Opinion
111,491.
04-24-2015
STATE of Kansas, Appellee, v. Jennifer ROLLINS, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jennifer Rollins appeals her conviction for theft after two prior convictions, a severity level 9, nonperson felony, in violation of K . S.A.2014 Supp. 21–5801(a)(1), (b)(6). Rollins argues the prosecutor's argument that she could be convicted of theft for stealing items not listed in the complaint violated her right to notice under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. She also argues the trial court erred in failing to give a curative instruction when the prosecutor suggested the jury could convict her based on the police officer's decision to arrest her for shoplifting. Rollins also argues the trial court erred in imposing attorney fees without making the proper findings on the record. We find there was a trial error but it was harmless; and it was inappropriate to impose attorney fees without sufficient findings.
On February 16, 2012, Rollins entered the Walmart in Wichita with shopping bags in the top carrier section of her cart. Rollins later loaded an unassembled storage closet in the undercarriage of the cart. She walked to the other side of the store, stood for a few moments, and then attempted to leave the store without paying for the items she had in her cart. Rollins claimed she was feeling shaky due to a low-blood sugar level and was leaving the store to get something to eat but had forgotten about the items in her cart. On December 6, 2012, the State charged Rollins with theft after a prior conviction by specifically exerting unauthorized control over a “storage clothes closet” having a value of less than $1,000. The affidavit supporting the complaint only mentioned theft of the storage closet.
Frank Mwanga, an asset protection associate for Walmart, testified to his involvement leading up to Rollins' arrest. He identified pictures of the storage closet that Rollins had in the bottom part of her shopping cart. Mwanga stopped Rollins right before she left the store. He and his boss, Staci Edwards, asked Rollins to come to the office and explain her activities in the store. Rollins admitted to Mwanga that she did not have permission from anyone in the store to take the storage closet without paying. Mwanga asked Rollins if she had any other Walmart property she had not paid for and Rollins handed Mwanga three packages of construction nails out of a bag. Mwanga testified he had not seen Rollins put the nails in the bag in the store; but she had not paid for the nails, and the nails belonged to Walmart. Mwanga said he heard Rollins tell the police officer she had attempted to steal the storage closet and the packages of nails. Walmart created a receipt for the stolen merchandise, and it included both the storage closet and the three packages of nails.
On cross-examination, defense counsel repeatedly questioned Mwanga about the bag containing the nails. Defense counsel questioned Mwanga about his testimony at the preliminary hearing that Rollins had nothing in the bag except two packages of nails and now it was three packages and that she also had makeup, fingernail polish, and other things in the bag. Defense counsel also questioned Mwanga about the store's security video and why the video was not available.
Officer Amanda Little of the Wichita Police Department had responded to Walmart's shoplifting call. Officer Little testified that Mwanga told her Rollins had shoplifted a storage closet. Rollins told Officer Little she did not feel well. Rollins declined Officer's Little's offer to call an ambulance. Rollins told Officer Little she “did not mean to take the merchandise.” Officer Little testified that Rollins looked fine, understood the situation, and responded appropriately and timely. Officer Little testified Rollins told her she had forgotten about the storage closet when she began to feel ill and she was leaving the store to get a snack. Officer Little testified she only knew about the storage closet and nothing else was in her report.
Edwards, the asset protection manager on duty during the incident, testified Rollins had two plastic bags in her cart, one from Walmart and the other from a different store (either Michaels or Lowes). Edwards followed Rollins on the store's video cameras. She saw a box in the lower rack of Rollins' cart and a bag in the top of the cart. Edwards testified Rollins agreed with Mwanga that she did not have permission to take the storage closet without paying for it. Edwards also confirmed that when Mwanga asked Rollins if she had taken any other Walmart property, Rollins removed three packages of wood screws from a bag and gave them to Mwanga. Edwards stated Mwanga had not witnessed Rollins put the screws in the bag but Rollins offered them when asked if she had any other Walmart property she had not paid for.
Edwards testified Rollins appeared to understand the conversation, she responded appropriately, and she was not shaky. Edwards testified it is not company policy to turn over the store security video. Instead, they use the eyewitness testimony from their asset protection officers when available. Edwards gave Rollins some crackers to eat because Rollins said she had not eaten anything and was getting shaky. Rollins later gave Edwards permission to allow Rollins' mother, Elizabeth Angleton, to pick up Rollins' purse and the remaining bags. Angleton testified the plastic bags were from Lowe's. She said in one bag there were metal wire shelves and brackets.
