Appeal from Sedgwick district court; REBECCA L. PILSHAW, judge.
1. A prosecutor is allowed wide latitude in discussing the evidence. If the prosecutor exceeds the permissible bounds of fair comment, an appellate court must determine whether the erroneous comments constitute plain error, guided by three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling, and the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705,
The opinion of the court was delivered by: Johnson, J.
Jeremy V. Nguyen appeals his convictions for first-degree felony murder and for criminal discharge of a firearm at an occupied vehicle. Nguyen raises seven issues, none of which compel us to reverse his convictions.
Bang Tran was driving a vehicle in the right lane of a multiple-lane thoroughfare when he suffered a fatal gunshot wound, apparently from a weapon discharged from within a vehicle traveling in the same direction in the left lane. The Tran vehicle contained four passengers, one of whom also sustained a gunshot wound, albeit nonfatal. The other vehicle was driven by Josh Gallatin and contained three passengers, one of whom was Nguyen, seated in the backseat on the passenger side of the car. Gallatin said that after he heard gunshots coming from the back right passenger side of his car, he observed from the corner of his eye that Nguyen's arm was moving out of the open window. Bobby Xayavong, Nguyen's friend, testified that, on the day of the shooting, Nguyen said that he fired the weapon at the vehicle but did not mean to do it. Some evidence suggested that gang membership may have played a role in the shooting.
After the incident, the group in Gallatin's car eventually arrived at Nguyen's house, where Nguyen went into the backyard, carrying a plastic bag which appeared to contain a solid metal object. Later, investigators found two rounds of ammunition in Nguyen's backyard, which an expert opined had been extracted from the same weapon as the four shell casings collected from the shooting scene and the expended round removed from the victim's body. However, the weapon was never recovered.
Nguyen was age 16 at the time, and the case was commenced as a juvenile offender action. The State moved to prosecute Nguyen as an adult. At the adult certification hearing, the State presented evidence to establish the requisite probable cause of a preliminary hearing.
Nguyen objected to the hearing because there was no indication that his mother had been served with notice or that she had appeared at any of the prior juvenile proceedings. The district court overruled the objection, noting that Nguyen's father was present in court on that day and had been present at the prior hearings in juvenile court.
After the witnesses were examined, Nguyen objected to combining the adult certification hearing and the preliminary hearing, claiming that the consolidation resulted in an unconstitutional shifting of the burden of proof. He argued that he had to choose between his interest in being cared for as a juvenile against his right against self-incrimination. The district court overruled the objection, sustained the State's motion to prosecute Nguyen as an adult, found probable cause to believe that Nguyen had committed the crimes of first-degree murder and criminal discharge of a firearm at an occupied vehicle, and conducted an arraignment on those charges.
Ultimately, a jury convicted Nguyen on both charges. He appeals, claiming: (1) the prosecutor committed misconduct; (2) the court erred in conducting a preliminary hearing in conjunction with the adult certification hearing; (3) the adult certification hearing was invalid because of a failure to notify Nguyen's mother; (4) the evidence was insufficient to support adult certification; (5) the criminal discharge conviction was multiplicitous with the felony-murder conviction; (6) the giving of an Allen-type instruction was erroneous; and (7) cumulative errors deprived Nguyen of his right to a fair trial.
Nguyen complains of four comments by the prosecutor: two in opening statement and two in closing arguments. Trial counsel only objected to one of the opening statement comments, but the evolution of prosecutorial misconduct jurisprudence has eliminated the need for a contemporaneous objection to preserve the issue for appeal. See, e.g., State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
Furthermore, that evolution has led to the application of the same standard of review, regardless of whether the defendant provided an opportunity for the trial court to remedy the misconduct by lodging an objection. Albright, 283 Kan. at 428. That review progresses in steps.
First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If not, the analysis ends. If so, the court must decide whether the erroneous comments constitute plain error. In doing so, the court is guided by three factors:
"(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967), have been met. [Citations omitted.]" 283 Kan. at 428.
Typically, our cases separately analyze each challenged comment, and we will not break new ground in that regard. However, intuitively, one cannot divorce a comment from its context. In analyzing the meaning or harmful effect of an isolated portion of a statement or argument, one must look to the entire soliloquy.
Nguyen first complains about the following portion of the State's opening statement.
"Ladies and gentlemen, when that bullet stopped, so, too, did the life of Bang Nhut Tran. 18 years old, forever 18, forever young, forever dead. But that bullet--[objection and objection overruled]."
Nguyen contends the rhetoric was inflammatory. Further, he argues that it is improper to make such arguments in an opening statement. With respect to the latter contention, we have observed:
"'Opening statements by counsel in criminal prosecutions are not evidence. They are given for the purposes of assisting the jury in understanding what each side expects its evidence at trial will establish and to advise the jury what questions will be presented for its decision. The tendency is to permit a prosecuting and defense attorney reasonable latitude in stating to the jury the facts they propose to prove.' [State v. McCorkendale, 267 Kan. 263, Syl. ¶ 4, 979 P.2d 1239 (1999).]" State v. Kleypas, 272 Kan. 894, 957, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), overruled on other grounds State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev'd Kansas v. Marsh, 548 U.S. ___, 165 L.Ed. 2d 429, 126 S.Ct. 2516 (2006).
The challenged comment was preceded by the prosecutor's description of the path the bullet traveled through Tran's body. While the statement may have been more dramatic than it needed to be, it nevertheless set forth facts which would come out during the trial. Tran was 18 years old; he was struck by the bullet discharged from the Gallatin vehicle; and he was killed by that bullet. Previously, we have refrained from putting too fine a point on the distinction between stating the facts and making a forbidden argument. See State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006) ("'[the victim] will forever be two years old and her last memory will forever be that of the Defendant violently shaking the life out of her'"). We continue that restraint and find that the prosecutor did not exceed the permissible latitude.
Nguyen's other opening statement challenge involved the following:
"When this case is over, the State will be asking that you bring back a verdict that the evidence in this case demands and that justice requires. That will be a verdict of guilty for the murder of Bang Nhut Tran."
Nguyen reads that comment as playing to the sympathy of the jury by asking for justice for the victim Tran, prior to the introduction of any evidence. We cannot accept Nguyen's characterization. To the contrary, the comment is textbook opening statement language. The prosecutor is absolutely permitted to ask for a verdict which is supported by the evidence. Moreover, a verdict supported by the evidence is the very essence of justice.
Nguyen cites to two sections of the prosecutor's closing argument as evidencing misconduct. In the first portion of closing, the prosecutor argued:
"Ladies and gentlemen, Wednesday, this coming Wednesday is July 4. It's Independence Day, and it's the day that our country celebrates the things that this country is founded upon, life, liberty and the pursuit of happiness and justice for all. And you may not know this, but the Declaration of Independence was actually signed on July 2. We celebrate July 4 because that's the day it was published, but--that's the day it was announced, but it was actually signed by the founding fathers on July 2. On January 27, 2001, Bang Nhut Tran had his life, his liberty, his pursuit of happiness taken away from him. All that he has left is justice.
"Now, on this day, July 22 (sic), 2001, 225 years to the date that our founding fathers set ink to paper declaring those rights, you can give Bang Nhut Tran justice. The evidence is there. Will you give Bang Nhut Tran justice? I ask that each and every one of you do so. I ...