Too much to ask the jury to not smell the skunk

Rick Kittel won in State v. Phillips, No. 118, 314 (Kan. App. April 12, 2019)(unpublished) reversing Ellis County convictions for criminal possession of a firearm, possession of drug paraphernalia, and possession of marijuana.

Police executed a search warrant on a house looking for drugs and drug paraphernalia. They believed that one of the two bedrooms in the house belonged to Mr. Phillips because a few items related to him (an ID card from another state, a job application, and mail) were found in the bedroom. Police found marijuana and paraphernalia in the home and found a handgun and ammunition in the bedroom they associated with Mr. Phillips. He could not legally possess a firearm because he was on probation for a felony conviction.

Prior to trial, Mr. Phillips asked that the state not be allowed to mention to the jury that he was a convicted felon and in return he would stipulate that he could not legally be in possession of a firearm. The district court concluded that it would inform the jury that Mr. Phillips was a convicted felon, but would not reveal the specifics of that prior conviction. The pretrial order of the district court read: “Defendant stipulated Defendant could not possess a firearm. State will not introduce evidence of Defendant’s prior conviction unless defendant ‘opens the door’”.

This planned course of action almost immediately went awry at jury trial when, in its introductory instructions, the district court informed the jury “the defendant within ten years preceding such possession [of a firearm] has been convicted of unlawful possession of controlled substance[.]” Mr. Phillips objected to this effective violation of the pretrial order and requested a mistrial. The district court denied the request for mistrial and tried to remedy the situation by ordering the jury to disregard the previously given instruction. The district court then gave another instruction to the jury, omitting the language that referred to Mr. Phillips’ prior conviction of possession of a controlled substance. The jury later convicted on all three counts.

On appeal, the COA undertook a two-part analysis: (1) determine if there was a fundamental failure in the proceedings, and (2) determine if it was possible to continue the trial without injustice. The COA first found that “by informing the jury that Phillips had a prior conviction for marijuana possession the district court defeated the purpose of the stipulation.” Even though this was a mistake on the part of the district court, it created an undue risk of prejudice that caused a fundamental failure in the proceedings. On the second part of the two-part analysis the COA stated:

[Phillips] argues that the degree of prejudice was too great to be cured. He notes that “[c]olorful analogies” are used to describe this problem. “[O]ne ‘cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’.” We agree.

Considering the particular facts of the case, the COA determined that the degree of prejudice presented by the district court’s error was exceptionally high. As a result, the convictions were reversed and the case remanded for a new trial.

[Update: the state did not file a PR and the mandate was issued on June 13, 2019].