Opinion
No. 110234.
05-22-2015
STATE of Kansas, Appellee, v. Christopher Lamar BROWN, Appellant.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher Lamar Brown appeals after a Shawnee County jury convicted him of two counts of criminal discharge of a firearm, aggravated battery, aggravated assault, and attempted second-degree murder. Brown contends that the district court erred in instructing the jury to consider the lesser included offense of attempted voluntary manslaughter sequentially—rather than simultaneously with—the attempted second-degree murder instruction. But second-degree murder and voluntary manslaughter now require different states of mind. As such, we find that prior caselaw requiring that second-degree murder and voluntary manslaughter instructions be given simultaneously is no longer applicable. We also find that the prosecutor did not improperly comment on Brown's postarrest silence, but even if he did, the State has proven beyond a reasonable doubt that any error did not impact the outcome of the trial. Thus, we affirm.
Facts
On the afternoon of June 11, 2012, Anthony Herrera had planned to go fishing with Mark Webster. Herrera was driving a white Pontiac Bonneville as he drove to Webster's house, which was on the comer of 19th Street and Burnett Street in Topeka. At the time, Webster lived with his girlfriend and their newborn daughter. On his way to Webster's house, Herrera saw Brown—who he knew because he had gone to high school with Brown's brother—in a four-door Grand Prix-type car next to him at the stoplight at the intersection of 37th Street and Kirklawn Street.
Herrera continued west on 37th Street, then took a back street to Gage Boulevard. He stopped at a red light at 29th Street and Gage, and Brown pulled up next to him again. Brown rolled down his window, and Herrera did the same. Brown asked him if he was good and if he knew where “Travon” was. Evidently, Brown was asking about Travon Praylow, who Brown believed caused an accident that injured Brown's cousin. Herrera stated that he did not know where Praylow was and that he had last seen him at a Quick Shop 4 days ago. The light turned green, so Herrera and Brown rolled up their windows and drove away from the intersection.
At some point, Herrera noticed Brown following behind him as he switched lanes. Herrera then called Webster to tell him to come outside because Brown was following him. Brown continued to follow Herrera as he turned off Gage and onto 19th Street. When Herrera pulled into Webster's driveway, Webster was standing outside. Brown pulled in front of the house and asked Herrera to come talk to him. Herrera, who was unarmed, went over to Brown's vehicle. At that point, Webster went into his house to tell his girlfriend to take the baby into another room because he did not know why Brown had followed Herrera to their house.
Brown asked Herrera if he had heard what happened to Brown's cousin. Herrera said he had heard that Brown's cousin had been in a bad wreck. Again, Brown asked Herrera if he knew where Praylow was, and Herrera stated that he did not. He told Brown that he did not hang out with Praylow and that he did not have his number. Brown told Herrera to get in the car, but Herrera refused. After Brown asked a second time and Herrera refused, Brown pulled out a black revolver and said, “ ‘Get in the fucking car and I ain't playing with you.’ “
Herrera put his hands up and ran to hide behind a tree in Webster's yard. As he ran, Herrera heard gunshots. Webster indicated that he came back outside just as Herrera threw his hands up and began to run. Webster later testified that he saw the driver shooting from inside the car. Herrera was shot before he made it behind the tree. However, Herrera did not actually see Brown shoot the gun.
According to Webster, after he heard the gunshots, he went back into his house and got his .40 caliber handgun. Brown was driving away when Webster came back outside the house. So, Webster ran to his backyard where he could see Brown's vehicle and began shooting. Webster shot approximately nine times, and he saw the front passenger window of Brown's car shatter.
Webster went back to the front of the house and saw that Herrera had been shot. In checking on his girlfriend and daughter inside the house, Webster learned that his girlfriend also had been shot, and the baby had blood on her. Herrera got in his car and waited for Webster, who eventually came out of the house with his girlfriend and the baby. Webster then drove them all to the hospital.
Herrera subsequently had surgery to sew up internal damage caused by the bullet. Moreover, Webster's girlfriend had been shot in the arm from a bullet that came in through the bedroom window. It was discovered that the bullet went through her arm, and hospital workers found the bullet in the sleeve of the sweatshirt she was wearing at the time. Also, the baby had scratches on her face from debris caused by the gunshots.
