Prosecutorial misconduct results in reversal under the Tosh test

Shawn Minihan won in State v. Simmons, No. 98,770 (Kan. July 8, 2011), obtaining a new trial in a Crawford County rape prosecution. The KSC agreed that there were two instances of misconduct: (1) improper discussion of Stockholm Syndrome and related circumstances during voir dire and (2) improper argument regarding the ongoing impact of the crime on the victim. With regard to the second instance, the state and the COA had agreed the statements were improper, but argued (or held) that the statements did not require reversal, particularly in light of the district court's admonition to ignore them. The KSC disagreed:

In contending that the misconduct did not deny Simmons a fair trial, the State appears to argue the weight of the evidence by principally pointing out that Simmons was not convicted of all crimes. More specifically, he was acquitted on the aggravated kidnapping and aggravated criminal sodomy counts, and the jury failed to reach a verdict on one of the three rape counts.

The State essentially suggests that the prosecutor's comments regarding the Stockholm Syndrome were only relevant to the aggravated kidnapping charge and, because Simmons was acquitted of that charge, the misconduct obviously cannot be reversible error. "Simmons cannot demonstrate that he was prejudiced by these comments concerning kidnap victims when he was acquitted of the [aggravated] kidnapping charge." On the surface, this argument appears meritorious as an important element of aggravated kidnapping is "the taking or confining of a person, accomplished by force, threat or deception." Upon deeper examination, however, we must disagree with the State's surface argument. The prosecutor did not instruct the jury panel during voir dire to limit its consideration of the Stockholm Syndrome to any particular crimes, especially aggravated kidnapping. As mentioned, he instead told them they should generally use the syndrome as their lens when they examined certain evidence, "I ask that you view that evidence [that A.H. maybe identified at times with Simmons] in light of the Stockholm Syndrome." As a result, the prosecutor essentially argued that despite inferences that could be drawn by the jury panel from certain evidence, A.H.'s participation in the sex acts forming the basis for four of the charged crimes was not voluntary. As in the charged crime of aggravated kidnapping, the factor of voluntariness, i.e., consent, also was an absolute defense to the sex crimes. The State needed to negate this defense for Simmons' convictions. Additionally, the jury was never told to disregard the prosecutor's discussion of the Stockholm Syndrome. Nor was it told to disregard his implication that the syndrome explained that A.H. psychologically identified with her captor and therefore could never truly give consent. We observe the jury then convicted Simmons of two counts of rape but was unable to reach a verdict on the third. Simmons, however, relies upon his acquittals of aggravated kidnapping and aggravated criminal sodomy to argue: "The jury must have thus believed that A.H. willingly spent some of the weekend with Mr. Simmons." (Emphasis added.) Given the mixed results of the verdicts, we will not speculate as to the exact effect the State's comments had on the jury during its deliberations on all charges. But we can conclude that the prosecutor's argument that A.H. was not a voluntary participant because of the Stockholm Syndrome could easily have affected important parts of the trial. The State makes a similar argument concerning the prosecutor's comment about A.H.'s thoughts during daily showers for the rest of her life. It contends the admonition worked "because the jury acquitted him of aggravated criminal sodomy, aggravated kidnapping and was unable to reach a verdict on a count of rape."

We must reject this argument for many of the same reasons we rejected the State's argument about the lack of prejudice caused by the Stockholm Syndrome discussion. While admittedly Simmons was not convicted of all charges, he was nevertheless convicted of two rape counts for acts committed during this entire episode. Furthermore, just as we concluded the prosecutor's argument that A.H. was not a voluntary participant because of the Stockholm Syndrome could easily have affected important parts of the trial, the prosecutor's appeal to sympathy for A.H. could have done so as well. Again, given the mixed results of the verdicts, we will not speculate as to the exact effect the showering comment had on the jury during its deliberations on all charges. We pause to note our analysis of the shower comment technically is unfinished. Earlier we saw no valid reason for maintaining a separate, incomplete Tosh test for the specific prosecutorial misconduct scenarios described in Pink, Lumbrera, and Campbell. Similarly, we see no valid analytical reason for maintaining an incomplete Tosh test for when the effect of prosecutorial misconduct is allegedly cured by a timely jury admonition to disregard. Accordingly, the test stated and applied in Jordan and similar decisions is now clarified. As demonstrated above, we apply the Tosh test, with the extent of any ameliorating effect of a jury admonition obviously to be considered in step two when reviewing the amount of the evidence of guilt to determine whether the prosecutor's statements prejudiced the jury and denied defendant a fair trial. In this determination, however, we must also review the other factors comprising step two because no single factor is individually controlling. While ill will and gross and flagrant conduct are valid factors for consideration, for analytical purposes we simply note that they do not appear in the shower comment.

Stating our ultimate conclusion another way, with these different verdicts demonstrating convictions, acquittals, or juror uncertainty on the six charges, we simply cannot conclude that the evidence against Simmons is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. Accordingly, we hold the prosecutor's discussion regarding the Stockholm Syndrome and comments about A.H.'s thoughts while showering combine to constitute reversible prosecutorial misconduct under both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18 (1967).

We have frequently seen the effect of split verdicts used in opposite ways by the prosecution and defense. We are always saying "It was a close decision. Any error could have affected the outcome." The prosecution is always saying "The jury really did its job, apparently without influence of the improper statements--otherwise, it would have convicted as charged." The KSC adopts the former analysis in this decision.