District court improperly prohibited theory of defense

Matthew J. Edge won in State v. King, No. 99,478 (Kan. March 9, 2012), obtaining a new trial in a Wyandotte County drug prosecution. The defense proffered evidence from three witnesses that would have revealed prior police harassment. The KSC held that the evidence was relevant and noncumulative and therefore should have been admitted. Further it held that improper exclusion was not harmless beyond a reasonable doubt:

The evidence in this case comes purely from witness testimony. Stanturf and another officer testified that the cocaine came from King's pants pocket. King and Hudnall testified that Stanturf planted the cocaine found in this case. No physical evidence linked the bag of cocaine to King and there was no video of the arrest or subsequent search. Stanturf testified that he had no strong personal feelings against King, other than some frustration from the incident on June 2, 2005, when King fled the scene. King testified that Stanturf harassed him, pulled him over frequently, and had told King of his personal dislike of King. Stanturf testified that he knew of no ongoing vendetta between King and the officers of the south patrol division. But King was not allowed to present evidence of the south patrol division's alleged hostile attitude toward him. . . . . The prosecutor's closing argument highlights the fact that King was allowed to present the "what" of his defense―i.e., the drugs had been planted, but he was not allowed to present the "why" of his defense―i.e., the bias of Officer Stanturf and the south patrol division. Although King was allowed to present his defense that the drugs were planted through his own testimony and that of one other witness, the trial court denied King the opportunity to present relevant, admissible, and noncumulative evidence that was integral to his defense. Evidence that Stanturf continued to harass King after the arrest supports King's theory that Stanturf had a grudge against him that caused the officer to plant drugs to frame him for this crime. Evidence that officers in the south patrol division made disparaging comments about King to his family and perjured themselves to obtain a conviction further supports King's theory of defense. As Judge Leben pointed out in his dissent, it may well be that a jury would give little weight to the proffered testimony, but it is not our job on appeal to determine its believability. The evidence offered was relevant, material, and not subject to any sustainable hearsay objections. . . . The exclusion of this evidence prevented King from presenting a complete defense. There is a reasonable possibility that the exclusion of this evidence contributed to the verdict. Because this evidence was integral to King's defense theory, we are not persuaded beyond a reasonable doubt that the error did not impact the outcome of the trial, so we must reverse his convictions and remand for a new trial.

There is some good language in this case teaching that just because some evidence may open the door to other damaging evidence, it does not make improper exclusion harmless. It is for the defendant and his or her counsel to decide those risks, not an appellate court.