Webster talked to the police and consented to them searching his house as part of the crime scene. Although he did not say so initially, Webster eventually told the police that he had shot at Brown's car as he drove away. Detective Jeremy Warren interviewed Webster at the hospital, and he indicated that the shooter's name was Chris, that he was a black male around 25 or 26 years old, and that he had driven away in a silver Pontiac. In subsequently searching Webster's residence, the police located the loaded handgun Webster had used to shoot at Brown's vehicle.
Topeka Police Officer Michael Diehl located the silver Grand Prix as a result of a 911 call from a neighbor. Officer Diehl noticed that the front passenger side window was shattered, the front driver's side tire was flat, and blood was on the vehicle's inner console. He talked to the neighbor and learned the location of a storm drain that the suspect had reached into as he was running from the area. In searching the storm drain, officers recovered a black revolver and six empty shell casings. It was later determined that the bullets found in Herrera's body and in Williams' sweatshirt matched Brown's revolver.
Later that day, Topeka Police Department Detective Jesse Sherer obtained Brown's cell phone number in conjunction with the investigation. He called the number, and the person who answered identified himself as Chris Brown. Detective Sherer told Brown that law enforcement officers needed to speak with him regarding the incident. The next day, Brown came to the police station and spoke briefly with Detective Roger Smith. Although Brown did not say much, he did ask if anyone had died. He also consented to giving a DNA sample, which was subsequently found to match DNA samples taken from the revolver found in the storm drain as well as the blood spots found inside the Pontiac.
On June 15, 2012, the State charged Brown with two counts of criminal discharge of a firearm at an occupied dwelling, one count of aggravated battery, and one count of aggravated assault. Later, the State filed an amended complaint adding a count of attempted first-degree murder in addition to the other charges. Ultimately, the district court held a 7–day jury trial that commenced on December 18, 2013.
At trial, the State presented evidence from 20 witnesses including Herrera, Webster, and Webster's girlfriend. Also testifying were five witnesses who either heard the gunshots or saw the incident occur; eight detectives or officers of the Topeka Police Department; and two Kansas Bureau of Investigation forensics analysts. The State rested its case on the morning of December 26, 2012.
In Brown's defense, his attorney first called Brown's girlfriend to testify. She stated that Brown was driving her car the evening of the shooting. She testified that he had told her that he was going to his aunt's house at 17th Street and Fairlawn Road before the shooting occurred. After he abandoned the car after the shooting, Brown called her and asked to be picked up from his sister's house, which she did. At that point, Brown did not tell her what had happened. He “just kept saying he was sorry.” She testified that at some point he told her what happened, but she did not testify as to what it was he told her.
Next, Brown testified in his own defense. He stated that on June 11, 2012, he was on his way to visit his aunt, whom he worked for 7 days a week as a care provider for Topeka Independent Living Resource Center. Brown testified that he first saw Herrera at 21st and Gage and that he turned at 19th Street only because he could see the light was red at 17th and Gage. Brown turned onto Burnett—following Herrera—because he thought that Herrera knew the person who caused an accident that had critically injured his cousin a few days earlier.
According to Brown, Herrera got out of his car and talked to Webster for a few minutes. Brown then asked Herrera to come talk to him. Brown testified that he did not tell Herrera to get in the car but simply asked him when the last time was that he saw Praylow. Brown stated that Herrera told him he was with Praylow on the day Brown's cousin was injured in the accident.
During the conversation, Herrera looked inside his car and saw Brown's weapon. On cross-examination, Brown testified that his sister had received a text from Praylow threatening that if Brown or his family told the police anything, their family would be in danger. Brown stated that he got a weapon after his cousin's accident because he did not want any of his other family members to be harmed.
After Herrera saw Brown's weapon, Herrera turned around and looked at Webster. Brown testified that he knew Webster had a weapon based on the way he had both hands behind his back. According to Brown, Webster pulled his weapon and pointed it at Brown as Herrera ran away from the car. According to Brown, he then pointed his gun at Webster and shot twice at him. He also shot twice at Herrera. Brown testified that he shot his weapon to try to create space so he could get away in the car. Brown testified that he never intentionally shot at the house and that he did not know anyone was in the house.
