Prosecutor cannot urge uncharged charges as evidence

Korey Kaul won in State v. Herrera, No. 97,381 (Kan. App. Feb. 27, 2009) obtaining a new trial in a Segwick County aggravated indecent liberties and criminal sodomy prosecution. The proseuctor had argued that "[T]his case came to light and it was appropriately and conservatively charged for the sex acts he did and then the second victim also comes forward. You know, mind you he is not charged with the sex acts of what he did to [V.H.] that are outside the statutes of limitations. Mind you, he is not charged with additional sex act [sic] that came to light in [D.H.'s] second March 8th interview. There is one about a trip on the way to dance from April or May of '04 and there is another shower incident when he molested her breasts and her vaginal area. He is charged with what initially came to light and then was later corroborated in the follow-up interview." The COA held that the reference and argument surrounding uncharged acts was clearly improper:

the State's comments upon the uncharged acts misrepresent the facts related to the crimes charged and introduce facts that were not admitted at trial, such as the reasons the State did not charge Stephano with additional offenses. Such commentary is improper and beyond the permissible bounds of closing argument. We recognize that a prosecutor has a wide latitude to explain evidentiary problems and to draw reasonable inferences from the evidence. Nevertheless, a deduction may be based only upon evidence which was actually introduced.

Moreover, because the comments emphasize uncharged crimes that, although admitted without objection at trial, tend to indicate the criminal defendant's propensity to commit sex crimes and practically invite the jury to reach a compromise verdict, we cannot deem the comments to be insignificant. Multiple reasons might exist for the State's decision not to charge crimes that have been alleged by a victim, not the least of which is the prosecutor's belief that such crimes are not credible. By offering an explanation for failing to charge such crimes, the prosecutor in this case effectively testified and suggested that, save for the operation of law or the poor memory of a victim, Stephano should be facing an even greater punishment than permitted by the charged offenses. This argument was improper.

In addition, it was clearly improper for the prosecutor to go outside the record and tell the jury that Stephano was responsible for more crimes than just the offenses charged in the complaint.

The COA held that the repeated improper references were gross and flagrant and evinced ill will. As a result, it ordered a new trial.

[Update: the state did not file a PR and the mandate isued on April 2, 2009.]