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Appeal from Montgomery District Court; GARY R. HOUSE, judge.
BY THE COURT
1. Appellate review of prosecutorial misconduct allegations involves a two-step process. First, we must decide whether the comments were outside the wide latitude a prosecutor is allowed in discussing the evidence. If so, there was misconduct. Second, if misconduct is found, we must determine whether the improper comments prejudiced the jury and denied the defendant a fair trial.
2. There are several factors to consider in analyzing the second step, namely whether the misconduct (1) was gross and flagrant; (2) was motivated by prosecutorial ill will; or (3) would have likely had little weight in the minds of the jurors because the evidence was of such a direct and overwhelming nature. None of these three factors is individually controlling.
3. Additionally, any prosecutorial misconduct must meet the dual standard of both constitutional harmlessness and statutory harmlessness to uphold the conviction.
4. K.S.A. 60-421 provides that no evidence of a defendant's prior crimes " shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility."
5. In this case, the statements complained of by defense counsel were questions made by a prior defense counsel at the preliminary hearing. There was no valid reason to refer to the previous questions.
6. Courts caution prosecutors against characterizing testimony as a lie because such categorical and conclusory opinions make the prosecutor an unsworn witness and invade the province of the jury to determine credibility. In this case, a number of the prosecutor's comments were well outside the wide latitude granted the prosecutor in arguing the case to the jury and were obviously intentional and prejudicial.
7. In this case, the prosecutor's comment that he found defense counsel's questioning of whether the victim would lie about $14 to be insulting was an improper personal comment on the prosecutor's part.
8. A prosecutor should not make statements intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law.
9. In this case, the prosecutor's comments were outside the wide latitude granted the prosecutor in arguing the case when he referenced the pain caused to the victim by having to testify in the preliminary hearing.
10. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.
11. The presence of a person in a structure at any time during a burglary constitutes aggravated burglary.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
David Maslen, assistant county attorney, Larry Markle, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER, J., and BUKATY, S.J.
[50 Kan.App.2d 83] PIERRON, J.
James Clinton Ramey appeals his convictions by a jury for aggravated burglary, misdemeanor theft, and vehicle burglary. Before trial, he pled guilty to criminal damage to property, possession of methamphetamine, and possession of drug paraphernalia [50 Kan.App.2d 84] involving the same incident. Ramey's main issue on appeal is a plethora of allegations of prosecutorial misconduct. He also argues the trial court erred in its response to a jury question and failed to make the proper analysis for assessing Board of Indigents' Defense Services (BIDS) attorney fees. Additionally, Ramey claims the journal entry states the incorrect amount of attorney fees awarded by the trial court, that he was entitled to a lesser included offense instruction on simple burglary, his prior convictions were not proven to a jury, and cumulative error denied him a fair trial. We find there was cumulative error which requires a reversal and remand for new trial.
Beverly Zimmerman is over 80 years old. She was asleep in her home on the night in question and awoke to a big crash. When she came out of her bedroom, she saw the silhouette of a man followed by a dog in her house. After turning on the kitchen light, Zimmerman saw Ramey and told him he was in the wrong house. Zimmerman testified Ramey said, " [N]o, I'm cold. The rest of them will be here pretty soon." Zimmerman testified she knew she needed to get out of the house. She tried to call the police on her cordless phone, but it did not work. She walked out onto the porch to see if it would work, but it would not. Zimmerman took the phone back inside, hung it up, and then walked to a neighbor's house to call the police. She said Ramey never threatened her and just repeated that he was cold. Zimmerman had $14 in her wallet that was missing after the incident. She testified she had not left her car door open that night and usually kept her driver's license and bank cards in her purse.
Officer Jason Reddy of the Independence Police Department responded to Zimmerman's home-invasion call. Officer Reddy approached Zimmerman's house, and through the front window he saw Ramey going through the kitchen cabinets. As Officer Reddy opened the front door, it squeaked and through the window he could see Ramey run the opposite direction down a hallway. Officer Reddy chased Ramey and at gunpoint ordered him to show his hands. Ramey immediately complied, and Officer Reddy ordered [50 Kan.App.2d 85] Ramey to get on the floor. Ramey called his dog off. Officer Reddy took Ramey into custody without incident.
