BY THE COURT
There are three components or essential elements of a claim
under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
1197, 10 L.Ed.2d 215 (1963): (1) The evidence at issue must
be favorable to the accused, either because it is
exculpatory, or because it is impeaching; (2) that evidence
must have been suppressed by the State, either willfully or
inadvertently; and (3) the evidence must be material so as to
Under the test for materiality governing all categories of
Brady violations, evidence is material only if there
is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
touchstone of materiality is a "reasonable
probability" of a different result, and the adjective is
important. The question is not whether the defendant would
more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of
confidence. A "reasonable probability" of a
different result is accordingly shown when the
government's evidentiary suppression undermines
confidence in the outcome of the trial.
impeachment value of one word in a law enforcement
disciplinary report not disclosed to the defendant until
shortly before the close of his case was negligible and thus
not "material" under Brady.
Multiplicity may be considered for the first time on appeal
in order to serve the ends of justice or to prevent a denial
of fundamental rights.
analyzing a double jeopardy issue, the overarching inquiry is
whether the convictions are for the same offense. There are
two components to this inquiry, both of which must be met for
there to be a double jeopardy violation: (1) Do the
convictions arise from the same conduct? and (2) By statutory
definition are there two offenses or only one? Under the
first component, if the conduct is discrete, i.e., committed
separately and severally, the convictions do not arise from
the same offense and there is no double jeopardy violation.
If the charges arise from the same act or transaction, the
conduct is unitary and the second component must be analyzed
to see if the convictions arise from the same offense. Under
the second component, it must be determined whether the
convictions arise from a single statute or from multiple
statutes. If the double jeopardy issue arises from
convictions for multiple violations of a single statute, the
unit of prosecution test is applied.
Factors considered to determine whether convictions arise
from the same or "unitary" conduct, satisfying the
first component of the State v. Schoonover, 281 Kan.
453, 133 P.3d 48');">133 P.3d 48 (2006), rubric, are: (1) whether the acts
occur at or near the same time; (2) whether the acts occur at
the same location; (3) whether there is a causal relationship
between the acts, in particular whether there was an
intervening event; and (4) whether there is a fresh impulse
motivating some of the conduct.
two threats made by the defendant to the victim-the first
promising to kill her and the second promising to kill their
children, after the victim begged defendant not to let the
children see her-qualify as the same or unitary conduct but
constitute two units of prosecution under the criminal threat
statute. Two convictions based on the threats are not
prosecutor's statement to a jury that the victim told the
truth is error, but the prosecutor's single-sentence
error did not affect the outcome of the trial in light of the
whole record, which included ample impeachment evidence that
was finally rejected by the jury.
Allegations of juror misconduct trigger a progressive
two-step inquiry to determine if either a mistrial or new
trial is warranted: (1) whether juror misconduct occurred,
and (2) if so, whether the misconduct substantially
prejudiced the right to a fair trial, meaning whether the
State can show beyond a reasonable doubt that the misconduct
did not affect the trial's outcome.
Jury misconduct does not occur when venire members do not
respond to questions never asked during voir dire.
Immaterial assumed error under Brady and an
individually harmless prosecutorial error during closing
argument do not compel reversal under the cumulative error
doctrine in this case.
from Barton District Court; Ron Svaty, judge.
D. Schirer, of Kansas Appellate Defender Office, argued the
cause, and was on the briefs for appellant.
Natalie A. Chalmers, assistant solicitor general, argued the
cause, and Jodi Liftin, assistant solicitor general, was with
her on the briefs for appellee.
State of Kansas charged Darrin Duane Hirsh with three
felonies and five misdemeanors arising out of an incident in
which he made threats toward his wife, Candice Hirsh, and
their children. Candice did not report the incident
officially to law enforcement until about a year after it
was convicted of aggravated assault, two counts of criminal
threat, and domestic battery. He was acquitted of two counts
of witness intimidation and one count of violating a
protective order and another count of violating a protective
order was dismissed. The Court of Appeals affirmed his
criminal threat and domestic battery convictions and
sentences, reversed his aggravated assault conviction and
vacated the sentence for it, and remanded the case so that
the aggravated assault charge could be tried again. State
v. Hirsh, 54 Kan.App.2d 705, 405 P.3d 41 (2017).
