Opinion
No. 109,099.
2014-10-24
Ramona I. MORGAN, Appellant/Cross-appellee, v. STATE of Kansas, Appellee/Cross-appellant.
Appeal from Douglas District Court; Paula B. Martin, Judge.Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Paula B. Martin, Judge.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Six years ago, a jury convicted Ramona I. Morgan of two counts of reckless second-degree murder and one count of aggravated battery after a trial in Douglas County District Court. The case was as factually bizarre as it was tragic for the victims and their families. Morgan now contends the lawyers representing her in that trial and on direct appeal failed to satisfy the constitutional standards for adequate representation of criminal defendants, rendering her convictions fundamentally unfair. The district court rejected Morgan's contention after holding an evidentiary hearing. In reviewing the points Morgan has raised in her appeal of that ruling, we find no basis for granting her any relief and, therefore, affirm.
Factual Background and Procedural History
In September 2007, Morgan drove her pickup truck at a high rate of speed through a construction zone on U.S. 59 Highway where a crew was resurfacing the road, striking and killing two workers and injuring a third worker. Morgan's adult daughter Sabrina was a passenger in the truck. Morgan claimed she and Sabrina were being pursued by a band of thugs apparently intent on harming them because of a failed real estate deal in rural Missouri.
Beset with financial problems, Morgan sold her home, including a small farm, in Washington and had put down earnest money to purchase a tract of land near Eldridge, Missouri, after reviewing information about the property on the Internet. Morgan and her daughter drove from Washington to Eldridge to personally inspect the land. At the criminal trial, Morgan told the jury she determined the property was not as represented and wholly unacceptable. According to Morgan, she sought to cancel the sale. Morgan told the jury not long after that, she and her daughter encountered four or five motor vehicles parked on the roadside. The occupants were talking on cell phones and pointing toward Morgan. The motor vehicles then began to chase Morgan and tried to force her truck off the road. Morgan said an occupant of one of the vehicles fired a handgun at the truck. Morgan, however, was able to elude the gang.
Morgan and Sabrina checked into a motel in Gardner, Kansas, at about 5 a.m. but left abruptly just 2 hours later fearful that the marauders had followed them. Unfamiliar with the area, they eventually wound up on Highway 59 headed toward the construction area. The highway had three traffic lanes but only one was open because of the repaving. One lane was being resurfaced, while some equipment and the workers occupied a second lane. Flaggers stopped traffic, and a pilot car guided vehicles through the remaining lane. Members of the work crew testified at trial that Morgan drove the truck toward them, ignoring the flagger and the pilot car. One of the workers threw a cup of coffee at the windshield to get Morgan's attention. The truck passed through the construction zone without mishap, much to the workers' relief.
But about a half-hour later, the truck returned, again coming toward the workers at an excessive speed. The nearest flagger struck the truck's windshield with her pole in an effort to get the driver to slow down. According to the workers' testimony, the truck then sped up and moved into the area being repaved. The truck hit two workers who died from their injuries. A third worker suffered a leg injury. The truck never slowed or stopped. The workers immediately called for help.
Shortly afterward, Kansas Highway Patrol Trooper Todd Brooks began pursuing Morgan's pickup truck. Even after the trooper engaged the lights and siren on his patrol car, Morgan refused to stop. She stopped only after the truck had run over devices law enforcement officers had placed in the roadway to damage the tires. Forensic examiners recovered blood and other material from the front of the truck that by DNA comparison came from the dead workers. A computer recorder from the pickup truck indicated the vehicle was going 51 miles per hour when it struck the workers.
Morgan testified at trial and recounted the problems with the land purchase and the gang's attack on her and Sabrina. Morgan testified that she drove through the construction zone only once. She told the jurors she was fearful for her own safety and that of her daughter. According to Morgan's account given at trial, she saw barricades, some vehicles parked on or near the road, and a flagger with a pole. She said she slowed down and the woman with the pole “started beating my truck continuously.” Then a man threw what looked like a gas can at the truck. Morgan told the jurors she “associated” those actions with the people who had been chasing her, so she just wanted to get out of there because they were trying to kill her. The windshield on the truck fractured. Morgan said she struck something she believed to be the barricades as she sped away. Morgan adamantly denied seeing other people or striking anyone with her truck.
