Appeal from Anderson District Court; JAMES J. SMITH, judge.
1. A two-step analysis governs allegations of prosecutorial misconduct: it applies regardless of whether the alleged misconduct occurs during witness examination or during closing argument, and it applies regardless of whether a contemporaneous objection was made. The first step asks whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence. The second step asks whether the remarks constituted plain error, that is, whether the statements prejudiced the defendant and denied him or her a fair trial. The second step requires three factors to be considered: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence is so direct and overwhelming 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 statutory and federal harmless error tests have been met.
2. Under the facts of this case, it was unreasonable for the State to assume that a sexual desire for children is among those desires which define a homosexual orientation. It is no more reasonable to assume that a preference for same gender adult sexual partners establishes a proclivity for sexual gratification with same gender children than it is to assume that preference for opposite gender adult sexual partners establishes a proclivity for sexual gratification with opposite gender children.
3. Under the facts of this case, evidence of the defendant's homosexuality was not evidence of the charges against him. Given the prejudicial nature of homosexuality, the prosecutor's arguments, questions, and presentation of evidence alleging defendant's homosexuality were analogous to prosecutorial appeals to passion, prejudice, and fear. The conduct in the present case was, therefore, improper and outside the considerable latitude given a prosecutor in proving the State's case.
4. Under the facts of this case, considering the extent to which the State pursued the collateral matter of defendant's alleged homosexuality, together with the prejudicial nature of homosexuality, the prosecutor's conduct was gross and flagrant.
5. Although the record does not show the prosecutor bore ill will in the present case, ill will may be found if evidence and arguments concerning homosexuality are used with the sole purpose of prejudicing a jury.
6. Under the facts of this case, the conclusion that prosecutorial misconduct was not harmless is strengthened by the cumulative effect of trial errors.
7. Testimony by a licensed school psychologist that the complaining witness' family fit the profile of families in which a child is abused was not lay opinion under K.S.A. 60-456(a).
8. The facts upon which an expert relies for his or her opinion must afford a reasonably accurate basis for the expert's conclusion, as distinguished from mere guess or conjecture.
9. A witness may not express an opinion on the credibility of another witness.
10. A trial court has broad discretion regarding the admission of photographs. To determine whether photographs should be admitted, a trial court must decide whether they are relevant and whether a proper foundation has been laid.
The opinion of the court was delivered by: Buser, J.
Reversed and remanded with directions.
Before MARQUARDT, P.J., BUSER, J., and LARSON, S.J.
William Blomquist appeals his convictions of 26 counts of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(3)(A), 26 counts of aggravated criminal sodomy, K.S.A. 21-3506(a)(1), and 26 counts of aggravated indecent solicitation of a child, K.S.A. 21-3511(a). We reverse the convictions and remand for a new trial.
Factual and Procedural Background
At the time of these incidents, B.D. was a 12-year-old boy whose IQ placed him in the middle range of mental retardation. This disability also affected B.D.'s communication, social, and behavioral skills.
During the fall and winter of 2004, B.D. frequently stayed overnight at the Anderson County residence of Sharon Blomquist and her 31-year-old unemployed son, William. William had befriended B.D. and his mother, Carla. According to Carla, B.D. enjoyed spending time with William because there were many child-friendly activities at his home, including working on cars, model building, and movies.
Eventually, Carla began to wonder if something was amiss. She sat down with B.D. and asked him if anyone had ever touched him or if anything had ever happened between him and William. B.D. became upset, and after initially denying any such touching, confided to his mother that he and William had engaged in lewd fondling and oral and anal sodomy.
William was ultimately charged with one count each of aggravated indecent liberties with a child, aggravated criminal sodomy, and aggravated indecent solicitation of a child, on 26 dates from September 18, 2004, to December 29, 2004, for a total of 78 counts. At the preliminary hearing, the prosecutor explained the charging document as follows:
"[N]ow through investigation of journals kept by [Sharon], . . . [B.D.], as a child . . . was sort of vague on dates and he could tell us what happened, but exact times and number were somewhat vague. So using the journals, we were able to come up with the specific dates that [B.D.] stayed [at the Blomquist residence]."
The trial began on August 29, 2005. Beginning with his opening statement to the jury, continuing through the presentation of evidence, and culminating in the closing arguments, the prosecutor framed the State's case around the allegation that William was a homosexual.
From the third sentence of his opening statement, the prosecutor said:
"The defendant, William . . . was a . . . homosexual who had spent a great deal of time and energy both hiding his sexuality and winning the trust of [B.D.'s] mother Carla.
"By September 17th of 2004 [William's] groundwork had been laid and the seduction of [B.D.] begun [sic]. . . .
"What Carla did not know was that [William] had broken up with his boyfriend, Brandon . . . , in June. On Tuesday, June 8th, as shown in [Sharon's] journals, 2:14 in the morning. [William] woke Sharon . . . and told her that he and Brandon had had sexual relations and that Brandon had slept with someone else the Saturday before. But in the journals you can see that Sharon saw this coming because she had been recording it in her journals for months.
"In fact, [the] journals show that [William] and Brandon had been sleeping together in [William's] room in her house as early as December 21st of 2003. On January 6th, 2004, Sharon noted a hickey on his neck and [William] told her it was from Brandon pinching him. Later that same month she noted that Brandon hit [William] in the eye with his elbow while sleeping and [William] used makeup to cover the discoloration.
"By May 29th [William] and Brandon's relationship was crumbling and [William] was crying because he had called Brandon for the second time and Brandon did not want to come down and see him. By June 7th, Sharon could not believe that [William] would return . . . Brandon's calls and states, 'At least he didn't hang up crying.'
"That same evening, Chris Kresyman . . . was there with his kids. And in her journals Sharon noted that after the kids left [William] was more jovial. And then began [William's] efforts to work his way into [B.D.'s] life.
"By September Carla's trust was secured and [William] began the seduction."
The prosecutor pointed out that "unlike the other men in her life previously," William had not "attempt[ed] to get into Carla's bed."
Defense counsel made no objections to the prosecutor's statements. In his opening statement, William's counsel only countered that "[m]y ...