 U.S. at 22. (Emphasis Chapman, After harmless, that a federal constitutional error be can holding the Court considered the that should be analysis appropriate ap- It looked to its recent Connecticut, decision in plied. Fahy U.S. (1963), 84 S. Ct. 11 L. Ed. 2d 171 that the holding erroneous admission of obtained re- evidence unconstitutionally “ reversal ‘a because there was reasonable tire ev- quired possibility ” idence have contributed to the conviction.’ complained might 386 U.S. at 86-87). 375 U.S. Chapman, (quoting Fahy, Court then addressed the which of Chapman question party error, should have the of burden harmless showing presumably because was on silent the Fahy point: error, error, constitutional in “Certainly evi- illegally admitting prejudicial highly comments, dence or casts on someone other than the it a person prejudiced by that that the common- harmless. It is for reason original show it was burden to the of error either to the the burden beneficiary law harmless-error rule put his a reversal of obtained was or to suffer erroneously that there no injury prove 386 U.S. at 24. Chapman, judgment.” harmlessness with of the burden showing Fahy’s Integrating contributed that the evidence have “reasonable might possibility standard, the Court created fed- the to conviction” the Chapman standard: harmless error eral constitutional litde, o. if our Connecticut difference between statement Fahy “There any, the evidence a about ‘whether there is reasonable complained possibility of a con- contributed to the conviction’ beneficiary have requiring might that the error to a reasonable doubt complained stitutional error beyond prove We, therefore, do than adhere no more did contribute to the verdict obtained. do, hold, we as we now that before a case when our Fahy meaning harmless, able to declare can be held the court must be federal constitutional error 386 U.S. at a reasonable doubt.” that it was harmless beyond Chapman, belief 24. concluded the standard

While the United States Court Supreme court, this had the same Cosby, meaning, Fahy Chapman ” “ ‘little, this court if likelihood’ used noted the any, wording federal harmless error standard when constitutional applying so, Even we from that used in either of those cases. different nor that neither concluded Chapman [the Fleury] “unequivocally stan- from formulations differs functionally Fahy’s substantively Kan. at 252. dard.” Cosby, conclusion that is no difference between

Our there phrasing “little, if a reasonable standard as likelihood” and “beyond any, decision doubt” is validated the United States Court’s Supreme States, S. Ct. 144 L. Ed. Neder v. United 527 U.S. Neder, (1999). 2d 35 Court held that federal constitu- “Is tional harmless error standard asks: it clear reasonable beyond have that a doubt rational would defendant] [convicted jury Neder, standard, the error?” 527 U.S. 18. This Court absent said, small that have aside convictions for errors prevents setting ” “ ‘little, the trial.’ if the result of likelihood any, having changed “little, if words, Neder, 527 U.S. at 19. In other any, phrase that is likelihood” states a level “beyond equivalent certainty “ (the doubt.” See reasonable 386 U.S. at 24 "reason- Chapman, ” able the error contributed to verdict standard is possibility’ the same as the a reasonable doubt” the “error did ‘"beyond standard). contribute to the verdict” This level doubt, of a reasonable rea- high certainty beyond— little, sonable if likelihood—was intended to set any, possibility, a standard the United States protects rights guaranteed by Yet, time, Constitution. in this court use the began occasionally “little, if likelihood” a verdict language regarding any, affecting Ricks, when nonconstitutional errors as well. State v. analyzing E.g., (1995) 894 P.2d 191 in- (concluding limiting struction for which could consider regarding purposes jury prior litde, conflicts between defendant and homicide victim “had if any, trial, likelihood of the results of the and error therein changing any harmless.”). is When to nonconsti- stating analysis applicable tutional errors this this has failed to discuss way, usually the difference in level the standard of certainty i.e.,— the burden of to be consid- proof production applied —or eration of nonconstitutional as errors to federal consti- compared (For tutional errors. a note on see i4i terminology, Microsoft Limited n.4, S.Ct. Partnership,_U.S__, Ed. L. 2d 131 “burden and distin- (discussing proof’ “burden of which loses if guishing persuasion” [“specifying party balanced”], the evidence is “burden of production” [specifying which must come forward with evidence at various party stages and “standard of of cer- litigation], proof’ [specifying"""degree ” which the factfinder’ or a court must be tainty by reviewing per- suaded the burden of party bearing production].)