Brown pulled away in the car and after he turned left on to 19th Street, he heard shots. The car was hit multiple times, and Brown stopped on Stone Street because of a flat tire. Brown got out of the car, threw his gun into a storm drain, and ran away. He testified that he called his sister to come pick him up because he wanted to see his children before he turned himself into the police.
The defense rested after Brown's testimony, and the State did not present any rebuttal evidence. After deliberations, the jury convicted Brown of two counts of criminal discharge of a firearm, and one count each of aggravated battery, aggravated assault, and attempted second-degree murder. On March 4, 2013, the district court sentenced Brown to 61 months' imprisonment.
Analysis
Voluntary Manslaughter Instruction
On appeal, Brown contends that the district court erroneously instructed the jury to consider attempted voluntary manslaughter only if the jury did not agree that he was guilty of attempted second-degree murder. Instead, Brown argues that the jury should have been instructed to consider attempted voluntary manslaughter at the same time that it considered attempted second-degree murder. In response, the State contends that the cases Brown relies on to make his argument are inapplicable because the Kansas Legislature subsequently amended the voluntary manslaughter statute and the PIK (Criminal) jury instructions were modified accordingly.
“ ‘For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).’ [Citation omitted.]” State v. Smyser, 297 Kan. 199, 203–04, 299 P.3d 309 (2013).
Brown concedes that he did not request the jury instruction he now claims should have been given; nor did he object to the jury instruction that was given. A party cannot claim error in the district court's giving or failing to give a jury instruction unless (1) the party objected before the jury retired and stating distinctly the matter to which the party objects and the grounds for the objection; or (2) the instruction or the failure to give the instruction was clearly erroneous. K.S.A.2014 Supp. 22–3414(3) ; Smyser, 297 Kan. at 204. Moreover, the party claiming error in the instructions has the burden to prove the degree of prejudice necessary for reversal. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).
The clearly erroneous principle is not a standard of review or a framework for determining whether error occurred. Instead, it supplies a basis for determining if an error requires reversal of a conviction. See State v. Williams, 295 Kan. 506, 510–16, 286 P.3d 195 (2012) ; accord State v. Lewis, 299 Kan. 828, 856, 326 P .3d 387 (2014). Accordingly, we use a two-step process in determining whether the challenged instruction was clearly erroneous: (1) We must determine whether there was even an error by considering whether the instruction was legally and factually appropriate; (2) If we find error, we then must determine whether it is firmly convinced that the jury would have reached a different verdict without the error. Both factors are subject to unlimited review and are based on the entire record. Betancourt, 299 Kan. 135.
Here, the district court appears to have given the jury instructions straight out of PIK Crim. 4th. The district court instructed the jury on attempted first-degree murder, the lesser included offense of attempted murder in the second degree, and the lesser included offense of attempted voluntary manslaughter. See State v. Foster, 290 Kan. 696, 711, 233 P.3d 265 (2010). After instructing the jury on the elements of attempted first-degree murder, the district court instructed the jury as follows:
“You may find the defendant guilty of attempted murder in the first degree, attempted second degree murder, attempted voluntary manslaughter, or not guilty.
“When there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only.”
The district court then instructed the jury separately on attempted second-degree murder and attempted voluntary manslaughter. The district court began the attempted second-degree murder instruction by stating: “If you do not agree that the defendant is guilty of attempted murder in the first degree you should then consider the lesser included offense of attempted murder in the second degree.” Likewise, the district court began the attempted voluntary manslaughter instruction by stating: “If you do not agree that the defendant is guilty of attempted murder in the second degree you should then consider the lesser included offense of attempted voluntary manslaughter.”
Specifically, the attempted voluntary manslaughter instruction given by the district court is taken from PIK Crim. 4th 54.170. Unlike the current version of PIK Crim. 4th 54.170, which incorporates the 2011 amendments to the Kansas Criminal Code, the prior version of the voluntary manslaughter instruction—PIK Crim.3d 56.05—gave two options for instructing a jury on voluntary manslaughter. Option A was to be given to the jury if the defendant was charged with voluntary manslaughter, and option B was to be given if voluntary manslaughter was a lesser included offense of another charged offense. When an instruction for voluntary manslaughter was given as a lesser included offense rather than a charged crime, the trial court was required to instruct using PIK Crim.3d 56.05(B), which directed the jury to consider the offenses of second-degree murder and voluntary manslaughter simultaneously rather than sequentially.
