Opinion
No. 112,277.
01-15-2016
STATE of Kansas, Appellee, v. Osi Bisa McBRIDE, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM.
Osi Bisa McBride appeals his kidnapping conviction (K.S.A.2014 Supp. 21–5408[a]3 ). McBride contends he was denied a fair trial by the prosecutor's misconduct in closing arguments. He also claims the district court improperly relied on his criminal history at sentencing. Finding no reversible error, we affirm both the conviction and sentence.
Factual and Procedural Background
McBride had an intermittent romantic relationship with Christina Craig for about a year and a half. Craig had several dependents and worked as an education paraprofessional. Occasionally, McBride gave Craig money to help pay her utility bills.
McBride was seeing Craig in the weeks leading up to November 7, 2011, the date of the reported kidnapping. During that time period, McBride gave Craig $800 for her electricity bill. On November 6, 2011, McBride bought dinner for the family and gave Craig $60 for her water bill. McBride also spent the night with Craig, and they had consensual sexual intercourse.
The next morning, Craig was readying herself to leave for work. Although Craig usually took the bus to work, on this morning she asked McBride for a ride. Craig testified that she “went to [the] mirror to do my makeup, and I[saw] there was a hickey on my neck.” Craig described it as “not big and huge, but very noticeable.”
Craig decided to change her clothes and wear a turtleneck shirt to cover the mark. This enraged McBride, who accused her of planning to meet another man. Craig testified that she explained to McBride, “ ‘It's not professional for me to go to this meeting where there's going to be other teachers, with a hickey on my neck.’ “ Craig testified that although McBride was still “ranting and raving,” she told him, “ ‘I need to go. Are you going to take me or not?’ “
After the couple entered the car, McBride demanded return of the $60 he had given her the previous day. Craig's book bag contained the $60 because she intended to pay her water bill after work. Craig lied to McBride by telling him the money was in the house. McBride persisted, however, and when Craig tried to step from the car with the book bag, McBride demanded that she leave it behind.
Craig testified the dispute lasted for at least 20 minutes before McBride finally drove from the house. Although Craig thought they were on the way to her work, McBride pulled into the garage of his mother's house, which was on the route to her employment. Craig testified that she refused to leave the car, but McBride “snatched me by my arm ... and pulled me out of the car.”
Craig said McBride “walked me to the house,” took her inside, and eventually searched her book bag. McBride became angry again when he found the $60 inside. Craig also had her cell phone in the book bag, and she testified McBride called the phone numbers of males listed in the phone, saying to the men, “ ‘Are you [expletive deleted] my girl?’ ‘Stay away from my girl.’ That sort of thing.” Craig maintained McBride was “very angry. As he's yelling at them on the phone. He doesn't even know them.” Two of the men testified, however, that although McBride asked if they were seeing Craig, he did not sound angry.
Craig testified that McBride then raped and sodomized her. She reported the crimes to law enforcement later that day and saw a sexual assault nurse examiner. Of note, the nurse did not find a mark on Craig's neck or any other injuries.
In his initial closing argument, Assistant District Attorney Todd Hiatt told the jury that “[w]e're asking you to consider all the evidence that you've heard from that chair over the last couple days and say do you believe Christina Craig?” Hiatt continued:
“Based on all the evidence. Right? Based on the way [Christina] reacted that afternoon, and the consistency from person to person to person, based upon her emotional state when she met with [an officer], based on her emotional state when she met with [the nurse], based on her emotional state as she sat here and talked to you, the way I see it, there's two options. Right? She's either a heck of an actress and been doing it for a long time or she was raped and criminally sodomized on November 7th, 2011.”
Defense counsel Kathleen Ambrosio responded in closing argument that Craig's account was not corroborated by the evidence. In particular, Ambrosio argued that Craig did not have a hickey. She remarked that “it's interesting to note that on the day he takes back the money she crucially needs, that's the day she accuses him of rape.” Finally, Ambrosio emphasized the presumption of innocence afforded to McBride.
Hiatt began his rebuttal argument by asking, “What other evidence do you want? Rape cases don't happen in Wal–Mart parking lots where you get videotape and see everything, you know.” Hiatt argued:
“I mean, we can raise our voices and we can talk really fast and we can make a big deal about things, but let's look at those things a little more clinically and step back a little bit. Okay. One, hickey was never Christina's word. She said she got up that morning and she saw a mark on her neck.”
The prosecutor used this contention to explain why the nurse had not found the injury, suggesting the mark was only a slight irritation from McBride's unshaven face or something of the sort that would fade quickly. Hiatt argued the discrepancy between Craig's testimony and the lack of confirmation by the nurse “doesn't really mean anything at all.”
