Violation of in limine order and failure to instruct on unanimity requires a new trial

Michael J. Bartee won in State v. Santos-Vega, No. 104,485 (Kan. March 21, 2014), obtaining a new trial in a Wyandotte County aggravated indecent liberties with a child prosecution.  The state agreed that it had presented evidence of multiple acts, but failed to make sure that the jury was instructed on the requirement of unanimity.  The KSC pondered whether the error was clear in this case, but did not have to decide the issue because it also held that a detective violated a motion in limine implicating Mr. Santos-Vega's right to remain silent and that the errors were cumulatively harmful:

During cross-examination, the following took place:

Q. Okay. And this affidavit, Detective Hudson, was prepared with what information that you had in your possession at the time? 

A. I had the information based on the statements, based on the allegations made by the—by [S.T.] and [S.S.], and which time it was forwarded. Your client refused to give me a statement, so I didn’t have his version of the events. He was given an opportunity to, he asked for an attorney and so he invoked his rights, so I did not get his version of the events. He was explained his charges, what was going on. He got this look in his eye and he sunk his head down like—and he said I want an attorney.

The KSC had little trouble holding that the district court should have granted a mistrial as a result of this violation of an in limine order:

At least implicitly, the district court's inactions suggest it found the detective's answer was responsive to defense counsel's question, but that was obviously wrong. The detective was asked only what information he had to prepare the affidavit. He answered instead by explaining what information he did not have and then embellishing on that nonresponsive reply by explaining why he did not have more information, i.e., Santos-Vega "invoked his rights" by refusing to give a statement and asking for an attorney. Even more egregiously, the detective colorfully described how Santos-Vega "got this look in his eye and he sunk his head down . . . and . . . said I want an attorney." None of this was called for by the simple question from counsel about what information the detective had in his possession in preparing the affidavit.

The KSC held that the unanimity error and the Fifth Amendment violation combined to require a new trial.