Friday, April 19, 2013

"Patently egregious" comments in closing argument warrant new trial

Michelle Davis won in State v. Stimec, No. 103,329 (Kan. April 19, 2013), reversing two Wyandotte County convictions for aggravated indecent liberties with a child.   The court held the prosecutor's statements made during rebuttal closing argument of the jury trial "were so patently egregious and prejudicial as to deny Stimec a fair trial . . . ."

The KSC described the facts of the case as follows:
At trial, the State presented evidence that Stimec's 6-year-old son, J.S., spent every other weekend with Stimec, and when he returned home one weekend, J.S. told his mother he slept naked with Stimec and Stimec and J.S. put lotion on each other, including on each other's private parts.

J.S.'s mother and stepfather reported J.S.'s statements to the police. A forensic examiner interviewed J.S., and a tape of the interview was played at trial. During the interview, J.S. said Stimec frequently rubbed lotion all over J.S. and sometimes J.S. rubbed lotion all over Stimec. J.S. also reported that Stimec sometimes said, "[I]t feels good" and, "Oh yeah," as this conduct was occurring.

Stimec testified he put lotion on his son but never in inappropriate places.  Consistent with this testimony, in closing argument Stimec's counsel suggested "[m]ost people that have kids probably put lotion on them, sunscreen, after a bath, whatever, but for him to put lotion on his son's back after a bath isn't a crime."
The prosecutor made these comments during the State's rebuttal closing argument:
It is not illegal to put lotion on a child's back. It is not illegal to put it on their ankles, knees, shoulders, head, anywhere else. None of that is a crime, absolutely, but it is a crime to stroke your son's penis with lotion. I mean, let's just call it what it is, okay, that's a crime. You know what, feel free to take a poll in the jury room when you go to deliberate, take a poll. If there is one member of this panel who has stroked their son's penis with lotion, then by all means, find that way. I suspect that won't be the case.
The court held that the comments constituted plain error:
[T]he comments were highly improper for several reasons, including that they: (1) appealed to the passions and prejudices of the jury; (2) diverted the jury's attention from the facts of the case, explicitly inviting the jury to consider facts outside the record; (3) implicitly commented on Stimec's credibility; (4) misstated the evidence by suggesting Stimec "stroked" his son's penis when in fact, the victim's statements and testimony did not utilize this phrase; and (5) potentially exposed individual jurors to ridicule by their colleagues, decreasing the likelihood any juror would argue for acquittal. Under these circumstances, we have no hesitancy in concluding the prosecutor's statements were inappropriate and in error.
The court also addressed the argument of the State that these comments were provoked by defense counsel and should be excused.  The court explained (as it had it previous cases) that "defendants do not open the door to prosecutorial misconduct."  The KSC held that the "inappropriate comments in this case went directly to the heart of the issue the jury was asked to decide" and thus were not harmless. 

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