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State v. McBride

Supreme Court of Kansas

December 1, 2017

State of Kansas, Appellee,
v.
Osi Bisa McBride, Appellant.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed January 15, 2016.Appeal from Shawnee District Court; Richard D. Anderson, judge.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.

          Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit Vogelsberg, of the same office, was on the brief for appellant.

          Jodi 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.

         SYLLABUS

         1. When 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 the appeal.

         2. Appellate courts employ a two-step analysis to evaluate claims of reversible prosecutorial error. These two steps are simply described as error and prejudice.

         3. To 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.

         4. In 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.

          Biles, J.

         Osi 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.

         Factual and Procedural Background

         The 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.

         The 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.

         On 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.

         A Court 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.

         The 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.

         McBride 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. 20-3018).

         The 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][1], 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 harmless.

         Because we hold that the established prosecutorial error is reversible standing alone, we make no rulings as to the remaining prosecutorial error claims. Additional facts ...


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