Prior to July 1, 2011, voluntary manslaughter under K.S.A. 21–3403 required “intentional” conduct. On July 1, 2011, however, the legislature changed the culpable mental state for voluntary manslaughter from “intentional” to “knowingly.” See L.2011, ch. 30, sec. 17; K.S.A.2014 Supp. 21–5404(a). The culpable mental state for second-degree murder, however, remained as “intentional” or “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A.2014 Supp. 21–5403(a)(1) and (2).
Subsequently, the PIK Criminal Advisory Committee modified the voluntary manslaughter instruction PIK Crim. 4th 54.170 to reflect the new culpable mental state and also eliminated alternate B previously found in PIK Crim.3d 56.05. The PIK Advisory Committee also adopted the statutory definitions of “intentionally” and “knowingly” for PIK Crim. 4th 52.010. An act is defined as being intentionally done when “with respect to the nature of such person's conduct or to a result of such person's conduct when it is such person's conscious objective or desire to engage in the conduct or cause the result.” K.S.A.2014 Supp. 21–5202(h). On the other hand, an act is defined as being knowingly done “with respect to the nature of such person's conduct or to circumstances surrounding such person's conduct when such person is aware of the nature of such person's conduct or that the circumstances exist.” K.S.A.2014 Supp. 21–5202(i). An act is also defined as being done knowingly “with respect to a result of such person's conduct when such person is aware that such person's conduct is reasonably certain to cause the result.” K.S.A.2014 Supp. 21–5202(i).
On appeal, Brown relies on the Kansas Supreme Court's ruling in State v. Graham, 275 Kan. 831, 837, 69 P.3d 563 (2003), and this court's decision in State v. Cribbs, 29 Kan.App.2d 919, 923–24, 34 P.3d 76 (2001). While both of these cases held that voluntary manslaughter must be instructed simultaneous to second-degree murder when it is a lesser included offense, they are both based on an interpretation of the criminal code as it existed prior to July 1, 2011. Unlike Graham and Cribbs, however, the 2011 amendments to the Kansas Criminal Code were in effect at the time of Brown's crime, yet he does not even acknowledge that the statutes and the PIK instructions have been amended.
Although district courts are not required to use PIK instructions, it is strongly recommended that district courts do so because “[t]he pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions.” State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009). Absent particular facts requiring modification of the applicable pattern instruction, PIK instructions and recommendations should be followed. 289 Kan. at 67. This is particularly true in this case because the PIK Crim. 4th instructions that were given to the jury by the district court accurately reflect the current status of Kansas law.
The analysis in Graham, relied on the fact that “second-degree murder and voluntary manslaughter are intentional killings.... Where the homicide is intentional and there is some evidence the homicide was committed under the mitigating circumstances contained in K.S.A. 21–3403(a), the appropriate voluntary manslaughter instruction should be considered by the jury during its consideration of second-degree intentional murder.” 275 Kan. at 837. After the 2011 amendments to the Kansas Criminal Code, however, second-degree murder continues to involve an intentional killing while voluntary manslaughter now involves a knowing act that could reasonably result in a killing. Thus, the state of mind for the two crimes is no longer the same, and the Graham analysis no longer applies.
Under the prior version of the Kansas Criminal Code, voluntary manslaughter was defined as requiring an intentional act. In other words, the elements of intentional second-degree murder and intentional voluntary manslaughter were identical except for the mitigating circumstances. Accordingly, intentional second-degree murder and intentional voluntary manslaughter were required to be decided simultaneously by the jury in order to fairly determine if there were mitigating circumstances. In adopting the 2011 amendments to the Kansas Criminal Code, however, the Kansas Legislature changed voluntary manslaughter from an intentional crime to a knowing crime.
