In limine violation and Doyle violation result in new trial

Rick Kittel and KU Defender Project student Sebastien Orosco won in State v. Pruitt, No. 100,039 (Kan. App. June 19, 2009), winning a new trial in a Lyon County attempted burglary prosecution. There were two trial errors that were of concern to the COA: (1) a violation of an in limine order when an officer/witness answered a question implying prior bad acts and (2) a Doyle violation, which was implicitly conceded in the state's brief. The COA found both errors and rejected the state's argument that they were harmless:

Here, the evidence against Pruitt was not overwhelming. For instance, the jury found Pruitt not guilty of the battery charge. This case depended on the credibility of the witnesses. Previously, we determined that the prosecutor's elicitation of testimony that police knew Pruitt because of "another incident" was a violation of the order in limine. Moreover, the trial court did not instruct the jury to disregard Keiss' testimony. In addition, the violation seemed to be intentional and Keiss' testimony was prejudicial. The prosecutor followed the order in limine violation with a Doyle violation. Although the trial court admonished the jury not to consider Pruitt's post-Miranda silence in its deliberation, the damage had been done in the credibility contest between Surmeier and Pruitt. The Doyle violation was apparently intentional, and Keiss' testimony was very prejudicial. Moreover, there is no telling what effect Keiss' testimony (in violating the order in limine and the post-Miranda silence rule) had in a case primarily based on credibility. As a result, we determine that Pruitt was substantially prejudiced by Keiss' testimony.

The COA also held that an Allen instruction, indicating that another trial would be a burden was improper under Salts (blogged about here), and reversed on that as well. It's another example of Salts resulting in a reversal where defense counsel objected to the pattern instruction, even though it was clearly erroneous in Salts itself.

[Update: the state did not file a PR and the mandate issued on July 23, 2009.]