[Copyrighted Material Omitted]
Review of the judgment of the Court of Appeals in State v. Crawford, 46 Kan.App.2d 401, 262 P.3d 1070 (2011) . Appeal from Barton District Court; RON L. SVATY, judge.
1. A claim of prosecutorial misconduct based on comments made during voir dire or closing arguments, neither of which is evidence, will be reviewed on appeal even absent a contemporaneous objection.
2. Under State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004), appellate review of allegations of prosecutorial misconduct requires a two-step process. First, an appellate court determines whether there was misconduct, i.e., whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, if misconduct is found, the appellate court determines whether those comments compel reversal, i.e., whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.
3. In analyzing whether a defendant was denied a fair trial because of prosecutorial misconduct, an appellate court considers three factors: (1) whether the misconduct was gross and flagrant, (2) whether it was motivated by prosecutorial ill will, 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. No one factor is controlling.
4. The factor of whether the misconduct likely had little weight in the minds of the jurors encompasses a dual standard for determining harmlessness: the standards of K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 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). Under both standards, the test is whether the misconduct affected the outcome of the trial, but the levels of certainty required for this determination varies. Under the statutory standard of K.S.A. 60-261, an appellate court declares reversible error if there is a reasonable probability the error affected the outcome of the trial in light of the entire record. A federal constitutional error can be declared harmless under Chapman only if there is no reasonable possibility that the error contributed to the verdict.
5. A prosecutor's statement during voir dire that he or she will probably talk to the jurors after the trial in order to learn the jurors' views on what they liked or disliked and on their suggestions for the prosecutor's improvement is not misconduct.
6. In arguing to a jury, a prosecutor is not limited to discussing direct evidence. Rather, a prosecutor is allowed considerable latitude in discussing the evidence and drawing reasonable inferences from that evidence.
7. The prosecutor's misstatement of the law regarding the State's burden to prove the elements of charged crimes beyond a reasonable doubt, which occurred through the use of a jigsaw puzzle analogy, was gross and flagrant misconduct because it was contrary to the consistent warnings in Kansas precedent against such explanations, was planned and calculated, was repeated, and had the effect of minimizing the State's burden of proof.
8. Under the facts of this case, there is no indication that the prosecutor's misconduct was motivated by ill will.
9. Under the facts of this case, the State met its burden of establishing beyond a reasonable doubt that the misconduct did not affect the outcome of the trial, i.e., there is no reasonable possibility that the misconduct contributed to the jury's verdict.
Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, argued the cause and was on the briefs for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.
MORITZ, J., not participating. LUCKERT, J., concurring. BILES, J., and GERALD T. ELLIOTT, District Judge, assigned , join in the foregoing concurring opinion.
[300 Kan. 741] OPINION
On petition for review from State v. Crawford, 46 Kan.App.2d 401, 262 P.3d 1070 (2011), Kenneth Crawford takes issue with the Court of Appeals' rejection of two of his contentions of prosecutorial misconduct and with the standard used by the [300 Kan. 742] Court of Appeals when determining if a third instance, which it found to be misconduct, denied him a fair trial.
A multi-prong test applies to the determination of whether a defendant's convictions should be reversed because of prosecutorial misconduct, one portion of which requires a court to determine whether the misconduct
likely had little weight in the minds of the jurors. See State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). Crawford argues this traditional test is flawed because it leaves open the possibility the misconduct affected the verdict.
After examining Tosh and subsequent caselaw, we conclude Crawford's criticism is unwarranted. We also conclude the Court of Appeals reached the correct conclusions in this case: There is no merit to two of Crawford's misconduct claims, and the prosecutor's misconduct in using a jigsaw puzzle analogy did not deprive Crawford of a fair trial. Therefore, we affirm the Court of Appeals and district court.
Facts And Procedural Background
Nina Dozier and her husband were driving on a country road when they saw 12-year-old S.V. They stopped, offered S.V. assistance, and drove her to her mother's workplace. S.V.'s mother called 911 after S.V. reported she had been sexually assaulted by Crawford.