5. Level Certainty “little,

It is words, if likelihood” other only any, language —in the level of Ricks and numerous other certainty imposed —in nonconstitutional error cases that is difficult to reconcile with K.S.A. 60-261. The federal constitutional harmless error standard statutes, the Kansas harmless error K.S.A.60-261 Chapman 60-2105, and K.S.A. are based on the same measuring point: whether error noted, affected substantial As we have rights. standard, meas the same substantial we have used Kansas rights trial, the result whether an error ured regardless changed 60-2105 or K.S.A. 60-261 K.S.A. we are of whether applying the United States is consistent with This Supreme Chapman. standard. As the Court of the harmless error Court’s interpretation Benitez, 74, v. 542 U.S. States made clear United Dominguez (2004), 2333, relief error— 81, Ct. 159 L. Ed. 2d 157 from 124 S. States, 750, v. United 328 U.S. whether under Kotteakos Chapman, 1239, (1946)/Federal 764-65, 90 L. Rule of 66 S. Ct. Ed. 1557 (harmless error), 52(a) or Rule of Federal Criminal Procedure 52(b) error) tied in to some Criminal Procedure way (plain —“is effect, with a ef . . . error [which] mean[s] prejudicial prejudicial the a See also United fect on outcome of judicial proceeding.” 258, 2159, Marcus, 270, Ct. 176 L. Ed. States v. 560 U.S. 130 S. (2010) (Fed. (Stevens, R. Crim. Proc. 2d 1012 52[a] J., dissenting) from “a standard” for relief error “which [b] provide unitaxy turns on whether the error in affected substantial question (Fed. Neder, at 7 R. Proc. 527 U.S. Crim. 52[a] “applies rights[.]”); errors”; R. error to all Fed. Crim. Proc. harmless 52[a]’s applying “ errors, to court ‘disre constitutional must analysis reviewing ”). errors that are harmless a reasonable doubt’ gar[d]’ ‘beyond re- Under United States Court’s analysis, Supreme although i.e., constitutional, harmless, lief for of any type plain— error — benchmark, outcome, anal- is based on the effect on the same each a for of error formulated to set ysis differently higher type or lower or level of as to whether the error threshold certainty words, In other standard of varies affected outcome. proof which court must be persuaded degree certainty by Benitez, 542 the error did affect the See outcome. Dominguez (Scalia, (the U.S. at 86 Court has created too many J., dissenting) the assess- the “standards probability relating gradations ment of the outcome of the trial would have been differ- whether Abrahamson, occurred); if the 507 ent” had not Brecht error 619, 653-56, 1710, 353, 2d 113 S. Ct. 123 L. Ed. reh. denied U.S. (1993) (O’Connor, (harmless re- U.S. 968 error 508 J., dissenting) whether it has “sufficient determine quires reviewing would remained even confidence that the verdict have unchanged 564 occurred”;

if the error had not difference between Chapman only R. and the Crim. Kotteakos/Fed. Proc. standard “is the degree confidence” court must have that the error did reviewing outcome); not affect the see also The Riddle of Harmless (Traynor, 34, Error, (1970) courts must assess the risk that (appellate pp. affected error the outcome scale of “sliding probabilities”); Circuit, Harmless Review in Walker, Error the Second 63 Brook (harmless L. Rev. error standards establish the . . . a court before can declare “degree required [an certainty harmless”). error] “harmless a reasonable doubt” threshold Chapman beyond level that the error not affect did

requires highest certainty Brecht, the outcome. See 507 U.S. at 637 (quoting Chapman, U.S. at which U.S. quoted Fahy, concluding standard, under the Kotteakos relief from error is granted only when error outcome; had an actual effect on the under Chap man, relief from is error because there is a required “merely ‘ ’ “reasonable that trial error contributed to the ver possibility” Lane, United States v. dict”); 438, 446 n.9, 106 474 U.S. S. Ct. 88 L. Ed. 2d 814 constitutional harmless error (Chapmans standard “is more than onerous for standard non- considerably Kotteakos, 750). constitutional errors” 328 U.S. adopted law, federal (nonconstitu- Under all other nonstructural errors errors, review, errors) tional errors on collateral are sub- plain threshold; a less to such errors must be held harmless ject stringent is where there no “reasonable the error affected the probability” Marcus, (“reasonable See outcome. 130 S. Ct. at 2164 probability” outcome, that the error affected not “any possibility,” appro- standard for a whether affected error sub- priate determining plain Benitez, 52[b]); stantial under R. Fed. Crim. Proc. rights Dominguez “ ” (a at 81-82 U.S. error substantial ‘affects as used plain rights’ “ in Fed. R. Crim. Proc. where there is a ‘reasonable 52[b] prob- ” that, error, but for the the outcome would have been ability’ different). Which threshold or level of certainty probability —reasonable

reasonable be to K.S.A. 60-261 and possibility applied —should K.S.A. 60-2105 when nonconstitutional error is has involved not clear, in State addressed as however. been Recently, point (2010), Shadden, in which we 235 P.3d Kan. Marcus, of a 130 S. Ct. threshold on relied reject ” “ had affected the outcome of a trial. that an error possibility’ Marcus, States Court discussed the the United Supreme 52(b), Proc. error of Fed. R. Crim. which harmless per- provision court to error that affects mits a federal recognize “plain appellate circumstances in which The Court detañed four substantial rights.” “ one of which is when error ‘affected the rule could be applied, which in the case means’ substantial ordinary rights, appellant’s ” of the district court it ‘affected the outcome proceedings.’ Marcus, of cer- 130 S. Ct. at 2164. Court discussed level circumstance, case, “In the in this stating: ordinary tainty required means meet this standard an error must be which ‘prejudicial,’ that the that there must a reasonable error affected be probability added.) of the trial. the outcome [Citations omitted.]” (Emphasis Marcus, 130 S. at 2164. Ct. Shadden, Marcus, Kan. at we concluded

Citing had a Kansas Court of erred in conviction based reversing Appeals the mere that a error had affected on nonconstitutional possibility Marcus, the outcome of a trial. Based we a reasonable applied af- level to determine whether the error of certainty probability fected the outcome proceeding. these various we conclude that before