Sometime later, Morgan saw a car close behind her. Sabrina said it looked like a police car. But Morgan testified she was scared and didn't stop. Morgan told the jurors the car had no light bar on top, like police cruisers do. Trooper Brooks was pursing the pickup truck in his assigned duty vehicle-a sedan-with the emergency lights and siren engaged. The pursuit covered 25 miles at various speeds that reached 95 miles an hour. During the pursuit, Sabrina placed a cell phone call to 911 to try to confirm that a bona fide law enforcement officer was behind them. Morgan told the jurors she stopped the pickup truck when she approached a roadblock and could readily identify a police officer there. By that time, Morgan had driven over stop sticks law enforcement officers had placed on the road causing the front tires on the pickup truck to go flat.
During the prosecution's case, Sabrina testified briefly under subpoena and acknowledged being an unwilling witness. In very general terms, Sabrina confirmed the outline of the events Morgan would recount in her testimony. Although Sabrina's demeanor in testifying is difficult to assess from the transcript, comments in the record from both the prosecutor and Morgan's trial lawyer suggest they considered Sabrina to be a weak, unpersuasive witness.
There was no evidence presented to the jurors at trial confirming the testimony of Morgan and Sabrina about the Missouri gang or its collective behavior.
The Douglas County district attorney charged Morgan with two counts of reckless second-degree murder in the deaths, then violations of K.S.A. 21–3402, and one count of reckless aggravated battery for the injured worker, then a violation of K.S.A. 21–3414. The jury convicted Morgan of those charges. The district court sentenced her to a controlling term of 315 months in prison. Morgan filed a direct appeal of her convictions. This court affirmed in all respects. State v. Morgan, No. 101,769, 2010 WL 2245604, (Kan.App.) (unpublished opinion), rev. denied 290 Kan. 1101 (2010).
Morgan then filed a motion, as provided in K.S.A. 60–1507, challenging the convictions on the grounds that the lawyers representing her at trial and on direct appeal did not satisfy the standards for constitutionally adequate representation, thereby violating the right to counsel guaranteed in the Sixth Amendment to the United States Constitution. In August 2012, the district court held an evidentiary hearing on the motion and issued a lengthy written decision rejecting each of the numerous claims Morgan raised. Morgan has timely appealed the denial of her 60–1507 motion, and that is what we have in front of us. On appeal, Morgan has narrowed her focus to three specific points. After outlining the legal principles governing review of 60–1507 motions, we take up those points, supplementing the factual and procedural history as necessary.
The State has filed what it characterizes as a cross-appeal in which it suggests the district court's rationale or reasoning was unsound in several respects. Not surprisingly, however, the State doesn't quarrel with the result. The State categorically prevailed on Morgan's 60–1507 motion—the district court rejected each and every point she asserted. Appellate courts review adverse judgments. A party prevailing in the district court typically cannot appeal some aspect of how a favorable ruling or judgment was reached. See ASARCO, Inc. v. Secretary of Labor, 206 F.3d 720, 722 (6th Cir.2000) (“It is a well settled principle that a prevailing party cannot appeal an unfavorable aspect of a decision in its favor.”); Abbs v. Sullivan, 963 F.2d 918, 924 (7th Cir.1992) (“[A] winner cannot appeal a judgment merely because there are passages in the court's decision that displease him.... [Citations omitted.] He can appeal only if the judgment gives him less relief than he considers himself entitled to.”); Watson v. City of Newark, 746 F.2d 1008, 1010–11 (3d Cir.1984), We, therefore, dismiss the State's cross-appeal. We do, however, consider the arguments and authorities made in the ostensible cross-appeal in determining whether Morgan has asserted any reversible error.
Analysis
Legal Principles
When reviewing the denial of a 60–1507 motion after a full evidentiary hearing, an appellate court accepts the district court's findings of fact to the extent they are supported with substantial competent evidence. The appellate court exercises unlimited review of the determinative legal issues. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007).
