260 P.3d 86 (Kan. 2011), 101,354, State v. Naputi

Docket Nº101,354.
Citation260 P.3d 86, 293 Kan. 55
Opinion JudgeJOHNSON, J.:
Party NameSTATE of Kansas, Appellee, v. Patrick P.L. NAPUTI, Appellant.
AttorneyMichelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant. Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
Judge PanelMICHAEL J. MALONE, District Judge, assigned.[1]
Case DateSeptember 02, 2011
CourtUnited States State Supreme Court of Kansas

Page 86

260 P.3d 86 (Kan. 2011)

293 Kan. 55

STATE of Kansas, Appellee,

v.

Patrick P.L. NAPUTI, Appellant.

No. 101,354.

Supreme Court of Kansas.

September 2, 2011

Page 87

Syllabus by the Court

1. Appellate review of prosecutorial misconduct in closing arguments involves a two-step analysis. First, the court must determine whether the prosecutor's statements were outside the wide latitude for language and manner a prosecutor is allowed when discussing the evidence; second, the court must determine whether the comments constitute plain error, that is, whether the statements were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial.

2. In determining whether prosecutorial misconduct constitutes plain error, three factors are considered: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's

Page 88

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. No individual plain error factor is controlling, and the third factor of direct and overwhelming evidence may never override the first two factors unless the State has established beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record.

3. In a case involving multiple counts of alleged criminal conduct, each charged crime is a separate and distinct offense. The jury must decide each charge separately based upon the evidence and applicable law, uninfluenced by its decision on any other charge.

4. Juries possess the power to decide a case in a manner which is contrary to the applicable facts and law, i.e., the power of jury nullification. However, a defendant is not entitled to have the jury instructed on the power of nullification.

5. At sentencing, a district court does not have the statutory authority to impose lifetime electronic monitoring as a condition of parole.

6. A challenge to a sentence as unconstitutionally cruel and/or unusual must be initiated and ruled upon in the district court in order to preserve the issue for appellate review.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

OPINION

JOHNSON, J.:

[293 Kan. 56] In two cases consolidated for trial, a jury convicted Patrick Naputi on seven counts of aggravated indecent liberties with a child under age 14. The district court granted Naputi's departure motion and imposed a sentence that included 122 months of incarceration, lifetime electronic monitoring, and lifetime postrelease supervision. Naputi appeals his convictions and sentences, claiming that (1) the prosecutor committed misconduct in closing argument; (2) the district court erred in denying the defense request to modify a jury instruction to reflect the jury's power of nullification; (3) the district court erred in imposing lifetime electronic monitoring; and (4) the imposition of lifetime postrelease supervision is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights. We affirm the convictions but vacate the portion of the sentence ordering lifetime electronic monitoring in accordance with State v. Jolly, 291 Kan. 842, 249 P.3d 421 (2011).

FACTUAL OVERVIEW

The charges against Naputi alleged that he lewdly fondled or touched six boys, five of whom were in the same fourth grade class where Naputi worked as a paraprofessional. The allegations in that case, 06 CR 2951, originally surfaced when the school principal, David Jennings, contacted law enforcement after being informed by B.S.'s mother that B.S. complained that he had been touched by Naputi on his leg and under his shorts. In response, Jennings sent a letter to the parents of all the children in Naputi's classroom informing them of the accusations and encouraging them to discuss [293 Kan. 57] the issue with their children. As a result, four other classmates, P.S., K.P., L.O., and K.K., reported having been similarly touched by Naputi.

After Naputi was arrested for the alleged classroom incidents, the parents of the sixth victim, B.N., a Naputi family friend, contacted the police. The parents reported that B.N. had said that Naputi touched him during a sleepover at the Naputi family home. Initially, B.N.'s parents believed that B.N. had misconstrued tickling for inappropriate touching. However, once Naputi was arrested, B.N.'s parents formally reported the incident, which led to the aggravated indecent liberties with a child charge in case 07 CR

Page 89

150. The two cases were consolidated for trial.

At trial, Naputi requested that the district court modify the jury instruction on the State's burden of proof to reflect the jury's power of nullification. The district court denied that request and gave the standard PIK instruction. The jury convicted Naputi on all counts.