During a search incident to the arrest, officers discovered a small bag of methamphetamine in Ramey's wallet. During the search, Ramey also asked for a drug test. Officer Reddy noticed the front door frame was broken and there was a ball cap on the front walkway just before the stairs. Officer Reddy believed Ramey was under the influence of methamphetamine based on his observations of Ramey's racing pulse rate and profuse sweating. Officer Reddy testified that despite the drugs, Ramey knew what was going on and had no problem understanding his Miranda rights. Ramey took a drug test at the station, and the results indicated he had methamphetamine, amphetamines, and marijuana in his blood.
Officer Reddy testified that in his investigation, he discovered Ramey had a suspended driver's license. He found it odd that
Ramey had a suspended driver's license yet was found in possession of keys to a newer model vehicle. When officers later spoke with Zimmerman, she said she was missing keys. The keys found on Ramey were to the car in her garage.
On cross-examination at trial, defense counsel questioned Officer Reddy on the unusual aspects of the incident as indicators of the lack of intent to commit a burglary, namely the lights were on in the house, Ramey had a dog with him, he had no weapons, he complied with the officer's requests, Ramey left his hat and shirt in the front yard, he asked for a drug test, and Zimmerman was not threatened or harmed in any way when confronted by Ramey.
Officer Jason Simmons testified to his assistance in getting Zimmerman back to her house. He said the charger/base for Zimmerman's cordless phone was not plugged in. When he placed the cord back into the base, the phone had worked properly. Zimmerman told Officer Simmons that her phone worked fine before she went to sleep that night. Officer Simmons said Zimmerman had called the police department and advised dispatch she was missing some money. When Officer Simmons spoke with Zimmerman the next morning, she said she was missing $20 and then later said it was probably $17 or $18.
[50 Kan.App.2d 86] Officer Jon Schenk followed up with Zimmerman the next morning as to several missing items. When he helped Zimmerman search her house, they found Zimmerman's driver's license, bank cards, pictures, and other cards on the floor and steps leading into the attached garage. At this point, Officer Schenk noticed that the driver's side door to Zimmerman's car was open. Zimmerman said she did not put her cards on the floor or leave the car door open. Officer Schenk also found a pocket knife on the front porch of the residence, along with a shirt in the front yard. Neither of those items were Zimmerman's. On rebuttal, Officer Schenk testified he went back to Zimmerman's house during the trial and took pictures looking from the kitchen down the hallway and to the garage. Those photographs showed there is no window in the door from the garage to the hallway and how difficult, if not impossible, it is to see the garage door from the kitchen area.
Ramey took the stand in his own defense. He admitted to being a drug addict. He was drinking beer and Crown Royal on the day in question. He said he also had taken some pills for pain, but he did not know what they were. Ramey had his dog with him during the incident. When Ramey passed Zimmerman's home, he began having problems breathing and his chest was constricting. He pulled off his shirt, and his hat fell off his head. He walked up to Zimmerman's front door and knocked to try and get someone to answer. He said his life began flashing before his eyes. When no one answered the door, he turned the knob and pushed really hard. He heard a loud popping sound as he pushed through the door.
Ramey testified he knew he should not have been in the house, but he was afraid for his life and just wanted to use a phone to call for help. When Ramey came into contact with Zimmerman, he said he held his hands up, backed away, and tried to look like he posed no threat to her. He asked Zimmerman for help, but she picked up the phone and went outside. Ramey said he told Zimmerman to call for an ambulance. Ramey said he still felt cold, but he needed something to drink. As he was looking around the kitchen, Ramey said he saw a car in the garage and decided he could not wait for the ambulance. He grabbed Zimmerman's wallet and car keys and took them to the front door looking for Zimmerman. [50 Kan.App.2d 87] When he could not find her, he headed to the garage because he needed to go to the hospital. The step down into the garage caught Ramey by surprise, and he dropped Zimmerman's wallet causing the contents to spill onto the floor.