The jury convicted Rollins of theft as charged in the complaint. Based on a criminal history classification of I, the trial court sentenced Rollins to a presumptive underlying sentence of 6 months and granted her 12 months' probation. The court also ordered Rollins to pay costs and fees. Rollins appeals.
Rollins first argues the trial court violated her due process right to notice of alleged charges by denying defense counsel's objection to comments about theft of the nails. Rollins argues the complaint only charged her with theft of the storage closet, yet the prosecution presented evidence of theft of both the storage closet and the nails.
Rollins contends the lack of information in the complaint violated her procedural due process right to notice. She relies on State v. Wade, 284 Kan. 527, 541–42, 161 P.3d 704 (2007), where the court stated:
“Obviously, trial by ambush does not comport with due process. Therefore, where a jury is instructed to convict a defendant in a manner or upon a theory which was not identified in the charging document, an analysis of whether the defendant had sufficient notice to pass due process is in order.”
Only a portion of the preliminary hearing transcript is included in the appellate record. However, it appears that at the preliminary hearing the State limited its presentation of the evidence to Rollins' theft of the storage closet. It was actually defense counsel who questioned Mwanga about the nails and how Walmart had a stolen property receipt listing both the storage closet and nails. Also, there was no mention of the stolen nails by the State in the prosecutor's opening argument at trial. However, the State presented evidence of how the Walmart employees discovered the nails through its direct examination of Mwanga, Edwards, and Officer Little.
During closing argument, the State discussed the evidence, the elements of the crime, and then stressed Rollins' intent to deprive Walmart of property as the element at most in question. The State indicated, “Of the elements, this is the element that's most in question. Did “[Rollins] intend to permanently deprive Walmart of this property, that being the [storage closet] and the packages of nails.” Defense counsel objected stating, “The nails are not charged.” The trial court overruled defense counsel's objection stating, “It's part of the evidence as far as the testimony that's been given, and the instructions are just property.”
The State continued to discuss the evidence, describing how Rollins had admitted she did not have permission to take the storage closet out of the store and when asked if she had any other stolen Walmart property, she had produced the three bags of nails. The State then discussed Rollins' explanation of needing food and the fact she had put the storage closet on the lower rack of the cart and had produced the nails when asked demonstrated her plan to leave without paying for all the items.
Defense counsel's closing statement stressed the absence of video evidence and how it had been passively destroyed. Defense counsel discussed the inconsistencies in the evidence as to what Rollins admitted to the Walmart staff and later to the police and the location of items in the cart. Last, defense counsel also focused on two facts: (1) neither Walmart nor the police took any steps to deny Rollins' medical condition, and (2) the inconsistency of whether Walmart personnel searched Rollins' bags to discover the contents.
During rebuttal, the State emphasized the evidence that when asked if she had any additional Walmart property, Rollins removed the three packages of construction nails from her bag that were unknown to Mwanga and Edwards. The State told the jury, “These are things that all go to prove that there is no unreasonable doubt here, ladies and gentlemen.”
“In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right ‘to be informed of the nature and cause of the accusation.’ Amend. VI.” United States v. Cruikshank, 92 U.S. 542, 557–58, 23 L.Ed. 588 (1875). As provided in the Fourteenth Amendment, due process requires that a person be afforded a right to be heard in a meaningful way before being deprived of “life, liberty, or property.” U.S. Const, amend. XIV, § 1 ; Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ [Citation omitted.]”).
“ ‘It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, “includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species,—it must descend to particulars.” ‘ “ Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (quoting Cruikshank, 92 U .S. at 558 ).
Unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate. K.S.A. 22–2301. The complaint shall be a plain and concise written statement of the essential facts constituting the crime charged. K.S.A. 22–3201(b). The charging document must set out the specific offense alleged against the defendant to inform the defendant of the nature of the accusation against him or her and to prevent a conviction on the basis of facts that were not contemplated in the initial charges. State v. Hart, 297 Kan. 494, 508, 301 P.3d 1279 (2013).
Use of the term “property” in the elements jury instruction broadly covered an item not listed in the complaint, i.e., the nails. Property covers the laundry list of specific items of property that could be listed in the theft complaint. See PIK Crim. 4th 58.010; State v. Dicks, No. 108,293, 2013 WL 3970188, at *3 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. –––– (February 12, 2014). No party may assign as error the failure to give a jury instruction unless the party objects before the jury retires to consider its verdict. Otherwise, the appellate court applies a clearly erroneous standard of review. See K.S.A.2014 Supp. 22–3414(3) ; State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001). “An instruction is clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict had the jury been properly instructed.” State v. Graham, 275 Kan. 831, 833, 69 P.3d 563 (2003). Defense counsel should have reasserted an objection during the instructions conference that the elements instruction was overly broad under these facts.