To demonstrate constitutionally ineffective assistance of either the lawyer handling her case in the district court or the lawyer briefing the direct appeal, Morgan must show the representation fell below an objective standard of reasonableness resulting in legal prejudice, meaning there probably would have been a different outcome had the representation been adequate. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and stating Strickland test for ineffective assistance); see also Haddock v. State, 282 Kan. 475, 512–13, 146 P.3d 187 (2006) (stating Strickland test and Chamberlain standard of review). As both the United States Supreme Court and the Kansas Supreme Court have noted, review of the representation should be deferential and hindsight criticism tempered lest the evaluation of a lawyer's performance be unduly colored by lack of success notwithstanding demonstrable competence. See Strickland, 466 U.S. at 689–90; Holmes v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should counsel's representation be considered substandard when he or she investigates the client's circumstances and then makes a deliberate strategic choice among multiple options. Strickland, 466 U.S. at 690–91. The Strickland test guides review of both trial and appellate advocates' handling of criminal cases. See Miller v. State, 298 Kan. 921, 929–30, 318 P.3d 155 (2014) (applying Strickland test to performance of lawyer handling direct appeal).
In general, the courts look at a lawyer's overall performance in representing a criminal defendant in determining whether the Sixth Amendment right to counsel has been satisfied, meaning that a minor mistake or even a number of minor mistakes do not breach that duty. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 791, 178 L.Ed.2d 624 (2011); Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Bland v. Hardy, 672 F.3d 445, 450 (7th Cir.2012) (“[T]he question under Strickland is not whether the lawyer made a mistake, even a serious one; it is whether the lawyer's overall performance was professionally competent.”). But a single error causing sufficiently substantial legal harm to the defendant to call into question an adverse outcome at trial or on appeal will suffice. See Miller, 298 Kan. at 938–39.
Television News Report
For her first point, Morgan contends her trial lawyer was constitutionally ineffective for failing to assert the proper objection to part of a television news report the State presented as part of its evidence to the jury. The news report, prepared the day after the incident, shows Morgan and Sabrina being escorted into and out of a courthouse for an initial court appearance. In response to a news reporter's questions, Morgan makes statements, essentially consistent with her trial testimony, to the effect she hit barricades and hurt no one. She and Sabrina also make comments about the failed real estate purchase. As pretrial detainees, Morgan and Sabrina are wearing orange jumpsuits—typical jailhouse garb. And they are shackled to each other with a single pair of handcuffs, right wrist to left wrist. They are not otherwise restrained; they are not wearing leg irons or belly chains. The law enforcement officers escorting Morgan and Sabrina allow reporters to approach them. In short, the news footage does not suggest the law enforcement officers considered the pair to be much of a flight risk or particularly dangerous.
At trial, Morgan's lawyer objected to the news footage as inadmissible hearsay. But that objection is plainly inapposite. Under K.S.A. 60–460(f) and (g), out-of-court admissions of a party and confessions, meaning statements of a criminal defendant related to the charged offense, are both exceptions to the hearsay rule. Either of those exceptions would permit the introduction of Morgan's statements in response to the news reporter's questions. The district court admitted them at trial as admissions under K.S.A. 60–460(g).
In her 60–1507 motion, Morgan tried to constitutionalize the lawyer's mistake by arguing that he should have objected on the grounds that the impermissibly prejudicial impact of the news report—showing Morgan in prison clothes and handcuffed—outweighed the probative value of the statements. See K.S.A. 60–445; State v.. Huddleston, 298 Kan. 941, 961–62, 318 P.3d 140 (2014) (district court has discretion to exclude evidence if its probative value is outweighed by its impermissibly prejudicial effect). Morgan contends her lawyer's failure to make that objection violated the Sixth Amendment. The argument, however, comes up short for multiple reasons.
First, it's far from obvious that an objection based on undue prejudice should have been sustained. Morgan's physical appearance in a jumpsuit and handcuffs in the brief news report would not seem to have huge significance in the course of a 6–day trial. The circumstances simply were not unduly prejudicial in the same way a criminal defendant's appearance at trial similarly clothed and confined would be.
Simply put, criminal defendants are not to appear in front of jurors during trial in jail clothes or visible restraints. Such practices deprive a criminal defendant of constitutional due process. Estelle v. Williams, 425 U.S. 501, 512–13, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (appearance of criminal defendant in jail uniform throughout jury trial plainly violates due process protections). Here, the district court carefully protected Morgan's rights; she wore civilian clothing during the trial and was not physically restrained.