Hiatt then argued:
“The defendant sits there presumed innocent. I would submit to you that Christina Craig, who comes in here, deserves a little bit of consideration, too. She gets up there under oath. Right? She swore under penalty of perjury to tell you folks the truth. And as she tells you what happened, did you find anything in her story that made you think she was lying to you at all? As she sat there under oath, on that stand and related to you in intimate detail that day, doesn't she deserve a certain presumption as well?”
The prosecutor later stated:
“They got no burden. He doesn't have to prove anything to you. I mean, she can say they've proven things wrong, but that's not their burden. They don't have [to do] that. But when they try to poke holes in her story, don't you want to see something that's going to back that up? I mean, if you're going to poke holes in what she has to say, then substantiate it, let's see it. You think that she's going to talk to this guy, or talk to all these people about this guy raping her for 60 bucks? Are you serious? Do you think this is the first time that she's faced the possibility she can't pay the water bill on the day it's due? Do you think this is the first time that she's had to go without water?”
The State of Kansas charged McBride with aggravated kidnapping (K . S.A.2014 Supp. 21–5408[b] ), rape (K.S.A.2014 Supp. 21–5503[a]1[A] ), and two counts of aggravated criminal sodomy (K.S .A.2014 Supp. 21–5504[b]3 [A] ). The jury was unable to reach unanimous verdicts on all of the charges. But the jury did convict McBride of the lesser included crime of kidnapping. Based on a criminal history score of B, McBride was sentenced to 216 months in prison. McBride appeals.
Prosecutorial Misconduct
On appeal, McBride contends that Hiatt “went beyond the latitude afforded to prosecutors several times when he improperly commented on the credibility of the alleged victim, bolstered the credibility of the victim, and improperly implied the defendant had to meet a burden of proof in order to present his defense theory.” We will consider the comments made by the prosecutor individually.
Our standard of review is well established:
“Appellate review of allegations of prosecutorial misconduct, including misconduct occurring during closing arguments, which need not be preserved by a contemporaneous objection, requires a two-step process. First, an appellate court determines whether there was misconduct, i.e., whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, if misconduct is found, the appellate court determines whether those comments compel reversal, i.e., whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. In analyzing the second step of whether the defendant was denied a fair trial, an appellate court considers three factors: (1) whether the misconduct was gross and flagrant; (2) whether it was motivated by prosecutorial ill will; 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. No one factor is controlling.” State v. Barber, 302 Kan. 367, Syl. ¶ 4, 353 P.3d 1108 (2015).
In addition, “a prosecutor commits misconduct by making an improper argument, even if the improper argument is made in response to arguments or statements by defense counsel.” State v. Marshall, 294 Kan. 850, 860, 281 P.3d 1112 (2012). “The extemporaneous, rebuttal nature of a prosecutor's argument” nevertheless remains “a factor to be considered by an appellate court.” 294 Kan. at 861. Thus, while it “does not excuse misconduct” if challenged statements were made in response to defense arguments, the defense arguments do “provide context for the State's rebuttal statements.” State v. Longoria, 301 Kan. 489, 522, 343 P.3d 1128 (2015).
Statements that Craig Deserved Consideration and a Presumption
McBride challenges Hiatt's statements that Craig deserved consideration similar to McBride's presumption of innocence—what McBride characterizes as a “presumption of truthfulness”—based on the fact that Craig had testified under oath. McBride contends: “Because there is no legal support for a victim or witness to have a presumption of truthfulness, the prosecutor's comments improperly bolstered the credibility of the victim.” We agree there was no legal support for Hiatt's argument.
The jury was instructed, “It is for you to determine the weight and credit to be given the testimony of each witness.” This instruction properly conferred upon the jury the task of weighing witness credibility without any sort of presumption. Compare State v. Colbert, 26 Kan.App.2d 177, 182, 987 P.2d 1110 (“An evidentiary presumption in a jury instruction deprives a defendant of due process when it effectively relieves the State of its burden of proof.”), rev. denied 268 Kan. 850 (1999). The presumption enjoyed by McBride was different—not a presumption regarding the truthfulness or credibility of witnesses, but of his personal innocence until proven guilty beyond a reasonable doubt. See K.S.A.2014 Supp. 21–5108(b). We conclude that Hiatt's misstatement of the law was improper. See State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006).
