State v. Akins

• Citation: 315 P.3d 868,298 Kan. 592
• Decision Date: 10 January 2014
• Docket Number: No. 105,809.,105,809.
• Parties: STATE of Kansas, Appellee, v. Michael AKINS, Jr., Appellant.
• Court: United States State Supreme Court of Kansas

298 Kan. 592
315 P.3d 868

STATE of Kansas, Appellee,
v.
Michael AKINS, Jr., Appellant.

No. 105,809.

Supreme Court of Kansas.

Jan. 10, 2014.

[315 P.3d 871]

Syllabus by the Court

1. Review of prosecutorial misconduct claims involves a two-step process. The court first decides whether the comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct. Second, if misconduct is found, the court must determine whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial.

2. The case of State v. Tosh, 278 Kan. 83, 93, 97, 91 P.3d 1204 (2004), identified three factors to consider in determining if prosecutorial misconduct so prejudiced a jury against a defendant that a new trial should be granted: (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 against the defendant was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. Under Tosh, none of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), have been met.

3. Where both the constitutional and nonconstitutional error clearly arise from the very same acts and omissions, an appellate court begins with a harmlessness analysis of the constitutional error. If the constitutional error is reversible, an appellate court need not analyze whether the lower standard for harmlessness under K.S.A. 60–261 also has been met. Under both standards, the party benefiting from the error bears the burden of demonstrating harmlessness.

4. Under the facts of this case, the prosecutor committed misconduct by introducing and discussing the concept of grooming because the prosecutor's comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing the evidence. The prosecutor's comments here went beyond discussing the evidence because she failed to

[315 P.3d 872]

introduce any evidence regarding grooming in sexual abuse cases.

5. In closing arguments, a prosecutor may comment on admitted evidence as long as the remarks accurately reflect the evidence, accurately state the law, and are not intended to inflame the passions or prejudices of the jury or divert the jury from its duty to decide the case based on the evidence and the controlling law.

6. In general, a prosecutor may not offer a jury the prosecutor's personal opinion as to the credibility of a witness because such a comment is unsworn, unchecked testimony, not commentary on the evidence of the case. The determination of the truthfulness of a witness is for the jury.

7. In determining whether prosecutorial misconduct was gross and flagrant, among the things an appellate court considers are whether the comments were repeated, emphasized improper points, were planned or calculated, or violated well-established or unequivocal rules.

8. In determining whether prosecutorial misconduct was motivated by ill will, among the things an appellate court considers are whether the conduct was deliberate, repeated, or in apparent indifference to a court's ruling.

9. Under the facts of this case, it was reversible error for the prosecutor to comment that the Finding Words protocol is recognized as the “gold standard,” introduce and discuss the concept of grooming, and comment on the credibility of witnesses. Such conduct violated the defendant's right to a fair trial.

10. The exposure of a witness' motivation in testifying is a proper and important function of cross-examination. A witness can be questioned about possible bias and motivation for testifying regardless of the scope of the direct examination. Bias, interest, or improper motives of a witness may always be shown in order to place his or her testimony in proper perspective.

11. When jury unanimity is at issue in what has been determined to be a multiple acts case, the second question is whether error was committed. In a multiple acts case, either the State must inform the jury which act to rely upon in its deliberations or the court must instruct the jury to agree on the specific criminal act. The failure to elect or instruct is error.

12. In a multiple acts case where a unanimity instruction has not been given, inconsistencies in the evidence can lead to jury confusion and lack of unanimity even though the defendant presented a unified defense based on a general denial of wrongdoing.

Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, argued the cause and was on the briefs for appellant.

Natalie Chalmers, assistant solicitor general, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by NUSS, C.J.:

A jury convicted Michael Akins, Jr., of eight counts of aggravated indecent liberties with a child, one count of attempted aggravated indecent liberties with a child, one count of indecent liberties with a child, one count of aggravated indecent solicitation of a child, three counts of indecent solicitation of a child, and one count of battery. The district court sentenced him to prison for two consecutive hard 25 life sentences plus 59 months. Akins appeals his convictions and sentences. Our jurisdiction of his appeal is under K.S.A. 22–3601(b).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the prosecutor commit reversible misconduct? Yes.