The unfairness in forcing a criminal defendant to appear during trial in a jail uniform or restraints is manifest. A criminal defendant wearing a jail uniform at trial presumably has been unable to post bail. A defendant's status as a pretrial detainee isn't relevant to what the jurors are to decide, but it may prompt improper speculation. Jurors may infer the defendant has a bad criminal record or is otherwise considered particularly dangerous and, therefore, received an especially high bond amount or was denied a bond. See State v. Simmons, 45 Kan.App.2d 491, 495–96, 249 P.3d 15 (2011), aff'd 295 Kan. 171, 283 P.3d 212 (2012). They similarly may assume the evidence against the defendant is particularly strong. The reality simply may be that the defendant is too poor to post even a modest bond. The appearance of a criminal defendant during trial in civilian clothing but with visible physical restraints would also prompt prejudicial and impermissible speculation, perhaps focused more particularly on immediate dangerousness or risk of flight. At the same time, a criminal defendant's appearance at counsel table in a prison uniform or shackles during a jury trial furthers no permissible evidentiary purpose with respect to the jurors' task in deciding guilt. A district court, therefore, must avoid circumstances fostering those improper inferences. 45 Kan.App.2d at 496.
The news report didn't send a constant visual message to the jurors throughout the trial that readily encouraged negative and irrelevant speculation about Morgan. The jurors could reasonably conclude anyone likely would be detained in custody at least briefly on criminal charges and, thus, might be brought to an initial court appearance in jail clothes. And, as we have said, Morgan was not restrained in a way that suggested the officers escorting her to court thought her particularly dangerous.
Moreover, Morgan's statements to the news reporter about the incident were relevant and material to the issues and the task before the jurors. Nobody has argued, let alone shown, the statements were cumulative of other admissions from Morgan the State might have offered during its case-in-chief. The circumstances under which Morgan made the statements were not as corrosive as requiring a criminal defendant to sit in front of the jurors throughout a trial in prison clothes and chains. Morgan bore significant responsible for the relevance of the news footage. Had she refused to answer the reporter's questions or simply said no comment, we doubt the tape could have been admitted, since it would then appear to be a gratuitous portrayal of Morgan in prison garb and shackles for little purpose other than to prejudice the jurors. Having chosen to make relevant statements in those circumstances, Morgan must bear some responsibility for the overall impact of those statements at trial. In short, we think it at least a fair conclusion that a more-prejudicial-than-probative objection would have been overruled. We refrain from saying so definitively. If we are wrong, the failure to assert the objection would have been a mistake on the part of Morgan's trial lawyer. Nonetheless, as a single missed objection to one piece of evidence in an exceptionally strong prosecution case, it would have been a mistake that quite arguably did not fall below the level of advocacy required by the Sixth Amendment.
Finally, however, even assuming Morgan has shown substantially substandard constitutional representation by her trial lawyer in this respect, she cannot satisfy the second component of the Strickland test by showing material prejudice—prejudice sufficiently pronounced that it reasonably might have affected the outcome of the trial. The evidence against Morgan was overwhelming in this case, especially considering that the reckless second-degree murder charges did not require the State to prove intentional killings but rather deaths occurring “under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 21–3402(b). Morgan knew she was in a construction area. She saw barricades and a flagger slowing oncoming traffic. By her own testimony, Morgan saw a second person, who she said threw a gas can at the truck. Morgan then accelerated to a high speed (assuming she actually had slowed at all) and took off without any knowledge of or regard for other people in the immediate area. Surviving members of the work crew described Morgan as racing through the construction area oblivious to their presence and the extraordinary threat her speeding pickup truck posed to them. And if their version of the events is correct, Morgan drove through the construction zone about 30 minutes earlier and would have seen numerous workers at the site then. Morgan's underlying explanation for her actions based on her fear of the Missouri gang comes across as fabricated or delusional. Even if the story were true, it didn't furnish a legal defense to the charges.
The jury did ask to review the news report during its deliberations, but that doesn't bear on how a trial objection on the report's admissibility should have been decided. Something in the report presumably was of importance to at least one juror. There is no way to know exactly what it was, and the district court could not have foreseen that particular interest in ruling on the evidentiary objection. In other words, the trial lawyer's failure to object on any particular ground was no more or less erroneous because the jury later asked to review the news report.[*]
[*]The jury's request was, of course, inscrutable. One juror may have been convinced Morgan made a particular factual admission in the news report despite the other jurors saying otherwise. If that were the case, the jurors—or at least the vast majority of them—wanted to review the report for what it didn't show. The reverse could have been true: A majority believed the tape did contain a significant admission, while a few did not. The responses of Morgan and Sabrina to the reporter's questions suggest an unusually symbiotic relationship between mother and daughter. Perhaps that was of interest to the jurors, especially after hearing Sabrina testify. It is not our business to speculate about the motivation behind the jurors' request to view the tape during deliberations. We cannot infer that the news report or Morgan's appearance in it was the decisive piece of evidence leading to the verdicts. A review of the entire record would suggest otherwise.