The State is bound by the wording of its charging document, and the prosecution and trial court must use caution in conforming the jury instructions to the charges. State v. Haberlein, 296 Kan. 195, 210–11, 290 P.3d 640 (2012), cert. denied 134 S.Ct. 148 (2013). If the State is bound by the items listed in the complaint, and seeks a conviction based on theft of an item not listed in the complaint does the State or the court have the duty to ensure the complaint and jury instructions act in tandem? “It is the longestablished rule in Kansas that instructions should be confined to issues made by the pleadings and should not be broader or narrower than the [complaint or] information.” State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009) (citing State v.. Booker, 197 Kan. 13, 15, 415 P.2d 411 [1966] ). A jury instruction on the elements of a crime that is broader than the complaint charging the crime is erroneous, and that error is only excusable if the substantial rights of defendant are not prejudiced. State v. Jones, 290 Kan. 373, 383–84, 228 P.3d 394 (2010) (quoting Trautloff, 289 Kan. at 802–03.
Even if the trial court's decision to overrule defense counsel's objection was error, was it harmless? If the error violated Rollins' constitutional right to due process and to be advised of the charges for which she was convicted, was the error harmless? A constitutional error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of did not affect substantial rights, meaning it did not contribute to the verdict obtained. See State v. Ward, 292 Kan. 541, 568–69, 256 P.3d 801 (2011) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L. Ed 2d 705, reh. denied 386 U.S. 987 [1967] ). Did the State prove beyond a reasonable doubt that failure to list the nails in the complaint did not contribute to the verdict?
Would Rollins have presented a different theory of defense to the crime of theft for stealing the storage closest and the nails? Was Rollins denied her right to present a defense? A defendant is entitled to an instruction on the law applicable to his or her theory of defense if there is evidence which, when viewed in the light favoring the defendant, would justify a rational jury making a finding consistent with the defendant's theory. State v. Hendrix, 289 Kan. 859, 861, 218 P.3d 40 (2009). Rollins' theory of defense was that she never intended to steal the storage closet, but she had merely forgotten about it being in her cart. She maintains that if the jury believed her, it would have acquitted her based on her forgetfulness. She claims this defense could not possibly explain the taking of the nails because she hid those in a bag and intended to sneak out without paying. Rollins claims that without the prosecutor's improper argument, there is a reasonable possibility that one or more jurors would have accepted her defense and acquitted her.
After contemplation of the various questions raised here, error falls upon the State for not amending the complaint, even at the late stage of the trial, to reflect all items of property that Rollins allegedly stole. The complaint must be a plain and concise written statement of the essential facts constituting the crime charged. K.S.A. 22–3201(b). Defense counsel's objection created a defective complaint and could possibly even have been construed as an awkward motion to arrest judgment. See K.S.A.2014 Supp. 22–3502. Ultimately, the trial court erred in overruling defense counsel's objection.
Yet, the error was harmless. Despite Rollins' arguments to the contrary, her defense to stealing the items in her cart was that she was not feeling well and needed food to calm her shakiness. This defense applied equally to all the items in her cart. Rollins did not allege at trial, nor does she argue now, any alternative defense to possession of the nails. Rather, if she forgot one item, then she forgot all of the items. Further, there is sufficient evidence in the record to support a conviction of theft of both the storage closet and the nails. Both Edwards and Mwanga testified that Rollins admitted to stealing the storage closet and confessed to stealing the nails when she handed them over to the asset protection employees. Mwanga testified he also heard Rollins tell Officer Little that she admitted to shoplifting both the storage closet and nails. Consequently, we are convinced beyond a reasonable doubt that the error complained of did not prejudice Rollins' substantial rights and did not create a violation of her due process rights requiring a reversal of the conviction.
Next, Rollins argues the trial court erred in failing to give a curative instruction to the jury after closing arguments based on the prosecutor's comment that Officer Little had arrested Rollins for shoplifting.
