Opinion
No. 108,115.
2013-11-1
STATE of Kansas, Appellee, v. Kenneth J. FREDERICK, II, Appellant.
Appeal from Marion District Court; Michael F. Powers, Judge. Sam S. Kepfield, of Hutchinson, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Appeal from Marion District Court; Michael F. Powers, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
LEBEN, J.
Kenneth Frederick appeals his conviction for aggravated criminal sodomy, aggravated kidnapping, criminal threat, and two counts of rape. He has raised several issues, but we find no merit in his appeal:
• Frederick argues that the evidence didn't support conviction beyond a reasonable doubt. But when a jury has found the defendant guilty, we must look at the evidence in the light most favorable to the State, and the victim's testimony provided evidence that Frederick committed the crimes for which he was convicted.
• Frederick argues that a codefendant's prior convictions for sexual offenses should not have been admitted, but the offenses were admissible under K.S.A.2009 Supp. 60–455(d) as long as the district court applied a balancing test to determine whether the evidentiary value of that evidence outweighed any potential for undue prejudice. Frederick has not shown that the district court failed to do so.
• Frederick claims that his trial attorney provided inadequate representation by seeking to consolidate Frederick's trial with that of two codefendants. Since this claim is being made for the first time on appeal, there is no record before us from which we can determine the reasoning of Frederick's trial attorney. In the absence of such a record and because the issue was not raised to the trial court, we decline to address it.
• Frederick claims that the prosecutor committed misconduct by commenting during opening arguments that a codefendant never gave a statement to the police. Assuming that was a violation of Frederick's rights, we find no reversible error—the comment wasn't repeated and was unlikely to affect the jury's later verdict.
• Frederick notes that the State violated a pretrial order prohibiting reference to a state agency's procedure for investigating child abuse. But the prosecutor's question about agency procedures was objected to, and the district court sustained the objection. The mere mention of this subject in a question that wasn't answered was unlikely to affect the jury's later verdict.
We therefore affirm the district court's judgment.
Factual and Procedural Background
M.B., then 14 years old, lived in Peabody, Kansas, with her mother, Edna, and the mother's boyfriend, Jimmie Thouvenell. During the summer of 2010, M.B. was doing some odd jobs with Terry Bowen, Kenneth Frederick, and Lora Gay.
M.B. provided basically the following summary of the events that transpired. While they were having lunch at Bowen's house, she was sitting on the couch watching television when she noticed that Bowen had locked the front door and closed the curtains and blinds. Gay, Bowen, and Frederick then grabbed her, took her to Bowen's bedroom, and threw her on the bed. Bowen removed M.B.'s pants and underwear, and he then raped her for about 4 minutes. Bowen and Frederick then switched positions, and Frederick raped her for about 3 minutes. During this time, Gay held M.B.'s arms pinned to the bed, called M.B. names, and told M.B. to stop screaming; at one point, Gay hit M .B. on the top of her head. Frederick and Bowen switched positions a second time, after which Bowen put his head between her legs and licked at her vaginal area. At this point, M.B. heard a knock on the door, and Gay, Bowen, and Frederick left the room. M.B. dressed, went to the living room, and sat on the couch; she then unlocked the front door and let Thouvenell into the house.
M.B. said she didn't tell Thouvenell what had happened because she was scared. After he came into the house, M.B. said that Frederick called her into another room and told her that if she told anyone what had happened, they would kill her; she also said that Gay whispered that they would come after her again and she wouldn't know when or where it would happen. M.B. said that she initially was too scared to tell her family what had happened.
M.B. eventually told her mother and Thouvenell what had happened, and she then reported the assault to local police. A sexual-assault exam was done between 2 and 3 weeks after the events. The State soon brought criminal charges against Frederick, Bowen, and Gay.
All three defendants were tried together in June 2011. The State presented testimony from M.B., Thouvenell, and several other witnesses, as well as audiotapes of police interrogations of Frederick and Gay. The State also introduced evidence that Bowen had been convicted for sexual battery against a 12–year–old victim and of aggravated indecent solicitation against an 11–year–old victim. The jury acquitted Frederick of battery but convicted him of aggravated criminal sodomy, aggravated kidnapping, criminal threat, and two counts of rape. The district court sentenced Frederick to a controlling prison term of 294 months.
