Sunday, September 30, 2012

Improper evidence putting puzzle pieces together not harmless

Michelle Davis won in State v. Belone, No. 99,176 (Kan. Sept. 21, 2012), obtaining a new trial in a Douglas County second-degree murder prosecution.  The COA had already held that the district court violated the Confrontation Clause by admission of out-of-court testimonial statements, but it also held that the error was harmless.

The KSC applied its recent clarifying decisions regarding harmless error and reversed:
The Court of Appeals was influenced by "the sheer volume of witnesses testifying about the attack and kidnapping." But none of the witnesses, other than Belone and Begay, had first-hand knowledge of the entire incident. Playing an audio recording of Begay relating her version of the entire event is certainly more compelling evidence than presenting pieces of the puzzle from a number of different witnesses. 
Here, the State has simply failed to carry its burden of showing that there is no reasonable possibility that the violation of Belone's confrontation rights contributed to the verdict. Without that degree of certainty, we cannot declare the error to be harmless. We must reverse and remand for a new trial.

This is a nice example of the importance of harmless error analysis.

Here is coverage of the case in the Lawrence Journal-World.

Friday, September 28, 2012

Cumulative error requires new trial

Washburn student intern Jessica L. Dotter and I won in State v. Derringer, No. 106,119 (Kan. App. Sept. 21, 2012)(unpublished), obtaining a new trial in a Graham County aggravated assualt prosecution.  The COA held that, despite the complaining witnesses' trial testimony that they were not in apprehension of harm, the circumstances were sufficient for such a finding, and therefore rejected Mr. Derringer's sufficiency claim.  But the COA went on to find that several trial errors, including a verdict form that required acquittal of a greater before consideration of a lesser, the prosecutor improperly stating the law, and an improper reasonable doubt instruction, required a new trial:
Here, our confidence in the jury's verdict has been undermined by the totality of the circumstances. First, we must recognize at the outset that the State has escaped the sufficiency challenge by our rather narrow and technical reliance on the officer's testimony despite clear and unequivocal denials of apprehension by both victims at trial. This dearth of evidence, coupled with errors in the instructions, verdict forms, and a serious misstatement of the law by the prosecutor causes us to conclude that Derringer was substantially prejudiced and denied a fair trial. For these reasons, we must reverse his convictions and remand for a new trial.
[Update: the state filed a PR on October 18, 2012.  Mr. Derringer filed a cross-PR on October 31, 2012.]

[Further update: the KSC denied both the PR and cross-PR on August 29, 2013 and the mandate issued shortly thereafter.]

Friday, September 14, 2012

Mistatement of law means new trial

Rachel L. Pickering won in State v. Redeker, No. 106,250 (Kan. App. Sept. 7, 2012)(unpublished), obtaining a new trial in a Lyon County possession with intent prosecution.  The COA rejected a sufficiency claim regarding the aggravated possession conviction, but went on to hold that improper prosectuorial argument required a new trial:
In rebuttal, the prosecutor guided the jurors through each of the definitions of “distribute” found in the jury instruction. The prosecutor then isolated that portion of the instruction that defined “distribute” to include “any act that causes some item to be transferred from one person to another.” Noting that this definition did not state “to the next person,” the prosecutor argued:
“So, even if you don't believe the story that he told the officers that [he] intended to take it to somebody else in Council Grove, do we still have distribute? Well, by the defendant's own testimony, he purchased methamphetamine from this guy he knows as Mike from Wichita. When he purchases methamphetamine, what happens? He's involved in an act that transfers that methamphetamine from one person to another.”
The COA agreed that this was a mistatement of law--distribution requires transfer from the suspect to another person, not transfer from a distributor to the suspect.  Otherwise, there would be no person guilty of simple possession (because it's always tranferred from someone else).

The COA went on to consider whether to reverse.  Even though the COA held that the improper remark was not gross and flagrant and did not evince ill will, it's effect was such that a new trial was required:
The sole contested factual issue in this case was whether Redeker possessed methamphetamine with the intent to distribute it. Redeker admitted that he possessed methamphetamine and agreed that he should be convicted of its possession. The prosecutor told the jury that even if it believed the defendant—that the drugs were for his own personal use and that he lied about his intention to distribute them to someone else—distribution as defined in the instruction was complete when Redeker received the drugs from Mike. When defense counsel objected to the prosecutor's comments as a misstatement of the law, the court overruled the objection, thus bolstering this misstatement. The prosecutor again emphasized his belief that this interpretation was supported by the instruction. Granted, the trial court instructed the jury that none of the court's rulings were intended to indicate to the jury what its verdict should be, but overruling that objection would certainly tend to suggest to the jury that it could rightfully consider the prosecutor's argument that misstated the law.
We agree with Redeker that this misstatement of the law by the prosecutor in his closing argument may have been the small degree of influence necessary to affect the verdict. Given that the jury was repeatedly told that its primary task was to determine Redeker's intent in light of his admitted possession of the methamphetamine, we cannot conclude beyond a reasonable doubt that the jury would have disregarded the prosecutor's argument on what acts it could consider constituting an act to distribute the methamphetamine.
[Update: the state did not file a PR and the mandate issued on October 11, 2012.]