Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge.
SYLLABUS BY THE COURT 1. Review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude allowed the prosecutor in discussing the evidence. Second, if misconduct is found, an appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. 2. A prosecutor's improper comment or argument can be prejudicial, even if the misconduct was extemporaneous and made under the stress of rebutting argument made by defense counsel. 3. If a prosecutor commits misconduct, the State, as the party who benefited from the misconduct, is burdened with demonstrating beyond a reasonable doubt the error did not affect the defendant's substantial rights, i.e., that there is no reasonable possibility the error affected the verdict.
The opinion of the court was delivered by: Moritz, J.
The opinion of the court was delivered by
Jeffrey Stimec appeals his jury conviction of two counts of aggravated indecent liberties with a child, arguing the prosecutor committed misconduct during rebuttal closing argument by encouraging the jury to return to the jury room and take a poll to determine whether any of them had engaged in conduct similar to the allegations against Stimec. Stimec also asserts other allegations of prosecutorial misconduct and argues his sentence was illegally imposed under Jessica's Law, K.S.A. 2006 Supp. 21-4643.
Because we hold today that the prosecutor's statements during rebuttal constituted misconduct and deprived Stimec of a fair trial, we do not reach Stimec's remaining allegations of prosecutorial misconduct or his sentencing claims. Accordingly, we reverse his convictions and remand this case for a new trial.
Our review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, we decide whether the comments were outside the wide latitude allowed the prosecutor in discussing the evidence. Second, if misconduct is found, we must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011). In the second step of the two-step analysis, the appellate court considers 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." State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).
Further, we have held that none of these three factors is individually controlling and before the third factor can override the first two factors, we "'"must be able to say that the harmlessness tests of both K.S.A. 60-261 . . . and Chapman v. California,386 U.S. 18, [22,] 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) . . . , have been met." [Citation omitted.]' State v. McCaslin, 291 Kan. 697, 715-16, 245 P.3d 1030 (2011). The basic test asks whether the error affected the defendant's substantial rights, meaning whether the error affected the outcome of the trial." State v. Smith, 296 Kan. ___, 293 P.3d 669, 682 (2012).
Stimec challenges three statements made by the prosecutor during closing argument. Because we hold that the statements made during rebuttal, standing alone, were so prejudicial as to require reversal, we will not address the propriety of the remaining statements.
At trial, the State presented evidence that Stimec's 6-year-old son, J.S., spent every other weekend with Stimec, and when he returned home one weekend, J.S. told his mother he slept naked with Stimec and Stimec and J.S. put lotion on each other, including on each other's private parts.
J.S.'s mother and stepfather reported J.S.'s statements to the police. A forensic examiner interviewed J.S., and a tape of the interview was played at trial. During the interview, J.S. said Stimec frequently rubbed lotion all over J.S. and sometimes J.S. rubbed lotion all over Stimec. J.S. also reported that Stimec sometimes said, "[I]t feels good" and, "Oh yeah," as this conduct was occurring.
Stimec testified he put lotion on his son but never in inappropriate places. Consistent with this testimony, in closing argument Stimec's counsel suggested "[m]ost people that have kids probably put lotion on them, sunscreen, after a bath, whatever, but for him to put lotion on his son's back ...