granted Hirsh's petition for review advancing five
issues: (1) violation of his right to timely disclosure of
exculpatory evidence under Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), (2)
multiplicity of his two convictions for criminal threat, (3)
prosecutorial error, (4) erroneous refusal to recall the jury
to explore the possibility of misconduct during voir dire,
and (5) cumulative error. The State did not seek review of
the Court of Appeals' conviction reversal, sentence
vacation, and remand on the aggravated assault charge.
affirm the Court of Appeals panel's decision, although we
reject a portion of its reasoning on the Brady
and Procedural History
we identify more than one potential error in the prosecution
of Hirsh and must therefore examine individual harmlessness
and the cumulative error doctrine, a fairly comprehensive
recitation of the facts and procedural steps leading to the
outcomes in the district court and Court of Appeals is
and Candice married in the late 1990s and had three children.
By 2012 at the latest, the couple was at odds because Candice
suspected Hirsh had developed more than a friendship with
Ashley Martell. Martell was living in an apartment on the
Hirsh family's property, and the apartment doubled as a
workshop for Hirsh.
evening of March 12, 2013, Hirsh was in the workshop with
Martell and others. One of the couple's sons was upset
about something related to Martell, and Candice asked Hirsh
to come inside the house to speak with him about it. Hirsh
did so and returned to the workshop. Because the son was
still upset, Candice returned to the workshop and again asked
Hirsh to speak to the son. Hirsh did not return to the house
until about midnight, and Candice was angry. She confronted
Hirsh in the kitchen about his relationship with Martell,
and, according to Candice's testimony at trial, an
intense fight broke out. The evidence on exactly what
occurred during that fight varies in certain respects from
telling to telling and from time to time.
night the fight occurred, once it had ended, Candice called
her friend Stephanie Jacobs and Jacobs' husband, David.
David had previously worked with Hirsh as a trooper with the
Kansas Highway Patrol. Stephanie tried to persuade Candice to
call the police. When Candice refused, Stephanie called
Candice's father. Candice's father then went to the
Candice's father arrived, Candice would later testify,
instead of telling him that Hirsh attacked her physically,
Candice told him that she and Hirsh had merely had a
"verbal confrontation." She told her father that
the Jacobses misunderstood her earlier report to them,
because she was afraid that her "marriage would be
over" and that Hirsh "would get in trouble."
morning after the incident, Candice called her employment
supervisor, Talaya Schwartz, and told her that she "had
kicked [Hirsh] out." Candice also told Schwartz that she
was not coming into work and would take the rest of the week
off. However, Schwartz would later testify at trial that
Candice did come into work that morning and appeared
"obviously disheveled . . . like she hadn't slept at
all, and [she] stated that [she and Hirsh] were having some
issues and she didn't know what was going to
happen." At that time, Candice did not tell Schwartz
that Hirsh had physically attacked her, but she did say that
"things between her and [Hirsh] had gotten
also went to see Stephanie and David that morning and again
discussed what had happened the night before.
about a year after the attack, Candice did not report it to
on March 10, 2014, prompted by a meeting with Schwartz about
Candice's slipping work performance during the previous
year, Candice finally told Schwartz that Hirsh had physically
attacked her. Schwartz eventually would testify that she
responded by telling Candice to leave her husband and call
the police, but Candice "did not want any of that."
Schwartz was more successful in persuading Candice to tell
had a severe panic attack on the way to her parents'
house, and Candice's mother drove her to the hospital.
Schwartz met Candice's parents at the hospital and told
them everything Candice had told her.
leaving the hospital, Stephanie and Schwartz drove Candice to
a crisis center, where she met Detective Sharon Wondra of the
Barton County Sheriff's Department. Candice then told
Wondra about Hirsh's actions on March 12, 2013, including
that Hirsh had threatened her and their children and had put
a gun to her head. By Candice's own later admission, she
intermittently denied that these events happened multiple
times throughout the investigation.
reaction to her new knowledge of the attack, Schwartz called
a relative of hers, Barton County Sheriff's Deputy Kyle
Reed. She told Reed about the attack, and Reed decided that
he would take Schwartz to speak with David. The three
discussed what Hirsh had done a year earlier; Schwartz
insisted that the incident needed to be reported. David then
called Lieutenant Steven Billinger, who worked for the Kansas
Highway Patrol at that time, and let Schwartz speak with him.
would later be disciplined by Undersheriff Bruce Green for
misconduct because he acted outside the chain of command by
taking Schwartz to speak with David. Green's report on
the disciplinary action stated in relevant part: "Deputy
Reed said that Schwartz reported that she was told by Candice
that [Hirsh] had placed a pillow over her head and
threate[ned] to shoot her with a firearm in the
basement of their residence." (Emphasis added.)