Frederick has now appealed his convictions to the Court of Appeals. The convictions against codefendant Gay were affirmed on appeal earlier this year. State v. Gay, No. 107,433, 2013 WL 517828 (Kan.App.2013) (unpublished opinion). An appeal by codefendant Bowen is still pending.
Analysis
I. The Evidence Was Sufficient to Convict Frederick.
Frederick's first argument is that the evidence wasn't sufficient to find him guilty. But because the jury found him guilty beyond a reasonable doubt—and the jury, not this appellate court, serves as the fact-finder—we review the evidence on appeal by construing it in the light most favorable to the State, in whose favor the jury ruled. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). We must determine whether rational jurors could have found Frederick guilty of these crimes beyond a reasonable doubt. 294 Kan. at 374–75, 277 P.3d 1091.
Before discussing the evidence, we should note that for two of the offenses—aggravated criminal sodomy and one count of rape—Frederick was charged and convicted on the theory that he had aided another person, Bowen, in committing these offenses. For the other offenses, Frederick was charged and convicted for his own role in each offense.
Frederick's argument about the sufficiency of the evidence is made with a broad brush: He doesn't attempt to show how the State failed to prove any specific element of a specific charge but instead argues about inconsistencies in M.B.'s statements over time and weaknesses involving specific evidence. Frederick emphasizes the lack of physical evidence to corroborate M.B.'s allegations and that a doctor who reviewed the medical reports found no specific evidence of trauma.
But even without specific medical evidence (and there was some evidence from a nurse's exam that was consistent with M.B.'s claims), her own testimony supported each of the charges for which Frederick was convicted. There was also supporting testimony from Thouvenell, who said that M.B. had been a normal, outgoing teenager before these events but that he had noticed her become quieter and stay in her room all the time—even before she admitted that anything had taken place.
We are not allowed to reweigh the evidence or make specific credibility determinations on appeal; that's the job of the jury. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). We would go beyond our role and take over the jury's role if we were to find the evidence insufficient to convict in this case. The evidence was sufficient for a rational fact-finder to convict Frederick on each of the charges for which he was convicted.
II. Frederick Has Not Shown Any Error in Admitting Bowen's Prior Convictions as Propensity Evidence.
Frederick claims that the district court should not have admitted evidence of Bowen's prior convictions. The State contends that any error was invited error since Frederick asked to have his trial consolidated with Bowen's, even with knowledge of Bowen's earlier convictions. The State also contends that Frederick should not be heard to complain on this issue since the evidence of Bowen's convictions was presented only with respect to Bowen, and the jury was specifically told to disregard that evidence when considering whether Frederick had committed any of the offenses.
In Gay's appeal, our court ruled that any error here was invited error since Gay was told the risks of a joint trial but still asked to have her case consolidated for trial with Bowen's. Gay, 2013 WL 517828, at *2. The same is true in Frederick's case.
But we need not spend our time considering questions of invited error and Frederick's standing to raise the issue because the Kansas Supreme Court effectively ruled against Frederick's position on the merits of the issue in State v. Prine, 297 Kan. 460, 303 P.3d 662 (2013). In Prine, the court held that a 2009 legislative amendment to K.S.A. 60–455 had made past convictions admissible “to prove propensity of a criminal defendant to commit the charged crime” in a sex-crime prosecution so long as the evidence of other sexual misconduct is relevant to propensity or “ ‘any matter’ “ and the district court determines that “the probative value of the evidence outweighs its potential for undue prejudice.” 297 Kan. 460, Syl. ¶ 3, 303 P.3d 662.
The district court apparently held a hearing on the State's motion to introduce evidence of Bowen's convictions, and the district court apparently ruled in the State's favor at that hearing. We say apparently because our appellate record does not contain the State's motion, the hearing transcript, or the district court's order. Frederick, as the appellant, has the burden to provide a record that shows the claimed error; without such a record, an appellate court presumes that the trial court's actions were proper. State v. Sappington, 285 Kan. 176, 192, 169 P.3d 1107 (2007).
So without a better record, we cannot second-guess the district court's weighing of the probative value of the evidence of Bowen's convictions against the possibility for undue prejudice. Moreover, the chance of undue prejudice against Frederick was substantially lessened because the district court instructed the jury to consider the prior-conviction evidence only with respect to Bowen and not to consider it when determining whether Frederick was guilty of any offense. Frederick has failed to show any error in the admission of Bowen's earlier convictions into evidence.
