[Copyrighted Material Omitted]
Appeal from Wyandotte District Court; ROBERT P. BURNS, judge.
BY THE COURT
1. The phrase referring to arousing or satisfying the sexual desires of " either the child or the offender, or both" in K.S.A. 21-3504 defining aggravated indecent liberties with a child does not create an alternative means crime.
2. When jury unanimity is at issue, there are three sequential questions presented. The first is whether the appellate court is presented with a multiple acts case. This determination is a question of law over which an appellate court exercises unlimited review.
3. When there is a multiple acts case, the second question presented when jury unanimity is at issue is whether error was committed. In multiple acts cases, either the State must have informed the jury which act to rely upon in its deliberations or the court must have instructed the jury to agree on the specific criminal act. The failure to elect or instruct is error.
4. When the State has not informed the jury which act to rely upon in its deliberations and the trial court has failed to instruct the jury to agree on a specific criminal act in a multiple acts case, the third question is whether the error warrants reversal or was harmless. The test for harmlessness when a unanimity instruction was not requested or its absence not objected to is the clearly erroneous standard, as provided in K.S.A. 22-3414(3).
5. K.S.A. 22-3423(1)(c) permits a trial court to declare a mistrial because of prejudicial conduct, in or outside the courtroom, that makes it impossible to proceed with the trial without injustice to the defendant or the prosecution. Applying the statute, a trial court must engage in a two-step analysis. First, the trial court must decide if there is some fundamental failure of the proceeding. If so, in the second step, the trial court must assess whether it is possible to continue the trial without an injustice. This means the trial court must determine whether the damaging effect can be removed or mitigated by admonition or instruction to the jury. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial.
6. As a general rule, a district court's ruling on a motion for mistrial is reviewed for abuse of discretion. On appeal, the rubric to decide whether the trial court abused its discretion in deciding if there was a fundamental failure in the proceeding varies with the nature of the alleged misconduct, such as whether the allegation is based on the actions of a witness, the actions of a bystander, prosecutorial misconduct, or evidentiary error.
7. To determine if a nonconstitutional error makes it impossible to proceed with the trial without injustice and requires a mistrial, a court must assess whether the fundamental failure affected a party's substantial rights under K.S.A. 60-261 and K.S.A. 60-1205. But if the error implicates a constitutional right under the United States Constitution, the effect of that error must be assessed under the constitutional harmless standard in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967).
8. If the fundamental failure determined to exist in the consideration of a motion for mistrial infringes upon a right guaranteed by the United States Constitution, the trial court should apply the constitutional harmless error standard defined in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), in which the error may be declared harmless when the party benefitting from the error proves beyond a reasonable doubt that the error will not or did not affect the outcome of the trial in light of the entire record, i.e., when there is no reasonable possibility the error contributed to the verdict. An appellate court will use the same analysis to review the trial court's determination regarding constitutional harmless error.
9. Under Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the use of a defendant's silence at the time of arrest and after receiving the warnings required pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966), for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
10. Cumulative trial errors, when considered collectively, may be so great as to require a defendant's convictions to be reversed. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.
11. In a cumulative error analysis, if any of the errors being aggregated are constitutional in nature, the cumulative error must be harmless beyond a reasonable doubt.
12. In conducting a cumulative error analysis, an appellate court examines the error in the context of the record as a whole, considering how the district court dealt with the errors as they arose, including: (a) the efficacy, or lack of efficacy, of any remedial efforts; (b) the nature and number of errors committed; and (c) the strength of the evidence. No prejudicial error may be found if the evidence is overwhelming against the defendant.
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause and was on the brief for appellant.
Mollie R. Hill, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
[299 Kan. 13] OPINION
Jose Santos-Vega appeals his convictions for aggravated indecent liberties with a child and the corresponding hard 25 life sentences imposed under Jessica's Law, K.S.A. 21-4643. He raises six issues: (1) whether alternative means existed for his aggravated indecent liberties charges; (2) whether the district court erred in failing to give a unanimity jury instruction; (3) whether the district court erred in denying a mistrial after a law enforcement officer violated an order in limine by volunteering that Santos-Vega invoked his postarrest right to remain silent and describing the circumstances of that invocation; (4) whether cumulative error denied Santos-Vega a fair trial; (5) whether his hard 25 life sentences are disproportionate in violation of § 9 of the Kansas Constitution Bill of Rights; and (6) whether the lifetime postrelease [299 Kan. 14] supervision and electronic monitoring portions of his sentences are illegal.
We reverse Santos-Vega's convictions and remand his case to the district court for a new trial. We hold the cumulative impact of the failure to give a unanimity instruction in this multiple acts case and the detective's
violation of an order in limine, which implicated Santos-Vega's constitutional right to remain silent and violated his right to due process, substantially prejudiced his right to a fair trial. As the party benefitting from both trial errors, the State failed to prove beyond a reasonable doubt that these errors did not contribute to the guilty verdicts. We do not reach the sentencing issues.
Factual and Procedural Background
The State charged Santos-Vega with four sex offenses involving two children who occasionally stayed at the home where Santos-Vega was living during the summer of 2008. A jury acquitted him of two counts of rape of 15-year-old S.S., but convicted him of two counts of aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A) as to 11-year-old S.T. We focus on the allegations involving S.T. because of those convictions.
Santos-Vega lived with his girlfriend, Lat'isha Stone, in the Kansas City, Kansas, home of her mother and her mother's boyfriend, who was S.T.'s father. S.T. came to stay with her father for about a month around the Fourth of July in 2008.
On March 16, 2009, S.S. reported to police that Santos-Vega had raped her repeatedly during June 2008 while S.S. was staying at the home. During the course of investigating those claims, S.S. said S.T. had told her and the other occupants of the house that Santos-Vega was touching S.T. in an inappropriate manner. S.T. was referred to Sunflower House, a children's advocacy center in the Kansas City metropolitan area, where she was interviewed.
A video recording of S.T.'s Sunflower House interview was played for the jury. In it, S.T. said she stayed with her dad for about a month around July 4, 2008. She acknowledged she was at Sunflower House to talk about Santos-Vega touching her in the " ...