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 Sept. 21, 2012)(unpublished), obtaining a new trial in a Graham County aggravated assualt prosecution.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.]