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State v. Hirsh

Supreme Court of Kansas

August 2, 2019

State of Kansas, Appellee,
Darrin D. Hirsh, Appellant.


         1. 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 establish prejudice.

         2. 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 outcome.

         3. 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.

         4. The 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.

         5. 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.

         6. In 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.

         7. 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.

         8. The 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 multiplicitous.

         9. A 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.

         10. 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.

         11. Jury misconduct does not occur when venire members do not respond to questions never asked during voir dire.

         12. 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.

          Appeal from Barton District Court; Ron Svaty, judge.

          Samuel 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.

          Per Curiam

         The 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 occurred.

         Hirsh 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).

         We 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.

         We affirm the Court of Appeals panel's decision, although we reject a portion of its reasoning on the Brady issue.

         Factual and Procedural History

         Because 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 necessary.

         Hirsh 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.

         On the 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.

         On the 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 Hirsh's house.

         When 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."

         The 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 physical."

         Candice also went to see Stephanie and David that morning and again discussed what had happened the night before.

         For about a year after the attack, Candice did not report it to the police.

         Then, 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 her parents.

         Candice 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.

         After 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.

         In 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.

         Reed 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.

         At 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 heads nodding.
"[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 chosen?"

         C.C., 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.

         Candice 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.

         According 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.

         At 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.

         Candice 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 ...

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