Statement Regarding the Disputed $60
McBride's next claim relates to defense counsel's suggestion that Craig reported she was raped because McBride demanded the return of his $60. McBride focuses on one of several rhetorical questions Hiatt posed in response to that suggestion: “Are you serious?” Of note, Hiatt was not arguing the crime of conviction, kidnapping, when he posed that rhetorical question or the others surrounding it. But because Craig was the complaining witness and Hiatt's question related to her credibility, we will consider the statements.
According to McBride, Hiatt's rhetorical question “implied that [he] believed the defense's theory that Craig would make up something for $60 to be ridiculous.” A prosecutor may argue a witness' motivation or lack of motivation to be truthful so long as the argument is based on the evidence and not on the prosecutor's “own personal opinion.” State v. Ortega, 300 Kan. 761, 776, 335 P.3d 93 (2014). We are persuaded that Hiatt argued the evidence here, not his own personal opinion.
Hiatt was responding to a defense inference regarding the evidence. Defense counsel suggested Craig was motivated to falsely report serious crimes in retaliation for McBride's insistence that she return the $60 he gave her. Hiatt's rhetorical questions appealed to the jurors' common knowledge and experience, asking them to conclude that Craig would not have been so vindictive as to falsely report serious sex crimes simply because of a dispute over a relatively small amount of money. We are persuaded this was not an improper argument. Juries are typically admonished, consistent with the instructions here, that they have “a right to use common knowledge and experience in regard to the matter about which a witness has testified.” Hiatt may properly use rhetorical questions, rather than direct statements, to argue the evidence. See Ortega, 300 Kan. at 777.
We also find guidance in Longoria. In that first-degree murder case, defense counsel directed the jury's attention to the victim's friends and questioned why the police had not more closely investigated them. One of the friends had apparently “hung his head and said that something ‘probably’ happened to [the victim] when initially confronted by [the victim's] sister.” 301 Kan. at 522. The prosecutor argued in rebuttal: “ ‘And [her friend] killed her because he hung his head? He was a friend. Come on with the [friend]. Seriously.” 301 Kan. at 522. The prosecutor also used sarcasm during rebuttal to ridicule other defense arguments.
The prosecutor in Longoria, similar to Hiatt, used irony as a shorthand appeal to the juror's common knowledge and experience in response to defense inferences regarding the evidence. In Longoria our Supreme Court recognized that “[g]enerally, a prosecutor may use rhetorical devices ... as a tool for putting the facts of a case into a meaningful context.” 301 Kan. at 524. The Supreme Court concluded that “[w]hile the prosecutor's sarcasm came dangerously close to asserting a personal opinion, his effort to tie any statements back to the evidence ameliorated the suggestion that the statements were his personal view.” 301 Kan. at 526–27.
Here as well, Hiatt was arguing the evidence. The relevant facts, such as the reason why McBride gave $60 to Craig and then demanded its return, were all in evidence. Hiatt's argument was also less sarcastic than the statements tolerated by our Supreme Court in Longoria. We are persuaded that Hiatt's argument was not improper.
Statements Regarding Options and Craig's Demeanor
McBride next addresses Hiatt's argument: “ ‘[T]here's two options. Right? [Craig's] either a heck of an actress and been doing it for a long time or she was raped and criminally sodomized on November 7th, 2011.’ “ McBride argues: “This comment was misconduct because it misstated the jury's options in determining Craig's credibility and improperly influenced the jury to believe the victim was entirely credible.” Again, Hiatt's argument was not directed at the crime of conviction, but since it related to Craig's credibility we will consider it.
In support of his legal contention, McBride cites State v. Britt, 295 Kan. 1018, 1028, 287 P.3d 905 (2012), where a defendant claimed prosecutorial “misstatement of logic” regarding the victim's credibility. A minor, A.C., testified the defendant had sexually abused her. The prosecutor argued in closing:
“ ‘I am asking you to assess the credibility of a nine-year-old girl, now 11, and it's just that simple. It's this simple. She's either telling you the truth, in which case she's a victim of a horrible crime and he's guilty, or she's a lying, manipulative, conniving, creative, vindictive, evil child, who's accused this man right here of the most heinous of crimes, and he's innocent. It's one of the two. There are no shades of gray on this, folks. There is no middle ground.
“ ‘And once you decide those things about [A.C.], either she experienced these things and she's a victim, or she's the most evil manipulating person you have ever seen. Because, again, there is no middle ground.’ “ 295 Kan. at 1028.
Our Supreme Court believed to the contrary that “the jury was presented with several ‘shades of gray,’ in assessing A.C.'s credibility.” 295 Kan. at 1028. The court quoted the defense brief, which suggested: “Perhaps ... someone had ‘manipulated’ A.C. into making the allegation. Perhaps A.C. believed she was telling the truth, when in reality, none of the abuse had occurred.” 295 Kan. at 1028. The court concluded the State's argument was “outside the wide latitude given to prosecutors,” 295 Kan. at 1029, because the prosecutor had misstated the evidence or relied on matters not in evidence. See State v. Tahah, 293 Kan. 267, 277, 262 P.3d 1045 (2011).