Based on the timing of defense counsel's request, we apply a clearly erroneous standard. No party may assign as error the giving or failure to give an instruction unless the parties objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the failure to give an instruction is clearly erroneous. K.S.A.2013 Supp. 22–3414(3) ; see State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). The appellate court uses a two-step process in determining whether the challenged instruction was clearly erroneous: (1) The court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record; (2) if the court finds error, it must assess whether it is firmly convinced that the jury would have reached a different verdict without the error. 297 Kan. at 204.
Generally, when analyzing an alleged error in jury instructions, the progression and corresponding standards of review on appeal are as follows:
“ ‘(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.]” Smyser, 297 Kan. at 203–04.
At the end of closing arguments after the jury retired to the jury room, defense counsel requested the following:
“Your Honor, I ask for a curative instruction on that last argument. I don't believe that the jury can draw any inference from the fact that Ms. Rollins was arrested. And I don't think that the[ jury] should have been told that what happened after ... Officer Little arrested Ms. Rollins. It is not Officer Little's place to decide the guilt of Ms. Rollins, and it is improper of the State to say the[ jury] should draw that inference.”
The trial court denied defense counsel's requested instruction as follows:
“Throughout the course of the trial there were several instances where the fact that ... Ms. Rollins was ultimately arrested by Officer Little was mentioned. I think quite honestly it is a reasonable inference that [the prosecutor] is asking the jury to draw, that she did this, she was arrested for it, and you should find her guilty for it. I will deny the request for a curative instruction. I don't think it is an inappropriate comment or statement. I think it's just an argument of reasonable inference of the facts that are already presented to the jury.”
Rollins relies on United States v. Mendoza, 522 F.3d 482 (5th Cir.2008), and Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), for authority that she was denied a fair trial and a presumption of innocence by the prosecutor's mention of her arrest and it was error to deny a curative instruction. In Mendoza, the defendant complained of the prosecutor's comments on the defendant's calm demeanor during trial and that resulted in a violation of Mendoza's right to not testify. 522 F.3d at 491. The court found the prosecutor's comments were in error, but were harmless. 522 F.3d at 497.
In Taylor, the trial court instructed the jury as to the prosecution's burden of proof beyond a reasonable doubt, but it refused Taylor's timely request for instructions on the presumption of innocence and the indictment's lack of evidentiary value. In addition to referring to the actions of “every other defendant” who's in prison now, the prosecutor commented that the police took out a warrant against Taylor and the jury had returned an indictment. The Court stated:
“The prosecutor's description of those events was not necessarily improper, but the combination of the skeletal instructions, the possible harmful inferences from the references to the indictment, and the repeated suggestions that petitioner's status as a defendant tended to establish his guilt created a genuine danger that the jury would convict petitioner on the basis of those extraneous considerations, rather than on the evidence introduced at trial. That risk was heightened because the trial essentially was a swearing contest between victim and accused.” 436 U.S. at 487–88.
The Taylor Court focused on the lack of a presumption of innocence instruction in holding that the trial court's refusal to give Taylor's requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment. 436 U.S. at 490.
The presumption of innocence is founded on the principle that “one accused of a crime is entitled to have guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Taylor, 436 U.S. at 485. Equally important to a fair trial is that the jury instructions, examined as a whole, properly and fairly state the applicable law and the jury could not be reasonably misled by the instructions. See State v. Hilt, 299 Kan. 176, 184–85, 322 P.3d 367 (2014).
Here, we conclude the prosecutor's isolated remark did not violate any constitutional rights. The remark was error, but of less than constitutional dimension. It is difficult for us to perceive that the argument had much impact at all. This was not a case of repeated references or expressions for the jury to find guilt based on Rollins' arrest. Instead, it was an objection to a single instance. As was the case in Taylor, the prosecutor's description of the events was within the evidence of the case and was not necessarily improper. Absent in Taylor, but present in the case before us, is the fact that the jury also received jury instructions that Rollins was not required to prove she was not guilty and also that the jury “must presume that she is not guilty.” The prosecutor's remark did not cast serious doubt on the verdict, which was obtained in an otherwise fair proceeding.
Our reading of the record also reveals that defense counsel used the fact that Rollins was arrested and taken away by attempting to show that Mwanga was a rogue asset protection officer and was the leading shoplifting detector for the Wichita area Walmarts. Defense counsel questioned Mwanga, “And as a result of your work and calling the police, Ms. Rollins was in fact arrested and taken away, correct?” Mwanga replied, “Yes, sir.” Rollins certainly cannot invite error by using the objectionable evidence and then challenging the evidence on appeal. See State v. Angelo, 287 Kan. 262, 280, 197 P.3d 337 (2008) (litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal).