III. We Decline to Address Frederick's Claim That His Counsel Provided Inadequate Representation Because Frederick Did Not Raise This Claim to the Trial Court.
In Frederick's next argument, he continues to express his concern that Bowen's past convictions were admitted at trial. Frederick argues that his trial attorney provided inadequate representation when the attorney agreed to consolidate Frederick's case for trial with Bowen's.
A hearing was held in the district court on Frederick's motion to consolidate his case with those of Bowen and Gay. Frederick's attorney informed the trial court that Frederick wanted the cases consolidated, and Frederick personally acknowledged, in response to questions from his attorney, that he understood he had a right to a separate trial, that he personally wanted the trials consolidated, and that he understood that Bowen's prior criminal history might be presented in evidence. Frederick's attorney told the court that there was “some strategy behind” the request for a consolidated trial, and attorneys for Bowen and Gay made similar representations when the court considered consolidation motions from their clients; the specific defense strategy that would benefit from consolidation was not revealed in the hearing since the hearing took place before trial with the prosecutor present and participating.
With that background, and recognizing that Frederick did not make this claim about inadequate representation before the district court, we conclude that we should not address it. Generally, an appellate court doesn't consider an allegation that an attorney's representation was inadequate when the claim is first raised on appeal. State v. Gleason, 277 Kan. 624, 88 P.3d 218, Syl. 5, 277 Kan. 624, 88 P.3d 218 (2004). When the claim is not first raised in the district court, we have three choices: (1) we can decline to address the issue, leaving it as one that may be raised later in the district court in a habeas corpus action under K.S.A. 60–1507; (2) we can remand the case for an evidentiary hearing, known as a Van Cleave hearing, at which the factual background can be determined; or (3) we can rule on the merits of the claim in the “extremely rare” case in which sufficient facts to assess the attorney's performance are already in our record. Rowland v. State, 289 Kan. 1076, 1084–85, 219 P.3d 1212 (2009); see State v. Van Cleave, 239 Kan. 117, 119–21, 716 P.2d 580 (1986).
This is not the “extremely rare” case in which our record is sufficient to evaluate the claim. We know from our record that the attorneys for all three defendants said that a consolidated trial served strategic purposes for their clients, but we don't know what those trial-strategy considerations may have been.
Nor is this an appropriate case for a Van Cleave remand in this direct appeal. The Kansas Supreme Court has said that such a remand should be ordered only when appellant's counsel has done “at least some investigation into the claimed ineffectiveness” beyond mere reading of the trial transcript. State v. Levy, 292 Kan. 379, 389, 253 P.3d 341 (2011). Nothing beyond the trial record has been presented in this appeal, and we have no way to consider the trial strategy employed by Frederick's counsel beyond speculation. We also note that Frederick has not asked for remand for a Van Cleave hearing.
We therefore conclude that we should not address Frederick's claim that his attorney provided inadequate representation in this direct appeal. If Frederick wishes to pursue it, he will have to raise it in the district court under K.S.A. 60–1507.
IV. The Prosecutor's Brief Comment in Opening Statement on Bowen's Postarrest Silence Does Not Give Cause to Reverse the Jury's Verdict.
In opening statement, the prosecutor referred briefly to “the fact that Mr. Bowen never provided a statement” to police. Frederick contends that this violated Doyle v. Ohio, 426 U.S. 610, 618–19, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), under which it is generally impermissible for a prosecutor to present evidence at trial of a defendant's silence after Miranda warnings have been given. Frederick argues on appeal that the mention of Bowen's silence constituted prosecutorial misconduct so significant that the jury verdicts against him must be set aside and the case retried.
A Doyle violation can justify a retrial order, though the appellate court must also apply the harmless-error test. State v. Tully, 293 Kan. 176, 262 P.3d 314 (2011). Because the impermissible reference to post-Miranda silence is a constitutional violation, the constitutional harmless-error test applies: the error cannot be considered harmless unless the State shows beyond a reasonable doubt that the error didn't affect the outcome of the trial. 293 Kan. at 193–94, 262 P.3d 314.