Synthesizing holdings, Kansas court can an error it must declare harmless determine did not error affect substantial it will party’s rights, meaning or did not affect the trial’s outcome. The degree certainty by which court must be that the error did not affect persuaded the outcome of the trial will on whether the error vary depending a United States If the Constitution. implicates right guaranteed by does, it a Kansas court must be a reasonable persuaded beyond outcome, i.e., doubt that there was no on the trial’s there impact no reasonable that the verdict. error contributed to the possibility a im- If United States Constitution is not right guaranteed by a court must be that there is no rea- Kansas plicated, persuaded sonable that the error did affect the outcome of will or probability (Because the trial. Ward claims a of violation guaranteed by rights Constitution, the United of States whether an error question a the Kansas Constitution but implicates right guaranteed by and, not the United States Constitution can declared be harmless can, if it what of level would is not certainty apply presented and, therefore, Likewise, this case is not determined. we do not address the to be in the context of a collateral analysis applied Brecht, 630-31). review error. See U.S. at said, That with the clarification that a reasonable probability threshold under K.S.A. 2010 60-261 and K.S.A. 60- applies Supp. 2105, little, it is to talk about error if confusing “having any, likelihood” of trial’s outcome. This affecting language suggests threshold, reasonable doubt which is the context which the lan- contrast, In used the United guage originated. wording States when Court harmless error in a non- Supreme discussing constitutional “little, error does not include if setting phrase and, therefore, likelihood” avoids for confusion. any, potential constitutional, harmless, Court all considers errors — substantial plain by benchmark affecting justice, meaning — Then, outcome it affecting proceeding. applies ap- level of Our review of that has re- propriate certainty. history sulted from the this court has used us varying wording persuades that the under K.S.A. 2010 60-261 and K.S.A. 60- analysis Supp. 2105 should with be similar and without the phrased consistency “little, if likelihood” any, phrase. addition, reference, we our clarify frequent primarily cases, misconduct both harmlessness

prosecutorial satisfying standards —K.S.A. 2010 60-261 and v. Supp. Chapman California, 824, (1967) U.S. 87 S. Ct. 17 L. Ed. 2d 705 —should not be read to there are two different tests. State v. imply E.g., 121-22, 238 P.3d 251 Kemble, (2010) 291 Kan. (using language standards); Tosh, both State 91 P.3d Syl. ¶ statement). Rather, discussed, basis for as (discussing there is one benchmark whether substantial is affected justice with different levels certainty required.

567 6. Burden Production Who carries

One further of confusion remains: the burden point that there to establish is no reasonable production possibility that the error affected or will affect the out reasonable probability mistrial, come? In the context of a motion for we have frequently See, the burden of on the defendant. e.g., imposed production Foster, 696, 717, 721, State v. (2010) (stat 290 Kan. 233 P.3d 265 cases, error). harmless In other we have often stated the utory fashion, standard in a burden-neutral an merely concluding appel late court must be convinced the not affect the error did outcome Wells, State v. 1219, 1233, 1238-39, of the trial. 221 E.g., (2009) P.3d 561 harmless error and Chapman). (statutory A recent case considered the United States Court Supreme raises a of whether the burden can be on a de question imposed if fendant the federal constitutional harmless error standard is be In Gamache v. 131 S. Ct. California,_U.S._, ing applied. 591, 178 (2010), L. Ed. 2d 514 the Court denied a for writ petition of certiorari in which a criminal defendant review of the sought California Court’s that a federal constitutional Supreme finding error was harmless. the Court voted to Although unanimously deny four in a statement out that petition, justices joined pointing the California court had a defendant to estab incorrectly required error, lish from the prejudice alleged stating: 18, 24, 824, “Under our decision in v. 386 U.S. 87 S. Ct. Chapman California, (1967), 17 L. Ed. 2d 705 must the burden of prosecution carry showing a constitutional trial error is harmless a reasonable doubt. See also Deck beyond Missouri, 2007, 544 U.S. 125 Ct. S. 161 L. Ed. 2d 953 (‘[W]here court, without orders the defendant to wear justification, adequate shackles will be seen . . . State must [t]he jury prove “beyond reasonable doubt that the error of did not contribute to [shackling] complained ’ 24, 824)); the verdict obtained” at 87 U.S. S.Ct. United Chapman, (quoting Benitez, 74, 81, n.7, States v. 542 U.S. 124 S.Ct. 159 L.Ed.2d Dominguez (2004) (“When the Government has burden of as addressing prejudice, conviction, error as harmless on direct review of the criminal excusing preserved it is not effect on the outcome of the case’ enough negate Chapman, (citing U.S., 824); Fulminante, 279, 295-296, 87 S.Ct. Arizona v. 499 U.S. (1991) (‘The S.Ct. 113 L.Ed.2d 302 Court has the to review the power record de novo order to determine an error’s harmlessness. In so it must doing, determined whether the State has met its burden of that the

be demonstrating (citations omitted)). “error” did not contribute to conviction’ [defendant’s] Court, however, stated, “The California the absence of miscon- ‘[I]n Supreme duct, the burden remains with the to demonstrate under the prejudice defendant 4th, usual standard for trial error.’ 48 Cal. 106 ordinary Cal.Rptr.3d P.3d, added). at 387 It is not clear what the court intended in (emphasis the burden to the defendant to demonstrate but if it meant allocating prejudice, that the defendant bore the burden of that would contravene persuasion, convey Gamache, 131 at 592. S. Ct. [Citations omitted.]” Chapman. The four concluded the allocation of the burden did not justices that the was harmless in Gamache. conclusion error impact Nevertheless, the noted that four “the allocation of the justices burden of harmlessness can be outcome determinative in proving cases” “in future cases the courts some California should take care to ensure that their burden allocation conforms to the com- Gamache, mands of 131 S. Ct. at 593. Chapman.” We heed this even Gamache is not warning though controlling as it is a statement four related to a denial of merely justices certiorari. We do so because we find the statements justices’ per First, for suasive several reasons. “because the standard of review (like error) of harmless is applicability part parcel itself, federal a state court be from right may prohibited adopting standards of review that are more deferential than the standards LaFave, Israel, Kerr, federal courts.” & Crim adopted by King 27.5(e) (3d 2007). Second, inal Procedure ed. we with the § agree four that the allocation of the burden can be outcome de justices and, case, terminative in such a would Chapman require party favored the State—to the burden of usually cariy error — Third, a state court decision that is to or production. contrary ap the federal constitutional harmless error standard “in an ‘ob plies manner,” unreasonable’ to federal habeas re jectively subject 12, 17-18, view. Mitchell 540 U.S. 124 S. Ct. 157 L. Esparza, (2003). Ed. 2d 263 on occasion we have im Finally, appropriately the burden on the State as the from the posed party benefitting error. State v. 40 P.3d alleged E.g., Kleypas, (2001), (2002). cert. denied 537 U.S. 834 the better is to the federal con- Consequently, practice express stitutional harmless error standard as we did in “A con- Kleypas: error be declared harmless where the ben- stitutional may [party a reasonable doubt that the from error] proves beyond efitting of did not substantial it error [affect complained rights, meaning the verdict did contribute to obtained.” Kan. at not] Kleypas, 24). 386 U.S. at 1084 (citing Chapman, we the federal constitutional Because harmless ultimately apply case, we need error standard this not determine which party carries the burden of the effect of a noncon- production regarding stitutional error under K.S.A. 60-261 or K.S.A. 60-2105.