The present case is distinguishable. Unlike the prosecutor in Britt, Hiatt did not suggest an unseen, nefarious motive for Craig's allegations. Instead, he argued the evidence at trial, which included testimony regarding Craig's distressed demeanor as she described McBride's acts to the police and others. Hiatt then noted Craig's demeanor was either prompted by the acts she was alleging or it was not and that if it was not she had presented a convincing portrayal. While the argument featured an either/or aspect, like the prosecutor in Britt, it did not rule out all possible motives or causes for Craig's behavior, unlike the prosecutor in Britt. We believe this was fair argument, not a misstatement of the jury's options.
Burden Shifting
Next, McBride contends Hiatt shifted the burden of proof at trial by his argument in rebuttal: “But when they try to poke holes in [Craig's] story, don't you want to see something that's going to back that up? I mean, if you're going to poke holes in what she has to say, then substantiate it, let's see it.”
“[A] prosecutor does not shift the burden of proof by pointing out a lack of evidence to support a defense or to corroborate a defendant's argument regarding holes in the State's case.” State v. Williams, 299 Kan. 911, 940, 329 P.3d 400 (2014). Importantly, Hiatt also prefaced his remarks by correctly reiterating McBride's lack of a burden, which lessened the chance of juror confusion. See State v. Cosby, 293 Kan. 121, 136, 262 P.3d 285 (2011). Considered in context, Hiatt remained within the wide latitude allowed the State in discussing the evidence.
Misrepresenting a Fact and Disparaging Defense Counsel
For his final example of prosecutorial misconduct, McBride challenges these comments, also from Hiatt's rebuttal argument:
“I mean, we can raise our voices and we can talk really fast and we can make a big deal about things, but let's look at those things a little more clinically and step back a little bit. Okay. One, hickey was never Christina's word. She said she got up that morning and she saw a mark on her neck.”
McBride argues Hiatt misrepresented the evidence because “it was false that Craig never used the word hickey.” McBride maintains Hiatt “sought to disparage defense counsel by implying that the defense misrepresented the facts to the jury and [was] trying to mislead the jury.”
We are uncertain about McBride's disparagement argument. If McBride includes the first sentence quoted above, the pronoun is “we,” and the record does not otherwise identify the person or persons to whom the prosecutor is referencing. Hiatt may have been specifically referring to Ambrosio, both Ambrosio and him, or trial attorneys in general. McBride bore the burden to designate a record affirmatively showing error; and having failed to make such a designation, we conclude this particular claim of error fails. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). Considering the alleged disparagement on the merits, however, we would not find misconduct. See State v. Crum, 286 Kan. 145, 149–50, 184 P.3d 222 (2008).
We agree with McBride that the second and third sentences quoted above were inaccurate. Craig did use the word “hickey” at trial. But McBride does not argue the inaccuracy itself was misconduct. Instead he focuses on the alleged disparagement: “[B]ecause it factually did not matter whether the mark was called a hickey or a mark, the real implication of the prosecutor's comments was to imply that defense counsel was trying to make a big deal out of things and mislead the jury with facts not in evidence.”
We agree it did not matter whether the mark was called a hickey or a mark. But the disparagement McBride claims, assuming it existed, seems subtle and slight. “Prosecutors are granted wide latitude to argue cases because it is their duty to present them with “ ‘earnestness and vigor and to use every legitimate means to bring about a just conviction.’ [Citations omitted.]” State v. Robinson, 303 Kan. –––, ––– P.3d –––– 2015 WL 6829686, at *169 (No. 90,196, filed November 6, 2015). The prosecutor did not engage in misconduct by arguing that the importance of the hickey or mark was over-emphasized by defense counsel. This was fair argument, not disparagement. We could not sustain a wide latitude for prosecutors to argue cases if the argument apprehended by McBride as disparagement were considered misconduct.
In summary, we have identified only one instance of prosecutorial misconduct among the several claimed by McBride—Hiatt's request that the jury presume Craig's credibility. Next, we apply the second step of the analysis by considering whether the misconduct was gross and flagrant; whether it was motivated by prosecutorial ill will; and 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. Barber, 302 Kan. 367, Syl. ¶ 4.
