of the judgment of the Court of Appeals in an unpublished
opinion filed January 15, 2016.Appeal from Shawnee District
Court; Richard D. Anderson, judge. Opinion filed December 1,
2017.Judgment of the Court of Appeals affirming the district
court is reversed on the issue subject to review. Judgment of
the district court is reversed, and case is remanded.
Longenecker Schmidt, of Kansas Appellate Defender Office,
argued the cause, and Kimberly Streit Vogelsberg, of the same
office, was on the brief for appellant.
E. Litfin, deputy district attorney, argued the cause, and
Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, were with her on the brief for appellee.
reviewing a Court of Appeals decision, if the Supreme Court
does not limit the questions on review, those questions will
include all those properly before the Court of Appeals that
the petition for review or cross-petition allege were decided
erroneously. If the State does not cross-petition for review
of a Court of Appeals holding that prosecutorial error
occurred in a criminal case, the Supreme Court will not
consider whether that holding was erroneous when reviewing
Appellate courts employ a two-step analysis to evaluate
claims of reversible prosecutorial error. These two steps are
simply described as error and prejudice.
determine whether prosecutorial error occurred, an appellate
court must decide whether the prosecutorial acts complained
of fall outside the wide latitude afforded to prosecutors to
conduct the State's case and attempt to obtain a
conviction in a manner that does not offend the
defendant's constitutional right to a fair trial. If
error is found, the appellate court next must determine if
the error prejudiced the defendant's due process rights
to a fair trial.
evaluating the prejudice step in the two-step analysis for
reversible prosecutorial error, an appellate court will
exclusively apply the traditional constitutional harmlessness
inquiry from Chapman v. California, 386 U.S. 18, 87
S.Ct. 824, 17 L.Ed.2d 705 (1967). Under that inquiry,
prosecutorial error was harmless if the State proves beyond a
reasonable doubt the error did not affect the trial's
outcome in light of the entire record, i.e., when there is no
reasonable possibility the error contributed to the verdict.
Bisa McBride appeals his kidnapping conviction, claiming the
prosecutor violated his rights to a fair trial by making
improper remarks to the jury during closing arguments. A
Court of Appeals panel agreed prosecutorial error occurred
when the prosecutor asserted the alleged victim deserved
consideration similar to the presumption of innocence
constitutionally recognized for criminal defendants, but
determined this error was harmless and affirmed the
conviction. See State v. McBride, No. 112, 277, 2016
WL 199062 (Kan. App. 2016) (unpublished opinion). On review,
we disagree with the harmlessness determination and reverse
the kidnapping conviction. We remand the case to the district
court for further proceedings.
and Procedural Background
State charged McBride with one count of rape, one count of
aggravated kidnapping, and two counts of criminal sodomy.
These charges stemmed from a November 7, 2011, incident with
a woman, C.C., with whom McBride had an intermittent romantic
relationship dating back to early 2010. C.C. reported McBride
raped and sodomized her at his mother's house, where he
lived. McBride stood trial on these charges twice.
first trial occurred in August 2013. The jury could not reach
a unanimous decision on any counts, so the district court
declared a mistrial. At the second trial in November 2013, a
jury convicted McBride only on a lesser included charge of
kidnapping under K.S.A. 2016 Supp. 21-5408(a)(3). The court
sentenced him to 216 months in prison, followed by 36 months
of postrelease supervision.
appeal, McBride made two arguments. First, he asserted the
prosecutor violated his rights to a fair trial during closing
arguments by: (1) improperly commenting on C.C.'s
credibility; (2) implying McBride had a burden of proof to
attack the State's story and present a defense; (3)
misstating the case's facts; and (4) disparaging defense
counsel. Second, he contended the trial court violated his
Sixth and Fourteenth Amendment rights under Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000), by relying on his criminal history at sentencing
without asking a jury to find it beyond a reasonable doubt.
of Appeals panel affirmed the conviction and sentence.
McBride, 2016 WL 199062, at *1. It agreed the
prosecutor improperly commented on C.C.'s credibility
when he referred to C.C. and then asked the jury,
"'[D]oesn't she deserve a certain presumption as
well?'" 2016 WL 199062, at *2. But the panel
concluded this error was not gross and flagrant, not
motivated by the prosecutor's ill will, and harmless
because there was overwhelming evidence against McBride. 2016
WL 199062, at *7-8. The panel determined the remaining
prosecutorial statements in dispute were within the wide
latitude afforded prosecutors in criminal cases and not
error. 2016 WL 199062, at *3-7.
panel also rejected the Apprendi claim, relying on
State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002) (use
of prior convictions to determine sentence does not trigger
Apprendi protections). McBride, 2016 WL
199062, at *9.
petitioned this court for review only on the prosecutorial
error issue, which we granted. Jurisdiction is proper. K.S.A.
20-3018(b) (petition for review of Court of Appeals
decision); K.S.A. 60-2101(b) (providing Supreme Court
jurisdiction over cases subject to review under K.S.A.
State did not cross-petition for review of the panel's
determination that the prosecutor misstated the law about
C.C.'s deserving consideration similar to the
defendant's presumption of innocence, so that much is
settled in McBride's favor. See State v. Rosa,
304 Kan. 429, 437, 371 P.3d 915 (2016) (only issue on review
is whether error was harmless when State did not
cross-petition from prosecutorial error determination by
Court of Appeals); see, e.g., State v. Keenan, 304
Kan. 986, 992-93, 377 P.3d 439 (2016) (State cannot challenge
a preservation issue on review because it did not
cross-petition for review of that determination by Court of
Appeals); State v. Corey, 304 Kan. 721, 741-42, 374
P.3d 654 (2016) (Supreme Court did not question panel's
determination about defendant's absence during a critical
stage of trial, noting State did not cross-petition for
review on that question); State v. Williams, 303
Kan. 750, 754, 368 P.3d 1065 (2016) (State did not
cross-petition for review on Court of Appeals determination
that there was insufficient evidence to establish the crime
of criminal threat, so that finding was not before Supreme
Court on review); State v. Allen, 293 Kan. 793, Syl.
¶ 2, 268 P.3d 1198 (2012) ("Under Supreme Court
Rule 8.03[g], a party must allege that an issue was
decided erroneously by the Court of Appeals in order for the
issue to be properly before the Supreme Court on petition for
review."). At oral argument, the State agreed the single
issue on review was whether the prosecutorial error was
we hold that the established prosecutorial error is
reversible standing alone, we make no rulings as to the
remaining prosecutorial error claims. Additional facts ...