7. Standard Review Summary mind, With these different we restate the test points two-step First, that frames the for motion for mistrial: was there analysis Second, so, failure in the fundamental if did this proceeding? fundamental failure result an To determine whether injustice? an error it makes with the trial in- without impossible proceed a trial must court assess whether the fundamental failure justice, affected a substantial which it means will or did affect party’s rights, outcome of the trial of the entire record. The light degree which the court must be that the error certainty by persuaded did affect the outcome will on whether the vary depending fundamental failure infringes upon right guaranteed by not, United States Constitution. If it does the trial court should 60-261 and determine if K.S.A. there is a reasonable apply prob- that the error will or did affect the outcome of the trial in ability of the entire record. If the fundamental failure does light infringe Constitution, the United States the trial upon right guaranteed by court should the constitutional harmless error de- apply analysis fined in 386 U.S. 87 S. Ct. 17 L. California, Chapman (1967), Ed. 2d reh. denied 386 U.S. 987 in which case the error be declared harmless where the from may party benefitting the error a reasonable doubt that the error com- proves beyond of will not or did not affect the outcome of the trial in plained light record, i.e., of the entire there is no reasonable proves possibility that the error affected the verdict. whether the error Regardless constitutional, is one factor to be considered is whether any damage caused the error can be or was removed or ad- mitigated by

monition, instruction, or other curative action. An appellate the second for an will review the entire injustice step reviewing the same K.S.A. 60-261 and record and use analysis, applying K.S.A. 60-2105 or else on the nature of the Chapman, depending affected. right allegedly a Fair Trial

B. Right test, this we must first determine whether the Applying two-step trial it was not a fundamental court erred failure determining the trial to allow West and to be identified as Ward’s as- Jackson sociates while dressed in were trial jail they clothing. Again, court will have abused its discretion if we determine this conclusion fanciful, unreasonable, (1) i.e., if is or no reasonable arbitrary, per- court; (2) son would have taken the view the trial adopted by law, i.e., based on an error of if the discretion is an guided by conclusion; fact, i.e., erroneous on an is based error of legal if substantial evidence does not a factual competent support finding which a of law conclusion or the exercise of dis- prerequisite Gonzalez, 747, 755-56, cretion is based. See State v. 290 Kan. (2010). P.3d

The State that the issue relates to the trial court’s control argues trial, courtroom an area where the trial traditionally See, Kemble, court is broad discretion. State v. given e.g., (2010). hand, 238 P.3d 251 On the other Ward suggests that there was a fundamental failure in her trial and the trial court’s determination was an based on error of law that failed to recognize on her to be innocent and her infringement right presumed trial, to a fair of which are both fundamental constitutional right the Sixth and Fourteenth Amendments to the rights guaranteed by Williams, 501, United States Constitution. See Estelle v. 425 U.S. 503, 1691, 126, 96 S. Ct. 48 L. Ed. 2d reh. denied 426 U.S. (1976) (“The innocence, not articulated presumption although Constitution, in the is a basic of a fair trial under our component criminal innocence is system justice.”). presumption founded on the that “one accused of a crime is entitled principle to have or innocence determined on basis of guilt solely trial, evidence and not of official introduced on grounds suspi- cion, indictment, continued or other circumstances not custody, adduced as at trial.” 436 U.S. proof Taylor Kentucky, 1930, (1978). noted, 98 Ct. 56 L. Ed. 2d 468 As S. previously addition to Estelle as Ward cites to State v. Alex- citing support, ander, (1986), Hall, P.2d 1126 and State v. (1976). Kan. 556 P.2d 413

Estelle, Alexander, case, and Hall are from this distinguishable however, because in those cases the arose from circum- prejudice stances that the inwas The decisions did showing jail. defendant not discuss the of evidence that someone other impact showing us, than the defendant was in Before neither has cited jail. party on the issue of whether witnesses for the any authority prosecution individuals attired in and seated in the may identify jail clothing courtroom as associates of the defendant. Our research has pro- vided minimal guidance.