Thereafter, Naputi filed a motion for new trial claiming three instances of prosecutorial misconduct during the State's closing argument. Specifically, Naputi complained that the prosecutor (1) misled the jury as to the definition of specific intent; (2) improperly shifted the burden of proof by commenting on the defense's failure to call a therapist as a witness; and (3) made an improper propensity argument in contravention of K.S.A. 60-455 by encouraging the jury to find that B.N.'s allegations corroborated the allegations of the five classmates. Following a hearing, the district court overruled the new trial motion.

At sentencing, Naputi argued for, and was ultimately granted, a downward departure. However, he now complains, and the State agrees, that the district court erred in ordering lifetime electronic monitoring as part of the departure sentence. He also asserts for the first time on appeal that lifetime postrelease supervision constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights.

We have jurisdiction over this direct appeal pursuant to K.S.A. 22-3601(b)(1).

[293 Kan. 58] PROSECUTORIAL MISCONDUCT

Our review of prosecutorial misconduct claims has followed a now-familiar two-step analysis, which we have described as follows:

" ‘ " First, the court must determine whether the prosecutor's statements were outside the wide latitude for language and manner a prosecutor is allowed when discussing the evidence; second, it must determine whether the comments constitute plain error, that is, whether the statements were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial." [Citations omitted.]’

" The second step addresses whether the misconduct is so prejudicial that it denies the defendant a fair trial and requires a harmlessness inquiry. [ State v. Brinklow, 288 Kan. 39, 44, 200 P.3d 1225 (2009) ]. Three factors are considered: ‘ (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.’ [Citation omitted.] No individual factor is controlling, and the third factor may never override the first two until both harmlessness tests— K.S.A. 60-261 (prosecutor's statements were inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (error had little, if any, likelihood of changing the outcome of trial)— have been met. ‘ " ‘ If this can be said, then certainly it will also be true " that the misconduct would likely have little weight in the minds of jurors." ’ " ' [Citations omitted.]" State v. Kemble, 291 Kan. 109, 121-22, 238 P.3d 251 (2010).

Recently, this court's decision in State v. Ward, 292 Kan. 541, ----, 256 P.3d 801 (2011), endeavored to clarify our case law defining and applying harmless error standards, including the two tests described above, i.e., the K.S.A. 60-261 harmlessness test and the Chapman federal constitutional harmless error test. Ward 's synthesis and standardization of harmless error tests did not purport to modify our prior holding that the Chapman harmless error test applies to prosecutorial misconduct claims. Therefore, the third factor of the second step of the prosecutorial misconduct test still may not override the first two factors unless the State has demonstrated " beyond a reasonable doubt that the error complained of ... did not affect the outcome of the trial in light of the entire record." Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801.

Page 90

Misstatement of Law

Naputi complains of two separate instances where he believes [293 Kan. 59] that the prosecutor misstated the definition of specific intent— an element of the aggravated indecent liberties offense. K.S.A. 21-3504 requires that the State prove that Naputi engaged in: " Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both." Thus, to convict Naputi, the jury had to find both that his touching of the boys was a lewd fondling or touching and that Naputi's intent in touching the boys was to arouse or satisfy his or each boy's sexual desires.

Naputi suggests that twice during closing arguments the prosecutor misstated the law by combining the two statutory requirements into one. In the first challenged remark, the prosecutor said: " The interpretation of how he touched...