We first should look at the prosecutor's statement in context. It came during opening statement, after the prosecutor had described in detail the statements Gay and Frederick had given to investigators—statements that would be admitted into evidence in the trial. The prosecutor then made a brief reference that there was no similar statement from Bowen:
“[THE PROSECUTOR:] Who else are you going to hear from? I've mentioned [M.B.], I've mentioned Mr. Bowen—again, I don't know that you'll hear from them, and that's their right, don't ever get me wrong, that is not [ sic ] their right.
“I've told you about statements given by Ms. Gay and Mr. Frederick, the fact that Mr. Bowen never provided a statement, perfectly within the right
“[BOWEN'S COUNSEL]: I object, Your Honor.
“THE COURT: What's the objection, [counsel?]
“[BOWEN'S COUNSEL]: I think the comment at this point is inappropriate, should never have come up here.
“THE COURT: I think [the prosecutor] is appropriately explaining the rights of the defendants. I don't think he should dwell on this topic
“[THE PROSECUTOR]: I won't, that was
“THE COURT:—but I'll overrule the objection.” (Emphasis added.)
Frederick has not cited any other statement by the prosecutor during the trial commenting further on the fact that Bowen never gave a statement to police.
We are not sure that this brief comment constitutes a Doyle violation. First, Doyle is not violated unless the referenced silence of the defendant took place after Miranda warnings have been given, and generally the record must show that Miranda warnings had been given. See Tully, 293 Kan. at 189–90, 262 P.3d 314;State v. Stotts, No. 101,828, 2011 WL 6382737, at *4–5 (Kan.App.2011) (unpublished opinion). The trial transcript does not show that Miranda warnings were given to Bowen, and Frederick's brief provides no citation to any other place in the record where the giving of Miranda warnings to Bowen is mentioned. Second, it's not clear that a brief statement in opening argument about a defendant's silence that isn't used to impeach the defendant's credibility violates Doyle. See State v. Reed, 40 Kan.App.2d 269, 275–77, 191 P.3d 341 (2008) (finding that a single statement in opening argument “[came] close to being a Doyle violation” but ultimately finding no violation because statement wasn't made to impeach defendant's credibility or to show an indication of guilt by silence), rev. denied 290 Kan. 1102 (2010).
But even if we were to find that the comment here violated Doyle, we are convinced beyond a reasonable doubt that it had no impact on the trial outcome. As the State notes in its brief, the comment was about Bowen's silence, not Frederick's, and the jury was told to judge Frederick's guilt separately from that of the other defendants. Additionally, as we have noted, no further reference was made in the trial to Bowen's failure to make a statement to investigators, and the jury heard several days of detailed testimony from many witnesses. Finally, the prosecutor's statement came only after he had already gone through—in detail—what the other defendants had told investigators, which was presented to the jury through evidence; the prosecutor's statement appears merely to have been an explanation that there was no comparable evidence to be presented from Bowen, not an attempt to impeach Bowen's credibility or argue guilt based on his silence. We find any error regarding the prosecutor's reference to Bowen's silence harmless under the constitutional harmless-error test.
V. The State's Violation of a Pretrial Order Does Not Warrant a New Trial.
One of the witnesses presented by the State at trial was Wilma Mueller, a licensed social worker employed by the Kansas Department of Social and Rehabilitation Services. She investigates alleged acts of sexual abuse against minors, and she had interviewed M.B. about her allegations. The State called Mueller as a witness to say what M.B. had told Mueller about the events.
At a pretrial hearing held in advance of trial, defense counsel asked to exclude from evidence anything about the procedures of the Department of Social and Rehabilitation Services for making findings about whether a child has been abused as well as any findings made about M.B. The prosecutor who attended that hearing said the State had no intention to present such testimony, and the district court granted the motion excluding it.
But a different prosecutor, who had not been present at the pretrial conference, presented Mueller as a trial witness, and she asked whether one of Mueller's jobs was to determine whether an abuse allegation had been substantiated:
“[THE PROSECUTOR:] Would you investigate both cases of physical abuse and sexual abuse and neglect?
“[MUELLER:] Yes.
“[THE PROSECUTOR:] After you would do one of those cases would it then be your job to either substantiate or unsubstantiate findings?