1. Witness in Clothing Jail What this research has revealed is that the law is less settled whether witnesses should be regarding permitted testify jail but a have concluded that re- clothing, majority jurisdictions a witness who is called the State to quiring by testify jail clothing affect Annot., the defendant’s a fair trial. See 16A.L.R. may right 4th 1356. The results are if not the same the witness is called by the defense. We addressed this situation in State v. Bradford, (1993). Kan. 864 P.2d 680 the defendant moved for a mistrial after a defense Bradford,

witness testified while chains and The defendant jail clothing. the use of chains could have caused to base their argued jurors evaluation of the witness’ factors. The credibility unacceptable trial court denied the On motion. court ob- appeal, Bradford served that the defendant called this witness to testify concerning events that occurred while he and the in- witness were allegedly carcerated. The defendant did not that either the cloth- request jail or chains be removed. The court stated that the wit- ing Bradford Bradford, ness’ “courtroom was controlled appearance the State.” 254 Kan. at 143. no abuse of discre- Bradford, Finding court, tion on the of the trial we further noted that the court part when the witness’ have the chains removed offered to appearance 143. attention. 254 Kan. at was first to its Bradford, brought the' decision is not are so The facts of distinguishable Bradford Here, we do not have a witness called being particularly helpful. defense; rather the State controlled West’s by Jackson’s Further, the in the courtroom. individuals wearing jail appearance witnesses and had not been listed as in our case were not clothing witnesses-,so there was no advance notice-to Ward. De- potential distinctions, it that rationale these is noteworthy spite Bradford’s in trial that a witness should not testify jury implies ordinarily while wearing jail clothing. of that conclusion and to

To emphasize appropriateness sug- basis is the of in- that the conclusion’s doctrinal presumption gest nocence, Ward us to the rationale used courts by points appellate in that have of hav- other jurisdictions disapproved practice State, in These cases—Gibson v. witnesses testify jail clothing. ing (Tex. 2007), Kuchera, 198 233 S.W.3d 447 and State v. App. N.J. (2009)do her A.2d 1052 how- fully support argument, ever. cases, Gibson,

In the first of these the Texas Court of Appeals found it was within the trial court’s discretion to witnesses require There, if warranted it. to the circumstances jail clothing appear the defendant knew the witness was in and would be jail likely called to the defendant did not make a but testify, timely request that the witness to in street The trial be permitted testify clothing. witness’ court instructed jury jail clothing disregard handcuffs. the Texas Court of believed “it is Although Appeals that no witness it held that better require testify jail clothing,” ¡the the trial court did not abuse its discretion in motion denying Gibson, 233 S.W.3d at 453. for mistrial. Ward, Kuchera,

In the second case cited the New Jersey rule, Court concluded that as a witnesses for ei- Supreme general ther the State or defense should not testify jail clothing. rule, however, the court’s was tempered by recognition general such attire be the trial court “affirmatively may permitted Kuchera, Still, the exercise of its discretion.” at 486. N.J. narrowed that discretion a witness to by indicating requiring “ ” interest,’ Kuchera, in no vital State ‘further[s] testify jail clothing Artwell, 499 State v. 177 198 at 539 832 (quoting N.J. N.J. [2003]), 295 it A.2d the defendant in terms similarlyprejudices “ witness’ and the of of his associa credibility suggestion ‘guilt ” Kuchera, Artwell, 539). tion.’ at 499 (quoting N.J. N.J. Ward out that unlike the situations in Gibson and Kuch- points era, Ward, counsel, her did voice an to the through objection pres- of ence individuals. She also how- jail-clothed acknowledges, ever, that these cases do not address the issue before this directly court where it is the of a nonwitness that raises a appearance ques- tion prejudice.

Furthermore, several other cases witnesses do not regarding Ward’s While these courts have support arguments. recognized risk of unfair to a defendant when witnesses are forced prejudice restraints, in or have concluded that testify jail clothing many does not affect the defendant’s practice adversely presumption of innocence or that the defendant is to commit imply disposed Rather, crimes. has been seen as potential prejudice arising See, because of the on the witness’ Harrell impact credibility. e.g., Israel, (7th v. 1982) 672 F.2d Cir. the shack (“Although of defense witnesses be less to the accused ling may prejudicial it innocence, because does not affect the directly presumption . . . nevertheless it harm his defense from his may by detracting witness’ 260, 264, v. 1 Cal. 4th credibility.”); People Froehlig, App. (1991) (“The 1 Cal. 2d 858 aof defense witness Rptr. appearance not, attired in course, clothes does affect the prison adversely of innocence or with it the inference that the presumption cariy defendant is a to commit crimes. . . . The credi person disposed of a defense witness in observed attire bility jury prison may be but the the defense is consid suspect, prejudicial impact upon ”); Brown, ered ‘less Commonwealth v. 364 Mass. consequential.’ 471, 475, (1974) (“The 305 N.E.2d 830 of a witness . . . shackling influence a and further hurt the may jury’s judgment credibility defendant in so far as the witness is conceived to be associated with him.”); State, 55, 58, (2007) 123 Nev. 154 P.3d 639 Hightower an incarcerated defense witness to (“[Requiring appear prison the accused the witness’s clothing may prejudice by undermining manner.”); in an State v. Hartzog, credibility impermissible (“While 635 P.2d 694 a shackled witness Wash. 2d of inno- affect [defendant’s] directly presumption may cence, that there be some inherent it seems may prejudice plain defendant, the witness’ as the doubt may credibility.”). juiy case, are about the West

In this we not concerned credibility and these cases do not who did not testify, support Jackson, that their in the courtroom while cloth- conclusion jail presence on Ward’s to be innocent. presumed ing infringed right 2. Bystanders Clothing Jail we found where a the few cases

Similarly, prisoner witness, into the courtroom but not called as courts brought but found the to be questioned practice potential prejudice than that a defendant in be- less caused jail by clothing appearing fore a jury. State, (Fla. in Hedrick v. 6 So. 3d 688 Dist.

