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State v. Marshall

Court of Appeals of Kansas

September 5, 2014


Page 867

Appeal from Johnson District Court; JOHN P. BENNETT, judge.




Appellate review of an allegation of prosecutorial misconduct involving improper closing arguments requires a two-step analysis. First, an appellate court must determine whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the 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.


A prosecutor may not state a personal opinion regarding the ultimate guilt or innocence of a defendant. A prosecutor may state that the defendant committed the crime when such a statement is accompanied by language directing the jury to consider the evidence supporting the State's charge, thus rendering the prosecutor's statement merely directional and not an expression of the prosecutor's personal opinion.


A prosecutor may not impeach a defendant's credibility at trial by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent. A prosecutor may, however, impeach a defendant's credibility at trial by introducing evidence of the defendant's prior statements made prearrest, or made postarrest to fellow jailhouse inmates, when those statements are inconsistent with the defendant's trial testimony.


In closing arguments a prosecutor must confine his or her comments to matters in evidence. It is improper for a prosecutor to speculate as to the internal thought processes of witnesses. However, prosecutors are given wide latitude to craft arguments that include inferences that can reasonably be drawn from the evidence.


The requirement that facts increasing the maximum penalty for a crime be charged in an indictment only applies in federal cases, as the Fifth Amendment's grand jury provision does not apply to the states through the Fourteenth Amendment.


The notice requirement for state criminal cases is found in the Sixth Amendment to the United States Constitution. The Sixth Amendment requires that the defendant be given notice of the accusations against him or her and an opportunity to respond to them. Such notice must be sufficient to make the opportunity useful.


K.S.A. 2013 Supp. 21-6817(b)(1) requires the State to provide notice that it intends to seek an upward sentencing departure and to provide information to the court regarding the alleged fact or factors that may increase the penalty no less than 30 days prior to trial, or 7 days from the arraignment if the trial is to take place in less than 30 days. These notice provisions are sufficient to satisfy the requirements of the Sixth Amendment.


A defendant's criminal history need not be proven beyond a reasonable doubt to a jury.

Samuel Schirer, of Kansas Appellate Defender Office, of Topeka, for appellant.

Steven J. Obermeier, deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., STEGALL, J., and BUKATY, SJ.


Page 868

Stegall, J.:

Jamie Marshall was convicted of raping A.M., a developmentally disabled adult under his care. The State alleged and the jury found a fiduciary relationship between Marshall and A.M. and, as such, Marshall received an enhanced sentence. This is Marshall's direct appeal claiming: (1) the State committed reversible misconduct during closing arguments; (2) he was denied his due process rights under the Fifth and Sixth Amendments because the State did not allege the aggravating factor of a fiduciary relationship in the criminal complaint; and (3) an Apprendi violation. Because we find that no reversible error occurred below, we affirm.


A.M. is a developmentally disabled adult with moderate mental retardation. Because of her disabilities, A.M. is not able to live independently. In February 2012, she was living in Caring Hands, a facility that provides care and supervision in a residential setting. On January 28, 2012, A.M. developed a skin rash on her upper inner thigh as a result of an antibiotic she had been taking. A yellow tinted medical cream was being used by Caring Hands to treat the rash. By February 28, 2012, the rash had cleared.

Jamie Marshall was one of the Caring Hands employees charged with A.M.'s care during this time. His job duties entailed transporting the residents to day activities and supervising them in the evening hours, occasionally staying overnight. On the afternoon of February 28, 2012, Marshall arrived to work at the Caring Hands residence where A.M. and two other Caring Hands residents lived. Also staffing the residence that afternoon was Caring Hands employee Emma White. About 5:30 p.m., White left Marshall alone with A.M. and the other two residents in order to attend a work training event.

During the morning hours of February 28, Marshall had been engaged in a drawn out argument with his girlfriend, Lindsey Misner, with whom he had a child. Marshall and Misner lived together in an apartment near A.M.'s Caring Hands residence. After White left the Caring Hands residence, Marshall loaded all three of the Caring Hands residents into the Caring Hands van and drove

Page 869

to his apartment to continue his domestic dispute with Misner. Marshall and the residents returned to the Caring Hands residence at about 6 p.m. that evening.

Marshall and the State presented very different versions of what happened next. According to Marshall, after bringing A.M. and the other residents back to the Caring Hands facility, he stepped outside to call Misner. When he went back inside he found A.M. sitting on the corner of her bed with her pants pulled down below her waist. When Marshall told her to pull her pants up, A.M. responded, " It hurts," and pointed to her genitals. Marshall testified that he was aware of A.M.'s rash and assumed that the rash was causing A.M. discomfort. Marshall then called White and asked when she planned to be back at the Caring Hands residence. According to Marshall, he discussed applying medication to A.M.'s rash; however, White testified that the only subject of the call was how much longer she was going to be away from the residence. Marshall testified that after the call with White he went to the ...

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