In that context, we comfortably conclude that there was no likelihood the jurors would have returned a different verdict or would have been unable to agree on a verdict had the news report had been excluded as evidence. Or stated as Morgan has framed the issue, the jurors' observation of her in a jumpsuit and handcuffs in the news footage was not sufficiently prejudicial that we could or would conclude the result of the trial likely would have been different absent that evidence. We see no basis for granting relief to Morgan on this point.
911 Call
Morgan next argues that her trial lawyer was constitutionally ineffective for failing to admit into evidence a recording of the 911 call Sabrina made as Trooper Brooks attempted to stop the pickup truck after it sped away from the construction zone. Morgan's trial lawyer did not attempt to have Sabrina authenticate the recording when she was testifying. The lawyer mistakenly believed the recording had been included in a stipulation with the State admitting certain evidence at trial. He attempted to admit the recording while Morgan was on the stand, drawing an objection from the prosecutor based on hearsay and lack of foundation. During a discussion of the objection outside the presence of the jurors, the lawyer neither indicated the precise evidentiary purpose for the tape nor suggested reasons the State's objection might be erroneous. The district court sustained the objection. Morgan's lawyer said he would call Sabrina as a defense witness to put the recording into evidence. But he never did. He neither attempted to offer the recording some other way nor proffered its content.
During the 60–1507 hearing, Morgan's trial lawyer testified that he met with his client and she insisted that he not call Sabrina as a witness. The trial lawyer said he bowed to that request, although he also concluded Sabrina was such a poor witness that recalling her would have been a bad idea.
The 911 recording was admitted as evidence at the 60–1507 hearing, but it is not part of the record on appeal. In ruling on the 60–1507 motion, the district court concluded that Morgan's trial lawyer should have introduced the recording through Sabrina and was ineffective for failing to do so after the State had called her as a witness. The district court, however, also found the error to be harmless. Given the strength of the evidence against Morgan, the district court concluded the admission of Sabrina's 911 call would not have altered the outcome of the trial. The district court, therefore, determined Morgan could not demonstrate prejudice satisfying the second part of the Strickland test.
We can safely conclude Morgan's trial lawyer erred in not laying a foundation for the admission of Sabrina's 911 call. The stipulation did not encompass the 911 recording, and Morgan's lawyer should have been aware of that during the trial. Depending on the content of the 911 call and the purpose for which it would have been admitted—neither of which is especially clear from the record in front of us—there probably would have been ways of getting it into evidence without Sabrina's foundational testimony. We suppose the error here amounted to a Sixth Amendment violation, but we needn't reach such a conclusion.
Even if we were to assume the error amounted to a violation of the Sixth Amendment right to counsel, Morgan faces an insurmountable obstacle to any relief. Without being able to review the recording of the 911 call and, thus, to hear exactly what Sabrina said and how she said it, we cannot make any reasoned assessment of the potential or actual prejudice to Morgan in applying the second step of the Strickland analysis. Any judgment we might make would be speculative, and this is something on which we cannot speculate. Morgan bears the burden of proving prejudice. Morgan also has an obligation to furnish a record on appeal sufficient for review of what she contends are points of error. See State v. Kidd, 293 Kan. 591, 601, 265 P.3d 1165 (2011); State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). She has failed to supply that record in the absence of the recording of the 911 call and, in turn, has failed to carry her burden of proof. See Harman v. State, No. 108,478, 2013 WL 3792407, at *1 (Kan.App.) (unpublished opinion) (“When there are blanks in that record, appellate courts do not fill them in by making assumptions favoring the party claiming error in the district court.”), rev. denied 298 Kan. –––– (November 22, 2013). We, therefore, cannot find a basis for granting relief on the issue.