For example, App. 2009), that counsel should the defendant claimed defense have at trial in shackles and to the codefendants objected appearing The codefendants were into the court- prison clothing. brought victims, who identified room die of one during testimony as the tallest of the attackers. The State demon- the defendant of this the codefendants. strated the by accuracy opinion displaying that have The defendant’s motion alleged jury may perceived him as association because the codefendants’ guilty appearance in were in and shackles indicated they custody. prison clothing Yet, the Hedrick court stated that the defendant failed to show The court observed that the defense was that the co- prejudice. victim, and the de- defendants were the ones who had beaten a The determined that fendant was court “[t]he merely bystander. in had no on the co-defendants’ appearance prison garb bearing Hedrick, 3d at 694. defense.” So. decision, addition, cited to a the Hedrick court Mississippi 2002), State, (Miss. in v. 818 So. 2d 1163 which

Morgan of a State’s witness before considered the error possible appearing in court noted shackles or jury jail clothing. Mississippi it was a defendant or line of cases prejudicial bring holding a defense witness into the courtroom in shackles or jail clothing but the cases because the witness was a distinguished prosecution witness. the court reasoned the defense was not Consequently, to the witness’ by any damage prejudiced credibility. Morgan, So. 2d 1174. case, State, (Tex. 1988),

Another 761 S.W.2d 89 Craig App. case, is also similar to this the association between the although and the defendant was weaker. In prisoner Craig, during case-in-chief, State’s a female witness was called to the stand to bar, establish certain events which occurred before allegedly the abduction and of the victim. The witness testified that killing she observed the victim with the defendant and a “taller with man dark or black hair.” 761 S.W.2d at 93. After the witness long, Craig, counsel, was cross-examined defense the State a male brought into the courtroom irons and asked person jail clothing leg the witness if she him. She that she did not. recognized responded mistrial, Defense counsel made a motion for that the in- arguing dividual’s irons was presentation jail clothing leg prejudicial.

The Texas Court of affirmed the trial court’s denial of Appeals the motion and the case from those where the de- distinguished fendant or a witness is forced to in restraints or testify jail clothing. 761 S.W.2d 94-95. The court stated: Craig, Craig record, “Under our this male was not identified and was not person presented aas witness. Some male jury the courtroom. This person simply appeared was not in the witness box. . . . person placed record, “. . . Under this entire we find that the of this male appearance person courtroom, attire, in the in restraint and in made no contribution jail to the con- viction or to the punishment and we so find a reason- [defendant] beyond able doubt.” 761 S.W. 2d at 94. Craig, a nonwitness was into the courtroom in Reese Finally, brought State, 241 Ga. (1999). 526 S.E.2d 867 The defendant App. a codefendant into the courtroom in cloth argued bringing jail for the of identification was because it as ing purpose prejudicial sociated the defendant with someone a convicted of crime. In re this the court noted that the was not told jecting argument, jury that the Reese, codefendant had been convicted. 241 Ga. App. 353; Beto, 1066, 1066-67 (5th 1970), see also Cook v. 425 F.2d Cir. of habeas 400 U.S. 944

cert. denied (summary rejection into defendant’s codefendant claim based on being brought corpus dressed in court for identification while the courtroom jail clothing; defendant). that this resulted no found prejudice Cases 3. These Synthesizing Applying defendant, witness, cases, to a or All whether of these relating into the courtroom are nonwitness jail clothing, being brought critical of the with this or We practice. agree expressly impliedly conclude, in first of our criticism and step analysis, given trial, law that taints a a trial in the case consensus jail clothing discretion to control the courtroom court almost abuses its always defendant, witness, to be it a or nonwitness when allows brought without articulated before justification jury jail clothing it for the to wear is necessary why person jail clothing explaining to the and does not consider an admonition or instruction giving or the incar- that it should not consider the jury clothing person’s cases, advisable, (In ceration. an admonition not be but some may noted, and cons should be Aswe have discretion pros weighed.) a trial does not take into account the is abused when court legal situation, law, In this the case that control its decision. principles Court, indicate decisions of the United States Supreme including trial should avoid the taint of trial. jail clothing Gonzalez, 290 this case law is an abuse of discretion. See Ignoring Kan. at 755-56.

While the Court of acknowledged general propo- Appeals not have been in sition that West and should jail clothing, Jackson it found a exercise of discretion because of purposes proper Yet, them identified. this the State for justification wanting given it the reason for their does presence; suggest merely explains for the two to be in jail clothing explain why any justification not have been made for them to could appear arrangements street clothes.

C. Were Substantial Prejudice: Rights Affected? revealed,

Nevertheless, has as our discussion jail clothing be declared. this trial not mean that a mistrial must taint on does a fundamental failure in the after a finding Typically, proceeding, Here, however, trial court would assess the effect. prejudicial and, therefore, trial court did not find error or misconduct did not curative instructions or determine whether admonitions were war- ranted and did not caused the error. gauge prejudice this,

In cases such as where an court finds that the trial appellate court erred in its first whether there ais step analysis regarding failure in a fundamental did not proceeding consequently assessment, amake court undertake prejudice appellate may the trial the second without benefit of court’s assessment. The step role of the this circumstance is to review the appellate if entire record and determine de novo a trial court’s error was harmless. K.S.A. 60-2105. This is a role an court fre- appellate undertakes, and K.S.A. 60-261 and K.S.A. 60-2105 or else quently 386 U.S. the tools for this assessment. Chapman, provide tools, In those the Court of the bur- applying Appeals imposed Ward, i.e., den of Ward to come forward production required evidence, and, with without the level of stating certainty required, threshold, the substantial State v. applied rights citing Albright, 418, 425-26, (2007); 153 P.3d 497 see K.S.A. 60-261. If the United States Constitution is right guaranteed by implicated, as Ward both the trial court and the Court of suggests, Appeals should have the federal constitutional harmless error stan- applied dard threshold) reasonable doubt/reasonable (beyond possibility the burden of on the State. imposed production whether the Court of erred in this assessing Appeals regard, we note that courts from other have jurisdictions generally found the of innocence to be when the presumption implicated individual was someone other than the wearing jail clothing defendant. A trend is not as clear with to whether the due regard to a fair trial has been however. Neverthe- process right infringed, less, we conclude that the fair to a trial and the to a right right of innocence as the Sixth and Four- presumption guaranteed by teenth Amendments to the United States Constitution are impli- cated when individuals are identified to the as jail clothing jury associates of a defendant. This means should have been Chapman the Court of when and will applied by Appeals assessing prejudice if the error was harmless. this court in be determining applied by standard, declared this the error be harmless under may Again, error, State, from the where the as party benefitting proves did not a reasonable doubt the error complained beyond there is not a reasonable affect substantial rights, meaning possi- the verdict that the error contributed to obtained. bility We that burden on the State at this recognize imposing because, noted, the rule as Kansas cases have past point changes in the burden of on defendant establishing placed prejudice This shift in burden is of no in this mistrial cases. consequence however, case, because the State as to why presented arguments there was no These are consistent with those prejudice. arguments made in the cases we have discussed in which courts found it harm- less to have a nonwitness in the courtroom in jail clothing. cases,

