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.

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