The Kansas Bureau of Investigation (KBI) initiated an
investigation into the attack when the Barton County
Sheriff's Office sought its assistance. Green did not
tell the KBI or the prosecutor about the existence of his
report or its content.
trial, during voir dire, after being asked what the phrase
"domestic violence" meant to her, a potential juror
volunteered information that her daughter had been the victim
of domestic violence. In addition, among other things,
potential jurors were asked:
"[PROSECUTOR]: Okay. Anyone else? When I say the words
'domestic violence,' does that mean anything in
particular to you? Okay. As with everything, the law has
defined it, so I'm going to read that to you. The
State-the law defines domestic violence as an act or
threatened act of violence against a person with [a]
qualifying relationship, meaning they have some kind of a
relationship that makes it domestic. Does anyone disagree
with this definition? I see no response. If the court
instructs you that this is domestic violence, an act or
threatened act of violence, does anyone feel like they cannot
follow the instructions? Okay. I see no response. Does anyone
here believe that domestic violence happens? Okay. I see some
"[PROSECUTOR]: . . . Before I sit down, as we have gone
through the question[s] over the last hour and a half or so,
is there anything that kind of struck you that I need to tell
her this? Because this is the last chance I have to talk to
you about whether you're a fair or impartial juror.
Anybody thinking back saying, you know what, I should
probably say something about this? Okay. I see no response.
"[DEFENSE COUNSEL]: . . . [S]ome of these allegations
are domestic violence allegations. Anybody feel, by virtue of
their experiences, their past, or you know, past experience
of a loved one that they can't sit fairly and impartially
on this jury? Everybody feels that they can put aside-I mean,
the government, the State, Ms. Domme asked the questions
earlier. . . . Does everybody feel that they can put aside
and sit fairly and impartially on this jury if they're
L.S., and D.H., who were eventually selected to serve on
Hirsh's jury, did not respond to these remarks and
questions from counsel or to other references to domestic
violence during other parts of the voir dire. None of them
told the attorneys for the parties during voir dire that they
had experienced domestic violence.
testified at trial that, on the night of the attack, she had
told Hirsh to "get his stuff and get his girlfriend and
get out of [the] house and never come back." This
"enraged" Hirsh and he became violent.
to Candice, Hirsh pushed her; "dragged her by [her] hair
through the dining room"; and threw her into the living
room, where she landed on the carpet, causing rug burns on
her arms. The attack then moved to a hallway, where Hirsh
pinned her against a wall and began choking her. Before the
choking caused Candice to pass out, Hirsh let her go. Candice
then went into one of their boys' bedrooms, where she sat
on the edge of the bed and kept her cellphone close, in case
she needed to call the police. Hirsh soon came into the
bedroom. Candice told the jury that he appeared calm, was
looking at her but not saying anything, and had something
behind his back. He then pinned her to the bed, straddling
her, and laid a gun next to her head. Next he placed a pillow
over her face and tried to suffocate her.
first, Candice testified, she thought this behavior was a
joke; she believed Hirsh was simply trying to get her
attention and make his point that she should leave him alone.
But she came to realize that she "was going to
die." Hirsh said, "[I]t will all be over
soon," and Candice said, "[D]on't let the boys
see me like this." Hirsh responded by saying,
"[T]hey will be going too." During this exchange,
Candice told the jury, Hirsh had put the barrel of the gun to
her head. He then got up suddenly and walked out of the
bedroom. Candice, shocked, initially remained on the bed and
then left the room to check on the children.
also testified that she had denied her allegations against
Hirsh after she first told the police about them because
Hirsh specifically told her to "recant." She
understood this to mean "[t]ake back what you had said .
. . that I didn't mean it or take back what I had said
about the gun incident." Candice also admitted that she
had told Hirsh's Highway Patrol superiors, that is,
Hirsh's captain and Billinger, that she and Hirsh merely
had a verbal confrontation; she said she had done so at
Hirsh's request. Candice also testified that she told
investigators from the KBI that the incident never happened
and that she had made it up because she was taking Ativan.
Candice also had sent letters to Hirsh in the days after the
attack to attempt a reconciliation with him. In the letters,
Candice "den[ied] the gun incident." But Candice