Prosecutorial comment requires new trial

Kimberly Streit Vogelsberg and Carol Longenecker Schmidt won in State v. McBride, No. 112,277 (Kan. December 1, 2017), obtaining a new trial in a Shawnee County kidnapping prosecution. After a mistrial, a jury convicted Mr. McBride of the lesser-included offense of kidnapping (original charge aggravated kidnapping). On appeal, Mr. McBride argued that the prosecutor erred by making comments during closing argument suggesting that the victim, who testified, deserved to have a presumption of credibility similar to the defendant's presumption of innocence. The COA held that this comment misstated the law, but found the error harmless.

The KSC first noted that the state did not cross-petition the COA's finding of prosecutorial error, so the only thing before it was the COA's determination that the error was harmless beyond a reasonable doubt. The KSC reviewed the facts of the case in detail and concluded the error was not harmless:

After careful review, although it is quantitatively obvious the State introduced more evidence at the second trial, none can be described as direct and overwhelming concerning the critical element for McBride's kidnapping charge: McBride's alleged use of force or threat when taking or confining C.C. in the house. In other words, at both trials C.C.'s uncorroborated testimony was the only evidence about this, so the jury's credibility determination about what she was saying was key—and that is what the prosecutor improperly tried to bolster by claiming C.C. deserved a credibility presumption akin to McBride's presumption of innocence.

We are also unpersuaded by the Court of Appeals' rationale that "there was no explanation for [C.C.'s] presence with McBride at the house other than, as [she] testified, she was forced into the residence." Having reviewed the record, it is equally plausible, for example, she remained there because she wanted or needed someone to give her a ride.

 As noted in [State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016)], "prejudice can exist even 'in a strong case.'" But this was not a strong case due to the lack of evidence corroborating C.C.'s testimony. And the prosecutor's "presumption" comment reasonably could have caused the jury to accept her testimony in the absence of anything else to support it. We are also unconvinced the jury would have understood the instructions, which emphasized the impact of the defendant's constitutional presumption of innocence, to preclude the evidentiary presumption for which the prosecutor advocated, i.e., "doesn't she deserve a certain presumption as well?" Finally, we note the jury in the first trial did not reach a unanimous verdict on any of the counts after hearing the same evidence as to force, threat, or deception, as the second jury. 

Because the state failed to meet its burden to show harmless error, the KSC reversed and remanded for a new trial.