It is that in some of those significant appellate level of and still found the applied higher certainty presence nonwitness in be harmless. do not read of a to We jail clothing these as this decision on the fact that the con- cases basing solely duct in occurred outside the witness stand. To this extent question are with which has the cases consistent Kansas precedent, rejected State v. See, 89, 96-97, such a distinction. e.g., Leaper, (mistrial 238 P.3d 266 after juror reported requested seeing take while witness offered exhibit court- place pocket leaving room; fact that witness’ behavior occurred courtroom negative than was not rather on witness stand dispositive question Foster, State v. whether mistrial should have been granted); (2010) (mistrial Kan. 233 P.3d 265 after de- requested victim’s fendant’s father left courtroom tes- during rape weeping Rather, it to be that other factors —such as the timony). appears defendant and an attenuated of the evidence against strength connection between the individual’s incarceration unexplained and the finding prejudice. charged weigh against crimes — factors, West was identified as a co- those Considering although Ward, statement that he had there was never conspirator any Further, been found of that Ward’s own charge. arguments guilty to at West or others to that while attempted point finger suggest crimes she was not Ward was at the scene of the present directly addition, sales. In Ward raised the involved the cocaine possi- of misidentification. For defense counsel bility example, implied was a mistake when Ward was identified in a there photo lineup doubt arose Ward reasonable because and her suggested looked similar One Jackson, veiy daughter, photo lineup. even conclude that the of West and could presence during Jackson transactions benefitted the defense’s which focused on the theory, admissions that never saw Ward officers’ hand over they physically Stinnett, in to someone else made drugs attempt suggest Also, sales. the defense least that the attempted imply similar of Ward and could lead to misidenti- appearance Jackson fication. the State substantial direct and circumstantial

Finally, presented evidence Ward to four transactions. We connecting separate drug are convinced a reasonable doubt that the State has met beyond its burden of that the witnesses’ identification of proof showing West and dressed in did not affect the outcome jail clothing Jackson of the trial. Sufficiency

II. of Evidence The other issue Ward is that the evidence was insuf- argued by us, ficient to a verdict. Before Ward modifies her suffi- support of the evidence two The ciency argument presents questions. first was not raised before the Court of or in question Appeals review, Ward’s for and we decline to consider the petition question. The second was discussed the Court of question by Appeals, we affirm.

A. Failure to Preserve KS.A. Issue 65-4161(d) raised for the first time in Ward’s brief to specific question this court is whether the State failed to establish that Garfield School, which had been identified as a school located close to a occurred, laundromat where some of the transactions was a drug 65-4161(d). school as defined in K.S.A. This statute cer- prohibits 1,000 tain transactions within feet of a structure “used a drug unified school district or an accredited school for stu- nonpublic dent instruction or attendance or extracurricular activities of pupils 12.” one At

enrolled any grades through kindergarten trial, there was evidence that Garfield School was school public third but Ward attended by kindergartners through graders, argues was used a unified there was no evidence that the school school Star, v. or an accredited school. See State district nonpublic 930, 936, 10 (2000) Kan. P.3d rev. denied Kan. 903 2d App. (to 1,000 for sale of cocaine within feet of a sustain conviction school, evidence that structure referred to as a State must present 65-4161[d]); school with the definition see also State complies West, 063, 99, 067, (Kan. 2008) 2008 WL 4849472 Nos. App. rev. denied 289 Kan. 1285 (unpublished opinion), (reversing three convictions for insufficient evidence of sale of cocaine within 1,000 State failed that the feet of school because to prove building 1,000 within feet of the three sale transactions was of unified part school). school district or accredited nonpublic noted, As we have this issue was not raised before the Court of Rather, or in Ward’s for review. before Court Appeals petition review, and in her Ward did not to a for Appeals petition point failure to element of a crime and did not distin- prove any specific In a case that is the Kansas one count from another. before guish review, Court on a for an issue cannot Supreme granted petition be raised for the first time before the Court. issue Any Supreme that was not to the Kansas Court of is deemed presented Appeals Schunk, abandoned. See Osterhaus v. 249 P.3d (2011); 8.03(a)(5)(c) (2010 888 see also Court Rule Kan. Supreme 69) (“Issues Ct. R. Annot. in the presented petition, fairly therein, court.”). included will not be considered the by we will not address the merits of Ward’s claim Consequently, that the that with State failed to establish Garfield School complies 65-4161(d). the definition K.S.A.

R. in General the Evidence Sufficiency of issue, the she made

In her second Ward reasserts arguments i.e., no evidence before the Court of that there was direct Appeals, 17 for which was con- that Ward was involved the crimes she lacked victed and that Stinnett’s testimony credibility.