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196 practice notes
  • 302 P.3d 44 (Kan.App. 2013), 106,869, State v. Taylor
    • United States
    • Kansas Court of Appeals of Kansas
    • June 7, 2013
    ...apparent indifference to a court's ruling. 294 Kan. 850, Syl. ¶ 7. The record reveals no such circumstances here. Accord State v. Naputi, 293 Kan. 55, 62, 260 P.3d 86 (2011) (citing State v. Washington, 275 Kan. 644, 672, 68 P.3d 134 [2003] in recognizing " a few comments included in [......
  • 303 P.3d 727 (Kan.App. 2013), 108,096, State v. Yarbrough
    • United States
    • Kansas Court of Appeals of Kansas
    • July 19, 2013
    ...were improper, the misconduct was not gross or flagrant and showed no ill will on the part of the prosecutor. See State v. Naputi, 293 Kan. 55, 62, 260 P.3d 86 (2011) (collecting cases stating that isolated comments in lengthy transcript do not establish gross and flagrant conduct or ill wi......
  • 343 P.3d 562 (Kan.App. 2015), 111,390, State v. Chambers
    • United States
    • Kansas Court of Appeals of Kansas
    • February 27, 2015
    ...the jury that it had a right to disregard instructions of law. After researching the issue, the district court cited to State v. Naputi, 293 Kan. 55, 66, 260 P.3d 86 (2011), in finding that it would be " inalterably inconsistent" to instruct the jury on the law and then to allow a......
  • 376 P.3d 93 (Kan.App. 2016), 112,573, State v. Barlett
    • United States
    • Kansas Court of Appeals of Kansas
    • May 13, 2016
    ...the prosecutor was conveying to the jury," reading the challenged statements in context is important. State v. Naputi, 293 Kan. 55, 59, 260 P.3d 86 (2011). Moreover, challenged statements must also be considered " in conjunction with the instructions given......
  • Request a trial to view additional results
194 cases
  • 302 P.3d 44 (Kan.App. 2013), 106,869, State v. Taylor
    • United States
    • Kansas Court of Appeals of Kansas
    • June 7, 2013
    ...apparent indifference to a court's ruling. 294 Kan. 850, Syl. ¶ 7. The record reveals no such circumstances here. Accord State v. Naputi, 293 Kan. 55, 62, 260 P.3d 86 (2011) (citing State v. Washington, 275 Kan. 644, 672, 68 P.3d 134 [2003] in recognizing " a few comments included in [......
  • 303 P.3d 727 (Kan.App. 2013), 108,096, State v. Yarbrough
    • United States
    • Kansas Court of Appeals of Kansas
    • July 19, 2013
    ...were improper, the misconduct was not gross or flagrant and showed no ill will on the part of the prosecutor. See State v. Naputi, 293 Kan. 55, 62, 260 P.3d 86 (2011) (collecting cases stating that isolated comments in lengthy transcript do not establish gross and flagrant conduct or ill wi......
  • 343 P.3d 562 (Kan.App. 2015), 111,390, State v. Chambers
    • United States
    • Kansas Court of Appeals of Kansas
    • February 27, 2015
    ...the jury that it had a right to disregard instructions of law. After researching the issue, the district court cited to State v. Naputi, 293 Kan. 55, 66, 260 P.3d 86 (2011), in finding that it would be " inalterably inconsistent" to instruct the jury on the law and then to allow a......
  • 376 P.3d 93 (Kan.App. 2016), 112,573, State v. Barlett
    • United States
    • Kansas Court of Appeals of Kansas
    • May 13, 2016
    ...the prosecutor was conveying to the jury," reading the challenged statements in context is important. State v. Naputi, 293 Kan. 55, 59, 260 P.3d 86 (2011). Moreover, challenged statements must also be considered " in conjunction with the instructions given......
  • Request a trial to view additional results
1 books & journal articles
  • To err is human: a new outlook on 'prosecutorial misconduct'.
    • United States
    • Prosecutor, Journal of the National District Attorneys Association Vol. 48 Nbr. 4, October - October 2014
    • October 1, 2014
    ...(12) State v. Graham, 277 Kan. 314, 979 P.3d. 143 (2004). (13) State v. Baker, 287 Kan. 345, 365,197 P.3d 421 (2008); State v. Naputi, 293 Kan. 55, 62, 260 P.3d 86 (14) State v. Chanthaseng, 293 Kan. 140,147-48, 261 P.3d 889 (2011). (15) People v. Jasso, 211 Cal.App.4th 1354,150 Cal.Rptr.3d......

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