At trial, S.V. testified that Crawford had come to her house to see S.V.'s mother. When S.V. told Crawford her mother was not home, he persuaded S.V. to take a ride in his truck. He drove around for a while and then stopped in a rural area near the location where the Doziers found S.V. Crawford asked S.V. to show him her breasts. When she refused, he replied, " What do you think we came down here for?"
S.V. tried to get out of the truck and run away, but Crawford grabbed her and pulled her onto the ground. He straddled her, put his hand over her breast, and " smeared" his face over hers. S.V. continually demanded that Crawford stop. She struggled with him, scratching him on his face and pinching his arm. During the struggle, S.V.'s lip became bloodied. Crawford told S.V. to shut up or he would kill her. After a period of time, estimated by S.V. to [300 Kan. 743] be about 5 minutes, she escaped and made her way to the place where the Doziers found her.
Forensic tests determined that S.V. had Crawford's DNA under her fingernails, and law enforcement officers observed that Crawford had a scratch on his face and small injuries under his arm. Crawford explained that he had injured himself while shaving or working under his truck.
When interviewed by law enforcement officers, S.V. described a location in " the country" where Crawford had taken her, indicating she saw trees, grass, a shack, and a metal cross. S.V. directed them to a location, where a detective observed a small metal cross and something that looked like an oil spot in the wheat stubble between some tire tracks. Upon examining Crawford's truck, law enforcement officers observed wheat grain and wheat stubble on the wheel rims and undercarriage and an oil leak under the front end. They did not test the spot in the stubble to verify if it was oil or if it matched fluids from Crawford's truck.
Crawford, when interviewed by law enforcement officers, denied any wrongdoing or having S.V. inside his truck, and her fingerprints were not found in the truck. He also presented alibi evidence establishing he was at a garage with his mechanic at the time S.V. indicated he had come to her house and picked her up. Nevertheless, Crawford admitted he had stopped by S.V.'s house that evening to visit S.V.'s uncle, and he confirmed that he had driven around that evening and had turned around in a wheat stubble field.
Crawford was convicted by a jury of aggravated kidnapping, aggravated indecent liberties with a child under the age of 14, and criminal threat. The district court imposed consecutive sentences, resulting in a controlling prison term of 337 months.
On direct appeal to the Court of Appeals, Crawford argued there were four trial errors and two sentencing errors: (1) His statutory right to a speedy trial was violated; (2) the prosecutor committed three separate acts of prosecutorial misconduct; (3) the district court committed judicial misconduct; (4) he was denied a fair trial based on cumulative error; (5) the district court improperly aggregated three misdemeanors into one prior person felony when calculating [300 Kan. 744] his criminal history score; and (6) the district court violated his constitutional rights when it relied on his prior convictions to increase his sentence.
The Court of Appeals affirmed Crawford's convictions and sentences. Crawford, 46 Kan.App.2d 401, 262 P.3d 1070.
Crawford petitioned this court for review, which this court granted in part by accepting review of only the second issue--the three prosecutorial misconduct claims. K.S.A. 22-3602(e) (party may petition the Supreme Court for review as provided in K.S.A. 20-3018[b]); K.S.A. 20-3018(b) (party aggrieved by a decision of the Court of Appeals may petition the Supreme Court for review); Supreme Court Rule 8.03(e) (2013 Kan. Ct. R. Annot. 74) (discretion in granting review); Supreme Court Rule 8.03(g)(1) (order granting review may limit the issues on review).
Specifically, Crawford argues the prosecutor committed misconduct by (A) improperly intimidating or influencing the jury during voir dire, (B) arguing facts not in evidence during closing arguments, and (C) misstating the law regarding the State's burden of proof by using a jigsaw puzzle analogy during voir dire and closing arguments. He contends his convictions must be reversed because this misconduct denied him a fair trial.
Prosecutorial Misconduct Standards of Review
We begin with a discussion of the standards that govern our review of Crawford's prosecutorial misconduct claims. Preliminarily, we note that a claim of prosecutorial misconduct based on comments made during voir dire or closing arguments, neither of which is evidence, will be reviewed on appeal even absent a contemporaneous objection. See State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014); State v. Dull, 298 Kan. 832, 836, 317 P.3d 104 ...