State's Closing Argument
For her final point on appeal, Morgan contends the district court should have found the lawyer handling the direct appeal of her convictions violated the Sixth Amendment by failing to challenge the prosecutor's closing argument to the jurors as sufficiently improper to deny her a fair trial. Morgan specifically submits that the prosecutor's repeated use of the phrase “we know” to introduce various representations rendered the closing argument both misconduct and highly prejudicial. In ruling on the 60–1507 motion, the district court found the prosecutor's closing argument, though improper, did not deprive Morgan of a fair trial. In turn, the district court concluded the lawyer representing Morgan on direct appeal could not have provided constitutionally inadequate representation by declining to brief a point that would have been unsuccessful. We agree. The Sixth Amendment duty of adequate representation does not require a lawyer to assert unmeritorious claims. See Baker v. State, 243 Kan. 1, 10, 755 P.2d 493 (1988); Littlejohn v. State, 29 Kan.App.2d 506, 508, 28 P.3d 448 (2001); Franklin v. State, No. 110,331, 2014 WL 4627580, at *2 (Kan.App.) (unpublished opinion), petition for review filed September 24, 2014.
In reviewing the point, we also analyze the prosecutor's closing argument. The Kansas courts use a well-recognized, two-step test for measuring the impropriety of closing arguments in criminal cases:
“ ‘First, the appellate court must decide whether the comments fall outside the wide latitude afforded a prosecutor in discussing the evidence and the law. Second, if the prosecutor has exceeded those bounds, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury to the extent the defendant was denied a fair trial. State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009) (outlining mode of analysis); see State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009) (noting considerable range permitted advocates, including prosecutor, in arguing their causes injury summations).’ “ State v. Franco, 49 Kan.App.2d 924, 938, 319 P.3d 551 (2014) (quoting State v. Schreiner, 46 Kan.App.2d 778, 793–94, 264 P.3d 1033 [2011], rev. denied 296 Kan. 1135 [2013] ).
If the argument falls outside what is proper, the courts then look at three factors to assess the degree of prejudice:
“(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; 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. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60–261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, [22,] 17 L.Ed.2d 705, 87 S.Ct. 824 (1967) [conclusion beyond a reasonable doubt that the error ... changed the result of the trial], have been met.' [Citations omitted.]” State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).
See also Franco, 49 Kan.App.2d at 938–39. The Kansas Supreme Court recently reiterated this test in State v. De La Torre, 299 Kan. ––––, 331 P.3d 815, 828 (2014).
As the district court recognized, the phrase “we know” is quite elastic when stretched around parts of a closing argument. And it can be used quite inappropriately, as the district court also pointed out. The phrase can be deployed with at least three meanings, two of which are improper.
The Kansas Supreme Court has recognized that a prosecutor may properly introduce a factual representation in a closing argument with a “we know,” if the facts are essentially undisputed. State v. Corbett, 281 Kan. 294, 315–16, 130 P.3d 1179 (2006). Used that way, the phrase refers to everyone in the courtroom accepting something to be so, as in, “We [all] know the sun rises in the east and sets in the west.” Attaching the phrase to specific facts in a case, except for obviously uncontroverted ones (“We know this happened in Douglas County”), may be problematic. Neither defense counsel nor the jurors may share the prosecution's view of just what has been disputed in the evidence.
The phrase “we know” also can be used improperly in a closing argument. First, the “we” may refer to the representatives of the State, as a party, knowing something. That might include law enforcement officers or other government agents along with the prosecution team. Or it might refer to the prosecutor alone in a “royal we” sense. In that context, the phrase effectively becomes an improper assertion of the prosecutor's personal opinion or comment on the evidence and what it proves. See State v. Peppers, 294 Kan. 377, 400, 276 P.3d 148 (2012). The phrase becomes a substitute for the prosecutor saying, “I know this to be true.” That is, at best, a doubtful introduction to a line of argument even if it is ultimately tied to an analysis of the evidence.
Second, the “we” might be impermissibly intended by a prosecutor to refer to himself or herself and the jurors with the implicit exclusion of the defendant and his or her lawyer. In that way, the phrase conveys that you—the jurors—and I know what is really going on here, but the defendant doesn't. Such a usage seems particularly inappropriate, since it teams the prosecutor with the jurors as the knowledgeable participants in the trial in direct contrast to the defendant and his or her legal representative.