2. Did the district court err by excluding testimony about prior false allegations of sexual abuse on the basis the proffered witnesses were related to Akins? Yes.

3. Did the district court err by failing to use written unanimity jury instructions for the charges? Moot.

4. Did the district court err by failing to comply with the jury-polling statute, K.S.A. 22–3421? Moot.

[315 P.3d 873]

5. Did cumulative error deny Akins a fair trial? Moot.

6. Are Akins' sentences unconstitutionally disproportional to the crimes charged? Moot.

Accordingly, we reverse and remand for a new trial.

Facts

Defendant Michael Akins, Jr., married Jennifer B. in April 2008. Jennifer had six children from a previous marriage: daughters, M., L., J., K., and N., and one son, E. Akins, Jennifer, and the children lived together at Akins' home in Inman, Kansas. At all relevant times, Akins was the police chief of Inman, and Jennifer worked for the McPherson County Attorney's office. Their marriage was short-lived, with the couple separating on December 18, 2009.

Approximately 2 weeks later, Jennifer asked her oldest daughter, M., whether Akins had ever done anything inappropriate to her. M. replied that Akins had touched her inappropriately and described the incidents while Jennifer took notes. Jennifer told her next three oldest children, E., L., and J., that Akins had done inappropriate things to M. and asked if he had done likewise to them. All three replied that he had also touched them inappropriately. Jennifer took notes of her conversations with L. and J., but E. prepared his own notes about the incidents.

Jennifer reported her children's allegations to her supervisor at the McPherson County Attorney's office, who then asked the Kansas Bureau of Investigation (KBI) to investigate. As a part of the resulting KBI investigation, M., E., L., and J. were all interviewed about their allegations. M. and E were interviewed by Kelly Robbins, the executive director of the Western Kansas Child Advocacy Center and Finding Words of Kansas. L. and J. were interviewed by Wilma Mueller, an investigative social worker at Kansas Social and Rehabilitation Services in Newton, Kansas. Both interviewers were trained in the “Finding Words” protocol for interviewing children in cases of suspected sexual abuse.

Based on the children's allegations and their interviews, the State charged Akins with 21 counts of various crimes. Each count was based on incidents that allegedly occurred between May 15 and December 18, 2009, the date of the couple's separation.

Regarding M., the State charged Akins with nine counts of aggravated indecent liberties, one count of indecent liberties, and three counts of indecent solicitation of a child. As to E., it charged Akins with two counts of battery, one count of aggravated indecent liberties, and one count of lewd and lascivious behavior. For L., it charged Akins with two counts of aggravated indecent solicitation and one count of aggravated indecent liberties. And as to J., it charged Akins with one count of aggravated indecent liberties.

Each child testified at trial about encounters with Akins. M. testified that Akins had entered her bedroom and touched her vagina, fondled her vagina in a car, penetrated her vagina with his fingers, fondled and sucked on her breasts, asked her to pull on his penis, had her pull on his penis, asked her if she wanted to put his penis in her mouth, and asked if he could perform oral sex on her. M. also testified that Akins would enter the bathroom while she was showering and comment on her breasts. She said he sent her more text messages than any other person and sent her flowers several times.

According to M., Akins sometimes woke her in the morning by sitting in bed with her and saying “good morning, wifey.” She testified further that Akins had her shave his back while he was wearing only his underwear. M. also stated that Akins also had her younger sisters shave his back. Finally, she testified Akins once asked her if she wondered what a French kiss would be like and later kissed her, licking around her lips. M. was 14 years old when the alleged incidents occurred.

L. testified that Akins asked to see her chest but that she initially refused. When Akins persisted, she eventually relented. She also said Akins made her shower with her...