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.]