581 review is well known and was cited Our standard of properly by evi- the Court of When examining sufficiency Appeals: case, whether, after in a criminal the standard of review is dence in the most favorable to the all the evidence light pros- reviewing ecution, a court is convinced that rational factfinder appellate have found the defendant a reasonable doubt. could guilty beyond Northcutt, 224, 231, (2010); v. 290 Kan. 224 P.3d 564 State State Gant, 76, 83, (2009). 673 We with the 288 Kan. P.3d agree Court of that there is evidence of Ward’s involve- Appeals strong evidence, ment, direct and the issue of including credibility and will not resolved be by jury reweighed appeal. In the most favorable to the Stinnett’s testi- light prosecution, that the four controlled took established mony drug buys place. trial, was in Stinnett’s but Certainly, credibility question during the defense was cross-ex- given ample opportunity thoroughly amine her. was made aware that Stinnett was Additionally, jury with law enforcement in for the dismissal of cooperating exchange her, related, which the trial some of were and against drug charges instruction cautionary regarding testimony gave As confidential informant. noted Court by Appeals, aptly of Stinnett was within the of the credibility solely province jury court, not within that of an which does not evi- appellate reweigh dence, witnesses, assess the or resolve credibility conflicting Gant, evidence. 288 Kan. at 80.

Ward also asserts her convictions should be reversed because there is circumstantial evidence to them. The only support legal of this is ill-founded because the law premise argument clearly allows a conviction of even the offense to be based on gravest Becker, 842, 852, circumstantial evidence. State v. (2010) P.3d 424 (stating general principle noting specific intent need not be shown direct shown but be proof may acts, circumstances, and reasonable inferences “deducible there- from”); State v. Kan. P.3d Tyler, (circumstantial evidence is evidence of events or circumstances from which reasonable factfinder infer existence of material may issue). fact Ward was free to to the Certainly, jury argue the circumstantial of much the evidence created reason- nature doubt, we the circumstantial evidence

able but on appeal accept in the favorable to the State when most sufficiency. light assessing Further, the factual of Ward’s is also ill-founded premise argument there direct evidence —observations—of the transac- because tions officers and Stinnett.

In this in Ward’s for review and regard, petition supplemental she focuses on the fact that Detective ad- arguments, Wagenseller mitted his that he did not see Ward and during testimony actually Stinnett or cocaine of the four con- money any exchange during trolled that he never recovered marked drug buys, any purchase Ward, from and that no law enforcement officers money actually saw Stinnett dial Ward’s number. And even there phone though was a of the of some controlled videotape buys, Troy Deputy Briggs testified Ward could not seen in be actually any recordings. indicated that he saw Stinnett enter and exit Ward’s house Briggs 25 and but he admitted that he could January January not observe what inside. happened

Yet, transactions, the officers observed saw many aspects Suburban, conversations, Ward in the blue overheard verified of Stinnett’s For Officer many aspects testimony. example, Roy Williams testified that to this case he had known Ward for prior about 5 had numerous conversations with Ward his years aas narcotics officer. Williams confirmed that Stinnett capacity dialed Ward’s number each of controlled phone drug buys. He also testified that he Ward’s voice on the recognized audiotapes of the transactions and that he knew Ward owned a blue Suburban. Other officers taken to control and to explained steps buys maintain audio and video surveillance that allowed them to witness nature of the events. general evidence, that, of this we conclude even light though officers who monitored die did transactions not witness the drug Stinnett, actual and cocaine between Ward and exchange money their observations and when considered with Stin- testimony, along nett’s more than sufficient evidence that Ward testimony, provide sold Stinnett crack cocaine on the four occasions identi- separate fied in the charges.

Affirmed. District Judge, assigned. Miller,

Paul E.

# # & Rosen, I with the well-reasoned J., dissenting: agree majority’s to where it finds the error in the trial court’s opinion up point failure to the defendant’s motion for mistrial harmless. As grant concludes, a trial court almost abuses its dis- majority always cretion to take control of the courtroom when it allows witnesses or nonwitnesses to be before a without brought jury jail clothing articulated justification.

Much and has been to the creation of thought planning given the courtroom in which the is to be carried setting pursuit justice out. We strive for an consideration, ambience of dignity, respect, and, all, most of in which each witness’ impartiality, testimony due its When inmates in their given evidentiaiy weight. inescapably identifiable attire are into bright orange prison purposely paraded the courtroom as of die of the of an ac- part staging prosecution cused, it cannot but of the help prejudice jury’s perception defendant, associations of the lifestyle thereby compromising the heart of the we so strive to impartial proceedings fervently achieve. case,

In this the State’s of the procuring involuntary appearance of West and in the courtroom and their forced gallery Jackson in Ward’s trial while participation identified wearing being their attire set them from that specifically by prison clearly apart and citizens that are observers of a group peers typically public trial. attention to the Repeatedly calling jury’s orange jumpsuits that these individuals were in that wearing blatantly prejudicial it called the attention to the directly between jury’s relationship the defendant and the which served to spectators “oranges,” declare the defendant sartorial association.” All that was “guilty by a bar show/vaudeville was a theater orchestra par- playing

missing “Send in the Cons.” entitled Sondheim’s melody ody Stephen I this tactic as pros- manipulation impermissible regard defendant, created immeasurable ecution that prejudice evi- overcome could not be which remaining weight error find the trial court’s her. I would dence failing against and would reverse not harmless motion for mistrial Ward’s grant a fair trial. and remand for in the dissent. J., joins foregoing

Johnson,

Case Details

Case Name: State v. Ward

Court Name: Supreme Court of Kansas

Date Published: Jul 29, 2011

Citation: 256 P.3d 801

Docket Number: 99,549

Court Abbreviation: Kan.