Heat of passion and imperfect self-defense are circumstances that may mitigate a certain degree or type of homicide. If heat of passion or imperfect self-defense reflected true principles of criminal liability, they would—like self-defense—be broadly applicable to other uses of force. For example, if this were true, criminal defendants would be deemed less culpable for aggravated battery if they used force in the subjective belief that they needed to defend themselves, even if that belief were objectively unreasonable. But Kansas has not elevated heat of passion or imperfect self-defense to that status.
Prior to the enactment of the 2011 revised Kansas Criminal Code, it was possible that heat of passion or imperfect self-defense might mitigate intentional second-degree murder to intentional voluntary manslaughter. At that time, the existence of those mitigators was the only difference between intentional second-degree murder and intentional voluntary manslaughter. Accordingly, those crimes had to be considered together to allow the jurors to fairly consider the existence of those mitigating circumstances. Under the current code, however, the Kansas Legislature has determined—at least tacitly—that heat of passion and imperfect self-defense no longer mitigate intentional killings, i.e., those in which an individual has a “conscious objective or desire” to kill. Thus, we conclude that the jurors in this case were appropriately instructed by the district court and did not need to consider the offenses of attempted second-degree murder and attempted voluntary manslaughter simultaneously.
Prosecutorial Misconduct
Next, Brown contends that the prosecutor committed misconduct while cross-examining him as well as during closing arguments. We review allegations of prosecutorial misconduct involving improper comments or questions using a two-step analysis. First, we determine whether the prosecutor's comments or questions were outside the wide latitude that the State is allowed in discussing the evidence. Second, if misconduct is found, we must then determine whether the improper comments or questions constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. See State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012) ; accord State v. Raskie, 293 Kan. 906, 913–14, 269 P.3d 1268 (2012).
In considering whether there has been plain error, we examine: “(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.” 293 Kan. at 914 ; State v. Inkelaar, 293 Kan. 414, 429, 264 P.3d 81 (2011). None of these three factors is individually controlling. Before the third factor can ever override the first two factors, however, we must find that the harmlessness tests of both K.S.A.2014 Supp. 60–261 and Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), have been met. State v. Bridges, 297 Kan. 989, Syl. ¶ 15, 306 P.3d 224 (2013).
Under the constitutional harmless error test, the party benefitting from any prosecutorial misconduct must prove beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record. Under the statutory harmless error standard, we must determine “ ‘if there is a reasonable probability the misconduct affected the outcome of the trial.’ [Citations omitted.]” State v. McCullough, 293 Kan. 970, 990, 270 P.3d 1142 (2012). In the present case, because defense counsel objected to each statement or argument complained about on appeal, there is no preservation issue to address.
Brown first argues that “[t]he prosecutor erroneously attacked [him] for failing to tell the detective during the investigation that he acted in self-defense.” On direct examination of Brown, his attorney asked him if he talked with Detective Smith when he initially went to the police station. Brown stated that he did but that “I really didn't comment too much. I just asked him did anyone die.” Then, during cross-examination, the prosecutor asked Brown what he told Detective Smith at the police station, and the following exchanged occurred:
“A. [Brown:] We didn't really have too much conversation, but he asked me for a DNA swab and I gave it to him. And I asked him did anyone die and I asked him what were my charges is what I asked him.
“Q. [Prosecutor:] Is that exactly what you told him?
“A. Yes, yes.
“Q. Nothing about this Mark guy pulling a gun, nothing about that?
“A. No.”
At that point, defense counsel asked to approach the bench. But defense counsel did not state an objection. Instead, he stated that the prosecutor knew Brown had invoked his rights and that that was the end of his conversation with Detective Smith. The prosecutor pointed out that defense counsel inquired on direct examination about the comments Brown made to Detective Smith, so the prosecutor was simply following up regarding what he specifically said. The district judge then told the prosecutor to move on, and he did so without inquiring further about the conversation.
During closing arguments, the prosecutor initially just mentioned the fact that Brown did not tell his sister, his girlfriend, or his girlfriend's mother that he had acted in self-defense. Before mentioning it a third time, the prosecutor stated that he had “no idea what [Brown's] version is going to be because he didn't tell a [soul]. So he was free to say whatever he wanted without subject to impeachment. Nobody could pull out any reports.” Although defense counsel indicated that he objected, it appears from the record that he did not state a ground for the objection and that the district court did not give a ruling on the objection.
