Saturday, February 14, 2009

Actually, you can sequester witnesses

Patrick H. Dunn won in State v. Brinklow, No. 96,231 (Kan. Jan. 30, 2009), obtaining a new trial in a Barber County aggravated indecent liberties prosecution. The KSC agreed that the district court's failure to exercise it's discretion regarding sequestration of witnesses required a new trial:

The mother was present during A.C.'s testimony in which A.C. described the particulars of the alleged criminal acts. In the direct examination of the mother, the prosecutor did not ask the mother to relate what A.C. had told her about the alleged abusive touching. Rather, the prosecutor asked, "Did she tell you, or describe for you the same thing she testified to earlier today?" The response was simply, "Yes." The mother did not merely tailor her testimony to match that of A.C.; the mother adopted A.C.'s testimony by reference. The prosecutor's question was tantamount to asking the mother if her testimony would be the same as A.C.'s testimony. One would be hard-pressed to conceive of a more direct example of one witness tailoring his or her testimony to that of another witness.

Moreover, at a pretrial motion conference, Brinklow's attorney advised the district court that part of the defense strategy was to establish that the mother had a great deal of influence over A.C. Obviously, the defense had to establish that the mother and A.C. were acting together in making a false accusation. That task was hampered by both witnesses being in the courtroom together, so that the mother could simply adopt her daughter's testimony.

In addition, Brinklow complains that he was prejudiced by the trial presence of Betty Jo Mitchell. She testified to being present in the Brinklow home on May 27, 2001, when A.C. related the accusations to the police officer. However, the police officer did not place Mitchell at the residence during the interview. Brinklow argues that he was prevented from challenging Mitchell's presence at the residence by testing her knowledge of what transpired that night because Mitchell was able to learn what happened by observing the testimony of both A.C. and the mother. The Court of Appeals did not specifically address this complaint. Given our ruling on the mother's testimony, we need not analyze the prejudicial effect on Mitchell's testimony.

In conclusion, the district court erred in ruling that it did not have authority to sequester witnesses and consequently erred in failing to exercise its discretion to determine whether witnesses should have been sequestered in this case. The record reveals that the State elicited testimony from the mother which was directly tailored to the testimony of the victim. We cannot declare that the defendant did not suffer any prejudice from the trial court's error.

The KSC also held that the prosecutor engaged in several instances of misconduct including telling the jury "Sometimes you just know."
If a jury cannot convict because common sense tells it the defendant is guilty and cannot convict because it is simply reasonable to believe the defendant did it, then it is likewise improper to convict because the jury just knows that the defendant did it. Such a suggestion is contrary to the concept of proof beyond a reasonable doubt and approaches, if not reaches, the level of gross and flagrant argument. Further, the prosecutor's repeated use of the phrase, "sometimes you just know," indicates an intentional theme which would not rule out the ill-will factor. Moreover, given the absence of forensic evidence and the victim's initial recantation of the allegations, one cannot unequivocally declare the evidence overwhelming and unaffected by the impropriety in the closing argument.
The combination of sequestration error and misconduct resulted in reversal.

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