We conclude that Rollins was convicted based on admissible evidence in a trial that was not perfect, but in which the imperfections did not deny Rollins a fair trial. Examining the instructions as a whole, we find no error.
Last, Rollins argues the trial court did not make the proper findings under State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), in order to impose attorney fees. Rollins claims the trial court erred in ordering her to reimburse BIDS for attorney fees without explicitly stating on the record the nature of the burden the payment would impose and how the burden and Rollins' finances factored into the trial court's decision. See K.S.A. 22–4513(b).
K.S.A. 22–4513 provides for the reimbursement of BIDS attorney fees by convicted criminal defendants. Determining whether the sentencing court complied with the requirements of K.S.A. 22–4513 is a matter of statutory interpretation. Interpretation of a statute is a question of law subject to unlimited appellate review. State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005). Sentencing courts, at the time of the initial assessment of BIDS attorney fees under K.S.A. 22–4513, must consider the financial resources of the defendant and the nature of the burden that payment will impose, explicitly stating on the record how those factors have been weighed in the court's decision. Robinson, 281 Kan. at 546 ; see K.S.A. 22–4513(b). The remedy for a sentencing court's failure to make explicit findings is to remand the case to the sentencing court for such findings. 281 Kan. at 548.
On the other hand, the State contends that following an inquiry into Rollins' employment, the court inquired of Rollins, “Do you think you will have the economic ability and the resources to pay that amount [$700] off over the 12 months probation without causing yourself an undue economic burden?” Rollins responded that she still owed $300 or $350 in other fees and that she did not know if she could pay it right now, but she would pay what she could. The State argues the trial judge made an informed decision and complied with Robinson by finding, “I will use your statements as findings under the Robinson case that it's not impossible.” The court ordered Rollins to pay the full $700 in fees.
Because we are bound by Supreme Court precedent, see State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012), we must conclude that the trial court's limited inquiry and lack of explicit findings fall short of the requirements mandated by the Kansas Supreme Court in Robinson based on K.S.A. 22–4513(b). We are therefore required to vacate the trial court's assessment of the BIDS attorney fees and remand the case to the trial court to consider, on the record, Rollins' financial resources and the burden imposed by the assessment of BIDS attorney fees.
Affirmed in part, reversed in part, and remanded with directions.
ATCHESON, J., concurring:
Although I concur in affirming Defendant Jennifer Rollins' conviction, I find the prosecutor's closing argument considerably more troubling than does the majority. The argument invited the jurors to infer guilt from a police officer's decision to arrest Rollins for shoplifting. That is wholly improper and denigrates the presumption of innocence—a matter of constitutional dimension. But Rollins' explanation for her conduct not only fails to establish a defense, it is factually implausible. Rollins, therefore, incurred no material prejudice because of the improper argument. As to the other issues Rollins has raised on appeal, I generally agree with the majority.
The facts show Rollins brought some empty bags with her into a Walmart store and put them in a shopping cart. At some point, she placed three boxes of nails in one of the bags. Rollins also put an unassembled storage closet on the bottom of a shopping cart and pushed the cart past the checkout lines toward the exit of the Walmart store. Store security officers then stopped Rollins for shoplifting and called the Wichita police. Wichita Police Officer Amanda Little responded to the store. According to Officer Little's testimony at trial, Rollins said she wasn't feeling well and was leaving the store to get a snack. Rollins told Officer Little she had forgotten the storage closet was in the shopping cart. Officer Little arrested Rollins.
The Sedgwick County District Attorney charged Rollins with felony theft because she had two past convictions for theft. Rollins did not testify at trial. So the jurors heard only the account Rollins related to Officer Little at the store as her explanation for what happened. The jurors convicted Rollins.
To debunk Rollins' explanation, the prosecutor argued to the jurors this way: “Ladies and gentlemen, Officer Little testified .... [t]hat she has experience dealing with detecting shoplifting, with investigating shoplifting, with making arrests for shoplifting. Officer Little did write in her report that this was a statement that [Rollins] did make to her. However, the officer then arrested [Rollins].”