Later in the argument, the prosecutor mentioned Brown's initial conversation with a law enforcement officer when a detective initially got a hold of him on his cell phone and Brown said he would come to the police station. Specifically, the prosecutor argued, “Did he tell Detective Scherer on the phone? Nope. Could he have? Absolutely, he's on the phone. Could have said anything he wanted. What does he say? Nothing.” However, no objection was asserted following this argument.
Moving to Brown's next contact with law enforcement—when he went to the police station—the prosecutor argued, “So when he comes down, he meets with Detective Smith and they converse, that's what he said on direct examination, they had a conversation but not much. Let me tell you not much. His conversation with Detective Smith was this—“ At that time, defense counsel asked to approach the bench, at which the following discussion was held:
“[Defense counsel]: I believe this is the fourth time Mr. Dunbar commented on my client's ... right to remain silent. I initially objected but didn't give grounds for the objection because I thought the Court knew what the grounds were, but he continues to make comments about what he did not say and he's not allowed to do that.
“[Prosecutor]: I have not, nor am I about to comment on what he didn't say. In fact, the last thing I said, and this is what he said—I'm allowed to comment on what he said.
“THE COURT: That being what, because I can't remember what Detective Smith said what he said.
“[Prosecutor]: Well, it wasn't from Detective Smith. It was from the defendant. He asked the question, the question was, did anyone die, that all he said.
“[Defense counsel]: Well, Judge, that's still the fourth or fifth time he's commented on it. At this time, I move for mistrial.
“[Prosecutor]: I certainly can comment on what he said. I have not commented on the absence of what he said. No. I said what he has said.
“[Defense counsel]: On at least two occasions you said he had an opportunity to say things he didn't say. You said you had an opportunity to go down to the police station when he gets down there to tell what happened, he commented, at least four or five times.
“[Prosecutor]: Judge, we're in closing arguments. I don't know if he's talking about things other than closing. You know, in this closing all I said is what he hadn't said, what he told the mother, what he hasn't told her or the sister or what he didn't tell Detective Scherer on the phone and the only thing I said regarding Detective Smith is what he told him.
“[Defense counsel]: I'm not commenting about what the comments about his mother, his child, those people. I'm talking about the police, Dan.
“THE COURT: I think we're getting dangerously close. I'm going to deny the motion for mistrial. Do not go there. Counsel knows that you do not comment on the fact of his silence and I think you've gotten very close when you talked about what he didn't say to Jesse Scherer, but at this point ... I'm going to deny the motion for mistrial but noted for the record.”
When the prosecutor continued, he only mentioned Brown's testimony regarding his conversation with the detective at the police station, stating, “As I was saying, when he came down to the police station and talked to Detective Smith, what he told Detective Smith was a question, ‘Did anyone die?’ So you consider what the defendant said on the stand, what he told you he didn't say to his family and his friends, you consider the testimony of all the other witnesses....” No objection was asserted to this argument.
The first thing to determine is whether the prosecutor's comments were outside the wide latitude that the State is allowed in discussing the evidence. See Burnett, 293 Kan. at 850. A prosecutor's comments can be improper if they shift the burden of proof to the defendant. See State v. Tosh, 278 Kan. 83, 92, 91 P.3d 1204 (2004). Here, we find that the prosecutor's comments did not attempt to shift the burden of proof to Brown. Instead, the prosecutor was attacking the credibility of Brown's testimony presented during the trial. The prosecution is allowed to argue against the theory presented by the defense during cross-examination as well as during closing argument without impermissibly shifting the burden of proof to the defendant. See State v. Todd, 299 Kan. 263, 286, 323 P.3d 829, cert. denied 135 S.Ct. 460 (2014).
Nevertheless, it is impermissible for a prosecutor to comment on a defendant's postarrest silence. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). A Doyle violation occurs when a prosecutor attempts to impeach a defendant's version of events on the basis that the defendant remained silent after being advised of his Miranda rights and, thus, did not offer the information at an earlier point in the criminal investigation. 426 U.S. at 617–19 ; State v. Killings, 301 Kan. 214, 229, 340 P.3d 1186 (2015). Under Doyle, the State may not impeach a defendant's alibi told for the first time at trial even after the defendant carried on a limited discussion with police but subsequently invoked the right to silence. State v. Stafford, 296 Kan. 25, 57, 290 P.3d 562 (2012) (citing State v. Clark, 223 Kan. 83, 87–89, 574 P.2d 174 [1977] ).