“[FREDERICK'S COUNSEL]: Objection.
“[BOWEN'S COUNSEL]: Your honor, I object. We have an order in limine on that topic.
“[THE PROSECUTOR]: Obviously, I did not know.
“THE COURT: Do you wish to withdraw the question, counsel?
“[THE PROSECUTOR]: Absolutely.
“THE COURT: Thank you. The objection is sustained. The question is withdrawn. Go ahead.
“[THE PROSECUTOR:] Would you then sometimes proceed with a case and then provide services for those families?
“[MUELLER:] Yes.” (Emphasis added.)
The State concedes that its prosecutor violated the pretrial order by asking this question, but the State contends that the error was harmless.
Once misconduct is found, the analysis shifts to whether the improper comments prejudiced the jury and denied the defendant a fair trial. State v. Bridges, 297 Kan. ––––, 306 P.3d 244, 260 (2013). At this stage of the analysis, an appellate court generally considers whether the misconduct was gross and flagrant, whether it was motivated by ill will, and whether the evidence was of such a direct and overwhelming nature that the misconduct was unlikely to have had much influence on the jury. 306 P.3d at 260. In addition, the appellate court applies the appropriate harmless-error test. 306 P.3d at 260.
In this case, the error doesn't appear to have been motivated by ill will; rather, it appears to have been an error of inadvertence. To be sure, the prosecutor who attended the pretrial conference should have alerted all other prosecutors who would present evidence of the pretrial rulings that had been made. But we find neither ill will nor gross and flagrant misconduct. The question that was asked was not phrased in a provocative way, and the prosecutor withdrew it immediately after learning of the pretrial order. As to the evidence, there were credibility determinations to be made in this case, and we cannot call the evidence overwhelming. Even so, it seems highly unlikely that the jury would—based on this single question—first make the assumption that Mueller had fully investigated the case, next conclude that Mueller had “substantiated” the abuse allegation, and finally conclude that they should give deference to Mueller's conclusions. After all, the jury heard nothing about what Mueller did to further investigate the case, and the jury itself heard several days of testimony from more than a dozen witnesses.
There may be some question about the harmless-error standard to be applied here. Frederick makes no argument that the pretrial ruling was based on any constitutional rules, and the traditional harmless-error test when constitutional principles are not at stake is whether there was a reasonable probability that the error affected the outcome of the trial. See State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012); Gay, 2013 WL 517828, at *4. Appellate courts ordinarily do not find reversible error when the trial judge sustains the defendant's objection and directs the jury to disregard the improper material. See State v. Angelo, 287 Kan. 262, 285, 197 P.3d 337 (2008). Here, the district court sustained the objection, and the offending question was immediately withdrawn. The State has shown that there is no reasonable probability that the brief mention of whether a state agency attempts to substantiate child-abuse allegations had any impact on this jury's verdict. Under the constitutional harmless-error rule, the State must show beyond a reasonable doubt that the error did not affect the trial's outcome. See State v. Hart, 297 Kan. 494, 301 P.3d 1279, 1289 (2013) (noting that the court has applied both the statutory and the constitutional harmless-error tests in prosecutorial-misconduct cases); State v. McCullough, 293 Kan. 970, 990–91, 270 P.3d 1142 (2012) (stating that the court's “cases require that both standards be satisfied in the prosecutorial misconduct context”); Ward, 292 Kan. 541, 256 P.3d 801, Syl.¶ 6. Even if we were to apply that test, we would find the prosecutor's misconduct in this instance harmless beyond a reasonable doubt. We therefore find no cause to set aside Frederick's convictions based upon the prosecutor's violation of the pretrial order.
VI. The District Court Did Not Commit Error When It Answered a Jury Question During Deliberations.
Frederick claims that the district court erred when it answered a jury question about the aggravated-kidnapping charge. We must consider the trial court's original instruction about this charge, the jury's question, and the trial court's response.
The court initially told the jury that it must make four findings to find Frederick guilty of aggravated kidnapping:
“One, that defendant Frederick took or confined [MB.] by force; two, that it was done with the intent to hold such person to inflict bodily injury; three, that bodily harm was inflicted upon [MB.]; and four, that this act occurred on [the dates and at the location alleged].”
Frederick does not suggest any error in this initial instruction.