Essentially, the prosecutor portrayed Officer Little as an expert in handling shoplifting offenses and then explained that Officer Little arrested Rollins despite hearing her explanation for what happened. The prosecutor intended to convey the message that the jurors should find Rollins guilty at least in part because Officer Little found her story insufficient to avoid being arrested. That is, the jurors should infer guilt from the fact of arrest. As outlined in the majority opinion, the district court plainly understood that to be the prosecutor's insinuation. In denying defense counsel's request for a countering instruction, the district court parsed the argument this way: Rollins “did this, she was arrested for it, and you should find her guilty for it.” The district court then characterized the prosecutor's pitch as “just an argument of reasonable inference.”
The district court understood the argument perfectly well—and I assume the jurors did too—but the inference is legally improper and fairly could be characterized as corrosive of Rollins' constitutional rights. The prosecutor's argument impaired the due process right of criminal defendants to the presumption of innocent and the cognate requirement that the government prove them guilty beyond a reasonable doubt. Taylor v. Kentucky, 436 U.S. 478, 485–86, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) ; United States v. Harper, 466 F.3d 634, 645 (8th Cir.2006), cert. denied 549 U.S. 1273 (2007). In Taylor, the Court reversed a robbery conviction because the prosecutor effectively argued to the jurors that they should return a guilty verdict based, in part, on the defendant's arrest and indictment. 436 U.S. at 487 (“[T]he jury not only was invited to consider [Taylor's] status as a defendant, but also was permitted to draw inferences of guilt from the fact of arrest and indictment.”). The argument, combined with the limited jury instructions, “created a genuine danger that the jury would convict [Taylor] on the basis of those extraneous considerations[.]” 436 U.S. at 488. The closing argument here spawned the same danger and was, therefore, improper.
The fact of Rollins' arrest was properly elicited in the trial testimony simply as part of the unfolding events. But much beyond establishing that fact would have been problematic. For example, the prosecutor could not have asked Officer Little why she arrested Rollins. A law enforcement officer need only have probable cause to arrest a person. That standard is far less rigorous than proof beyond a reasonable doubt necessary for jurors to convict, so the testimony would be irrelevant and confusing. See Harper, 466 F.3d at 645 (“We have condemned statements by prosecutors in the presence of the petit jury regarding the existence of probable cause or role of the grand jury because such statements improperly and unfairly suggest that a jury should return a conviction because a grand jury returned an indictment.”). Moreover, as the prosecutor implied in the closing argument here, the arresting officer may have discounted any explanation the person offered. The officer's assessment of credibility would impermissibly usurp the jurors' role as factfinders. See State v. Flynn, 274 Kan. 473, 491, 55 P.3d 324 (2002) (improper to ask one witness if another witness must be lying); see also United States v. Labarbera, 581 F.2d 107, 109 (5th Cir.1978) (A defendant may not be impeached based on an arrest because “[u]nder our constitutional scheme a defendant is presumed innocent until proven guilty, and therefore an arrest, without more, is quite consistent with innocence and yet its mention may prejudice the jury against defendant.”).
I disagree with the majority's suggestion that the prosecutor's argument did not deprecate Rollins' constitutional rights. It did. The majority seems to suggest there was no “constitutional dimension” to the argument because, under the circumstances of this case, it had little, if any, impact on the outcome. But that analysis uses the quantitative effect of the error—prejudicial versus harmless—to define the qualitative nature of the error—constitutional versus nonconstitutional. Here, the error was of constitutional magnitude, but it still may be declared harmless.
On appeal, Rollins has framed the issue not as one of prosecutorial misconduct in making an improper argument but as the district court's error in failing to give a curative jury instruction. The ultimate question, though, comes down to whether Rollins was deprived of a fair trial because of that part of the prosecutor's argument. Because the error impaired Rollins' constitutional rights, we must be able to say there was “no reasonable possibility the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
As I have indicated, based on the record as a whole, the error was harmless. In short, Rollins' defense was untenable. The explanation she gave Officer Little—her only account of why she did what she did—doesn't make any sense. First, Rollins said she was leaving Walmart to get a snack because she didn't feel well. But the Walmart had a grocery department with all kinds of food. Second, Rollins claimed to have forgotten the storage closet was in the shopping cart, meaning as far as she recalled it contained only the bags she had brought with her and the nails. But Rollins was stopped as she headed out of the store toward the parking lot. If Rollins had truly forgotten about the storage closet, she had no sensible reason to be wheeling the shopping cart into the parking lot.
Given the patent implausibility of Rollins' version of her actions, the prosecutor's argument could not have influenced the verdict in any material way. So the argument, though quite improper and a violation of Rollins' constitutional rights, amounted to harmless error. On that basis, I concur in affirming the judgment of conviction.