Gross and Flagrant
Misconduct is gross and flagrant if it “was repeated, was emphasized, violated a long-standing rule, violated a clear and unequivocal rule, or violated a rule designed to protect a constitutional right.” State v. Killings, 301 Kan. 214, 238, 340 P.3d 1186 (2015).
Hiatt's comments that Craig “deserves a little bit of consideration, too” and his rhetorical question, “[D]oesn't she deserve a certain presumption as well” were vague as to exactly what consideration or presumption the jury should give to Craig's testimony. While improper, ambiguity mitigated the impropriety. Moreover, the argument was prefaced by appropriately reminding the jury that Craig was sworn to testify truthfully and that she testified in detail regarding her version of the incident. The prosecutor rhetorically asked,”[D]id you find anything in her story that made you think she was lying to you all?” These comments focus on long-standing indicators of truthful testimony—a particularized account that is both coherent and consistent. Of note, defense counsel did not object to the comments and they were not repeated. In context, we fail to discern that these comments were gross or flagrant.
Ill Will
Misconduct is motivated by ill will if it is “deliberate, repeated, or in apparent indifference to a court's ruling.” Killings, 301 Kan. at 238. Hiatt's statements regarding giving consideration or a presumption to Craig's testimony were not repeated or indifferent to any ruling by the district court. Moreover, the comments did not demean McBride, defense counsel, or seek to stoke the passions of the jury. From this record we are persuaded there was no ill will exhibited by the prosecutor.
Direct and Overwhelming Evidence
The State contends it met its burden to show the evidence was so direct and overwhelming that any error was not prejudicial. Before this third factor “can ever override the first two factors, an appellate court must be able to say that the State can meet both the statutory harmlessness standard stated in K.S.A.2014 Supp. 60–261 and the constitutional standard stated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967).” Killings, 301 Kan. at 237. “[A]s a practical matter, the result of the harmless error evaluation depends on the outcome of the Chapman constitutional standard.” 301 Kan. at 237. Thus, the State must show beyond a reasonable doubt there is no reasonable possibility the error affected the verdict. 301 Kan. at 239.
Importantly, despite Craig's testimony, the jury acquitted McBride of several serious felonies while it convicted him only of the lesser included crime of kidnapping. This suggests the prosecutor's improper argument did not result in the jury wholly embracing the truthfulness of Craig's testimony. Rather, the jury appears to have properly considered Craig's testimony in light of the corroborative evidence.
All the evidence at trial indicated that Craig was preparing for work on the morning of November 7, 2011, and it was uncontroverted that McBride took Craig to his mother's house instead of her place of employment. Even McBride's sister, testifying as a defense witness, verified that she had stopped by the house and saw Craig there. Thus, the only issue with respect to kidnapping was whether Craig was at the house by force or threat. Given that Craig had dressed for work and was being driven to work, there was no explanation for Craig's presence with McBride at the house other than, as Craig testified, she was forced into the residence.
McBride argues, however, that because his first trial ended in a mistrial on all charges, Hiatt's “misconduct in this trial swayed the jury from a mistrial on all counts to a conviction of kidnapping .” We find this argument speculative for two reasons. First, the offending comment was brief, rather vague, and a very small aspect of the entire trial. The jury was also instructed that arguments of counsel are not evidence. Instruction No. 1 read: “Statements, arguments and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. If any statements are made that are not supported by evidence, they should be disregarded.”
Second, McBride's conjecture ignores the fact that the evidence admitted in both trials was different. For example, the evidence at the first trial was essentially limited to Craig's testimony. The second trial featured additional evidence that Craig was at the house. The State introduced photographs and testimony from officers stating that Craig's descriptions of the interior of the house matched what they found inside. Additionally, as noted earlier, McBride called his sister as a witness at the second trial, and she testified to seeing Craig at the house. Given the difference in the presentation of evidence during both trials, McBride's claim that Haitt's errant comment caused his conviction is not convincing.
Having carefully considered the trial record, we find the State has shown beyond a reasonable doubt that there is no reasonable possibility the prosecutor's error in closing argument affected the verdict. See Killings, 301 Kan. at 239. We conclude that McBride was afforded a fair trial.
Use of Criminal History in Sentencing
For his second issue, McBride contends his rights to a jury trial and proof beyond a reasonable doubt were violated by the district court's consideration of his criminal history at sentencing. McBride candidly acknowledges the Kansas Supreme Court ruled to the contrary in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Our Supreme Court has “repeatedly confirmed Ivory 's holding on numerous occasions thereafter.” State v. Castleberry, 301 Kan. 170, 191, 339 P.3d 795 (2014). Since our Supreme Court shows no indication of reconsidering Ivory, we bound by its precedent. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
Affirmed.