The State argues that its closing argument was proper because
“Brown had just testified that he spoke with Detective Smith after he turned himself into law enforcement. The prosecutor was not making an improper reference to Brown's right to remain silent, but asking a follow up question about the nature of the conversation between Brown and Detective Smith, which is proper on cross examination as it did not deal with post-invocation silence.”
Although Doyle protects defendants from prosecutorial comment on postarrest silence, courts have allowed a prosecutor to impeach “a defendant who argues he or she cooperated with an investigation, in other words, one who ‘opens the door.’ “ State v. Tully, 293 Kan. 176, 187, 262 P.3d 314 (2011). “ ‘When a defendant attempts to convince a jury that he was of a cooperative spirit, Doyle does not tie the hands of prosecutors who attempt to rebut this presentation by pointing to a lack of cooperation.’ “ United States v. O'Keefe, 461 F.3d 1338, 1348 (11th Cir.2006) (quoting United States v. Reveles, 190 F.3d 678, 685 [5th Cir.1999] ). A prosecutor, however, cannot cross the “fine line” between impeaching a witness and inviting the jury to infer guilt from silence. Tully, 293 Kan. at 188 (citing United States v. Gant, 17 F.3d 935, 941–43 [7th Cir.1994] ); see State v. Hulsey, No. 109,095, 2014 WL 4627486, at *17 (Kan.App.2014) (unpublished opinion) petition for rev. filed October 14, 2014.
Certainly, the prosecutor's comments during closing argument about Brown not telling his sister, girlfriend, or girlfriend's mother that he acted in self-defense were not improper because none of the conversations occurred following arrest nor were they with law enforcement officers. See Tully, 293 Kan. at 188. But the prosecutor's statement that “[Brown] was free to say whatever he wanted without [being] subject to impeachment” because “[n]obody could pull out any reports” presents a much closer question. As for the prosecutor's other comment during closing argument—the one to which defense counsel objected—the prosecutor had not said anything about Brown failing to tell Detective Smith that he acted in self-defense. And after the district court overruled defense counsel's motion for mistrial, the prosecutor did not take it any further. Therefore, we do not find that the prosecutor's comments rose to the level of prosecutorial misconduct.
Even if one or more of the comments were improper, we still must decide whether such comments prejudiced the jury against the defendant and denied him the right to a fair trial. See Burnett, 293 Kan. at 850. In doing so, we must consider whether the improper statements were gross and flagrant or whether they showed ill will on the prosecutor's part. Inkelaar, 293 Kan. at 429. An improper statement is gross and flagrant if it was repeated or emphasized. Similarly, an improper statement constitutes ill will if it was deliberate and repeated or indifferent to a court ruling. 293 Kan. at 429–30. Nevertheless, even if these factors were present in this case, we find that the evidence was of such a direct and overwhelming nature that any misconduct would likely have had little weight in the minds of jurors. Raskie, 293 Kan. at 914.
The State has shown beyond a reasonable doubt that any improper questions or statements regarding Brown's silence did not impact the outcome of the trial in light of the entire record. See McCullough, 293 Kan. at 990. The testimony of Herrera, Webster, and other witnesses presented by the State overwhelmingly supported Brown's conviction. In addition, there was testimony from Brown and his girlfriend that did not tell anyone he had contact with after the shooting—and prior to his arrest—that he acted in self-defense. Doyle does not prohibit a prosecutor from impeaching a defendant at trial based on his or her pre arrest silence. See Tully, 293 Kan. at 188 ; State v. Marshall, 50 Kan.App.2d 838, 846, 334 P.3d 866 (2014). The State argues that even absent the prosecutor's comments, the jury could have relied on testimony from Brown and his girlfriend that he did not tell anyone he acted in self-defense. We agree and find nothing that rises to the level of reversible prosecutorial misconduct under the circumstances presented.
Affirmed.