From reviewing a transcript, a court often cannot tell just how the phrase was meant. Its elasticity also fosters ambiguity. A gesture or hand signal from the speaker could add clarity. For example, extending a hand toward the jury as the phrase is said would tend to convey a meaning joining the speaker with jurors as the knowledgeable group. But extending both hands outward and slightly upward would tend to be an encompassing signal placing everyone in the room in the group. Those sorts of physical actions are not recorded in a transcript, and any reference to them exists only if a party or the court gives an oral description, typically in conjunction with a complaint about the conduct.
The district court noted that the prosecutor gave a closing argument laced with “we know” introductions to specific representations. The district court found some of them to be of the first type referring to uncontroverted matters and, thus, proper. But others injected impermissible personal opinion of the prosecutor rather than directing the jurors to particular evidence supporting the assertion. See De La Torre, 331 P.3d at 830. We have reviewed the closing arguments and find the district court's characterization to be generally accurate. The prosecutor made improper arguments to the jury by using the phrase “we know” in an impermissible way. In some instances, “we know” appears to be the prosecutor's personal endorsement of certain factual representations. In others, the phrase seems to be pitched to the jurors as partners with the prosecutor in the trial process.
We, therefore, look to the second part of the test governing improper arguments to assess the impact of the prosecutor's conduct. The gross-and-flagrant component presents a mixed bag. The prosecutor misused the phrase repeatedly. But the error itself is not especially gross and flagrant as compared to characterizing a criminal defendant as an animal or trading on jurors' fears about community safety. See State v. Jordan, 250 Kan. 180, 193, 825 P .2d 157 (1992) (improper to argue defendant should be convicted to promote community safety); State v. Gammill, 2 Kan.App.2d 627, 631, 585 P.2d 1074 (1978) (referring to defendant as “an animal” in closing argument “definitely improper”). Likewise, the law isn't a model of clarity on the use of arguments incorporating the phrase “we know” and when it may be improper. Those considerations cut against grossness and flagrancy. But the prosecutor repeated the improper form of argument while addressing the jurors. That cuts the other way. The district court found the improper use of “we know” sufficiently at odds with established law to be gross and flagrant, a conclusion we view as less than obvious. The question is a close one, and, given the other considerations, we need not venture a definitive answer.
The argument, however, was not animated by ill will. The prosecutor did not disregard orders of the court or rulings on objections in pressing the closing argument. See State v. Phillips, 295 Kan. 929, 945–46, 287 P.3d 245 (2012). Again, the law wasn't so clear that the argument was patently improper or obviously corrosive of Morgan's right to a fair trial. The prosecutor repeated the phrase during the closing argument. But it was used as a rhetorical device, albeit an impermissible one, rather than as an attention grabbing emotional ploy or as a substantive misstatement of the law or the evidence. We find the prosecutor did not act with ill will.
The “we know” flourish adds little or nothing to an otherwise effective closing argument. The phrase could easily be replaced with “the evidence shows,” an old standby, or “you know,” meaning the jurors, or even “you know from the evidence.” Given the potential problems with it, skilled advocates would do well to find better ways of expressing themselves in closing argument.
Last, given the clear evidence against Morgan and the absence of a solid defense, we say with near certainty the improper argument could not have caused the jurors to convict. In other words, we have no doubt the verdicts would have been the same absent the impermissible aspects of the prosecution's closing argument. In short, the defects in the closing argument amounted to harmless error, as the district court found in ruling on the 60–1507 motion.
As we noted, the lawyer handling Morgan's direct appeal could not have violated the Sixth Amendment right to counsel by failing to brief a point premised on prosecutorial misconduct in closing argument. The point would have been denied. The Sixth Amendment does not require the assertion of legally empty points or positions on behalf of a criminal defendant. Morgan's articulated claim against appellate counsel warrants no relief. The district court correctly denied Morgan's 60–1507 motion on that ground.
Conclusion
We have thoroughly examined the issues Morgan has raised on appeal from the denial of her 60–1507 motion. On those issues, the district court correctly found no constitutional defects in the convictions and properly denied Morgan relief. Morgan also has argued that the combined effect of the deficient performances of her trial lawyer and the lawyer representing her on direct appeal violated her Sixth Amendment right to counsel. We need not separately address the argument because we have found no legal deficiency by the appellate lawyer.
Affirmed and cross-appeal dismissed.