During its deliberations, the jury asked the court for a “clarification of kidnapping and as the word confinement relates [to kidnapping].” The district court replied: “The taking or confinement requires no particular distance or removal, nor any particular time or place of confinement.” The court's explanation was based on language in a Kansas Supreme Court case, State v. Buggs, 219 Kan. 203, 214, 547 P.2d 720 (1976), as summarized by the committee that writes pattern jury instructions. See PIK Crim. 4th 54.210, Comment.
Frederick asked the district court to provide some additional language in its response, also found in the comments to the pattern jury instructions and also based on Buggs: “The word ‘facilitate’ means something more than just to make more convenient. ‘To facilitate’ must have some significant bearing on making the commission of the crime easier.” PIK Crim. 4th 54.210, Comment. The district court refused to add those two sentences to its response to the jury's question, and Frederick objected.
On appeal, since Frederick objected to the instruction, we look to see whether the instruction fairly stated the law as applied to the facts of the case or whether it may reasonably have misled the jury. State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009). We also note that when it receives a jury question, the district court must provide a meaningful response. See K.S.A. 22–3420(3); State v. Boyd, 257 Kan. 82, Syl. ¶ 2, 891 P.2d 358 (1995); State v. Jones, 41 Kan.App.2d 714, 722, 205 P.3d 779 (2009), rev. denied 290 Kan. 1099(2010).
The language Frederick asked the district court to include in its response provided further information about what the word facilitate means. But neither the initial jury instruction on aggravated kidnapping nor the jury's question mentioned facilitation. So there was no reason to provide a definition of “facilitate” to the jury.
The reason the word facilitate came up in Buggs is that Kansas law provides several bases upon which aggravated kidnapping may be charged. Kansas law at the time of Frederick's offense provided that a kidnapping could be for one of several stated purposes, one of which was “to inflict bodily injury” and another of which was “to facilitate flight or the commission of any crime.” K.S.A. 21–3420(b), (c). A kidnapping becomes an aggravated kidnapping if bodily harm is inflicted on the victim. K.S.A. 21–3421.
In Frederick's case, the State charged that Frederick took or confined M.B. with the intent to hold her to inflict bodily injury and that bodily harm was then inflicted upon her. In Buggs, however, the discussion of “facilitate” was with regard to the separate part of the statute that makes it a kidnapping to take or confine a person with the intent “to facilitate ... the commission of any crime.” In that context, the court held that the robbery gone wrong in Buggs (during which one of the robbers also raped one of the victims) was facilitated when the victims were forced “to the relative seclusion of the inside of the store,” which reduced the risk of detection both of the robbery and of the rape. 219 Kan. at 216, 547 P.2d 720. Since that part of the kidnapping statute wasn't at issue in Frederick's case and the jury's instruction didn't talk about facilitation at all, there was no cause here to provide the jury with a definition of “facilitate.” See State v. Burden, 275 Kan. 934, 943–44, 69 P.3d 1120 (2003) (finding that the Buggs facilitation test did not apply to a charge of kidnapping with intent to inflict bodily harm). We conclude that the trial court's answer to the jury's question fairly stated the law, and the district court's refusal to add language defining “facilitate” was not error.
VII. Cumulative Error Does Not Warrant Reversal of the Jury's Verdicts.
Frederick's final argument is that even if no single error warrants setting aside Frederick's convictions and ordering a new trial, the cumulative effect of all trial errors was so great that we should order a new trial. As we have already discussed, at least with regard to the allegations made by Frederick on appeal, it's not clear that there were any errors made in his trial. For discussion purposes, however, we will assume for this section of the opinion that there was a Doyle violation in the brief mention by the prosecutor of Bowen's silence and that there was a trial error in the prosecutor's violation of a pretrial order not to mention state-agency procedures to investigate abuse cases. But even if those were errors, and even if we apply the constitutional harmless-error standard, we find these errors harmless beyond a reasonable doubt. The reference to a defendant's silence was with regard to a codefendant, not Frederick, was brief, and didn't directly target credibility or guilt. The question about agency procedures was objected to, and the objection was sustained. Neither subject was mentioned again, and the jury heard more than a dozen witnesses testify over 3 full days of evidence and extensive closing arguments. There is no cumulative error here. See Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011).
The district court's judgment is affirmed.