In the garage, Ramey opened the car door and then decided it was wrong to take someone else's car. Feeling thirsty again, Ramey went back into the kitchen and started looking through the kitchen cabinets. Ramey testified he heard a noise coming from the back room and his first thought was it was a person who could help him get to the hospital. When he checked the back room, no one
was there, and the next thing he heard was Officer Reddy telling him to put his hands in the air. Ramey testified he put Zimmerman's car keys in his pocket and came out of the room with his hands in the air. Ramey testified he asked for a drug test to find out what pills had caused his condition.
Ramey claimed he had no intent to steal anything in the house. He said he grabbed Zimmerman's wallet and keys to take them to her so she could drive him to get help. He denied taking any money out of Zimmerman's wallet.
In front of the jury, Ramey discussed the drug and criminal damage to property charges he had pled guilty to before the start of the trial. The State had charged Ramey with aggravated burglary, misdemeanor theft, misdemeanor criminal damage to property, felony possession of methamphetamine, possession of drug paraphernalia, and vehicle burglary. On the day of trial, Ramey pled guilty to the charges of criminal damage to property, possession of methamphetamine, and possession of drug paraphernalia. The jury convicted Ramey on the remaining charges. The trial court sentenced Ramey to a presumptive term of 130 months' incarceration on the aggravated burglary conviction and then concurrent terms on the remaining convictions.
Ramey first argues multiple instances of prosecutorial misconduct denied him a fair trial. We agree.
[50 Kan.App.2d 88] The State has made sure we understand that because Ramey pled guilty at trial to a number of counts, any resolution on this case does not affect Ramey's convictions for drug possession, possession of drug paraphernalia, and criminal damage.
Appellate review of prosecutorial misconduct allegations involves a two-step process. First, we must decide whether the comments were outside the wide latitude a prosecutor is allowed in discussing the evidence. If so, there was misconduct. Second, if misconduct is found, we must determine whether the improper comments prejudiced the jury and denied the defendant a fair trial. See State v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 (2012).
There are several factors to consider in analyzing this second step, namely whether the misconduct (1) was gross and flagrant; (2) was motivated by prosecutorial ill will; or (3) would have likely had little weight in the minds of the jurors because the evidence was of such a direct and overwhelming nature. None of these three factors is individually controlling. 294 Kan. at 857. Additionally, any prosecutorial misconduct must meet the " dual standard" of both constitutional harmlessness and statutory harmlessness to uphold the conviction. See State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004) (stating that before the third factor can ever override the first two factors, appellate court must be able to say harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 , have been met).
During cross-examination, the prosecutor asked Ramey, " Why don't you tell the jury what convictions you have that involve theft or dishonesty." Defense counsel objected and requested a mistrial, claiming Ramey had not opened the door to that evidence. The prosecutor disagreed. The trial judge held, " As far as the objection to the question, I will sustain that. As to a mistrial, there's been no criminal history that's been introduced into evidence and that's denied." On appeal, Ramey claims there was no evidence in his direct testimony that even remotely attempted to bolster his own credibility. Ramey argues the prosecutor did not point to evidence [50 Kan.App.2d 89] that showed Ramey had opened the door. The court never asked the prosecutor to provide justification.
The prosecutor's comments were erroneous and outside of the wide latitude allowed the prosecutor. K.S.A. 60-421 provides that no evidence of a defendant's prior crimes " shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his
or her credibility." On appeal, the State cites no examples in Ramey's testimony where he opened the door to evidence of his prior crimes.
Of course, the preferred practice is for the prosecutor to first raise the issue of K.S.A. 60-421 evidence to the trial judge, outside the presence of the jury, to avoid possible prejudice to the defendant in the event the trial court refuses to allow the prior crimes evidence.
Next, Ramey objected to the following questioning of Zimmerman by the prosecutor:
" Q. . . . I found the section, Ms. Zimmerman, about the previous testimony, when Mr. Ramey's attorney asked you questions. Okay. Do you recall him asking you: And you indicated ...