State v. Sherman

• Decision Date: 09 September 2016
• Docket Number: No. 113,105,113,105
• Citation: 378 P.3d 1060
• Parties: State of Kansas, Appellee, v. Elton L. Sherman, Appellant.
• Court: Kansas Supreme Court

378 P.3d 1060

State of Kansas, Appellee,
v.
Elton L. Sherman, Appellant.

No. 113,105

Supreme Court of Kansas.

Opinion filed September 9, 2016

Meryl Carver–Allmond, of Capital Appellate Defender Office, argued the cause and was on the briefs for appellant.

Michael Gayoso, Jr., county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

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

Today, we narrow and rename our judicial review of prosecutorial behavior when such review occurs within a criminal appeal. Whenever we act inside the confines of a criminal appeal, we will henceforth review prosecutorial behavior for—and describe such conduct as—“prosecutorial error.” See, e.g. , American Bar Association House of Delegates, Recommendation 100B (2010) (recommending “trial and appellate courts, in criminal cases, when reviewing the conduct of prosecutors [should] differentiate between ‘error’ and ‘prosecutorial misconduct’ ”). Just as significantly, today's decision articulates a standard by which certain prosecutorial acts may properly be categorized as “prosecutorial misconduct” and appropriately sanctioned in separate proceedings occurring outside the confines of a criminal appeal. We announce these changes in the context of Elton Sherman's appeal of his convictions for first-degree felony murder and aggravated battery.

Sherman asserts three claims of reversible error on appeal. Principally, Sherman alleges that prosecutorial misconduct denied him his due process right to a fair trial guaranteed to him by the Fourteenth Amendment to the United States Constitution. Second, Sherman alleges the district court erroneously denied his motion for mistrial after the State introduced evidence of Sherman's prior convictions in violation of a pretrial order in limine.

378 P.3d 1065

As a final contingent claim, Sherman asks that if we find reversible error, we likewise grant Sherman some form of relief to address the alleged prejudice he has suffered as a result of the unusual and improper 7–year delay in Sherman's appeal.

With respect to the primary issue here—prosecutorial misconduct—both Sherman and the State urge us to reconsider and alter the legal tests we have applied to such claims since our holding in State v. Tosh , 278 Kan. 83, 91 P.3d 1204 (2004). On the one hand, Sherman asks that we eliminate ill will as a factor in our analysis because it distorts the ultimate question of whether the prosecutor's actions denied the defendant a fair trial and creates a de facto heightened harmlessness standard:

“[T]he overarching question for the second step of a prosecutorial misconduct analysis is whether the misconduct prejudiced the jury against the defendant and denied the defendant a fair trial....

“But ill will has very little to do with that.... [A] prosecutor may act with the blackest of hearts and yet his comments may ultimately have no impact on the jury. Or she may innocently bumble into a mistake of law that dramatically alters how the jury sees a case.”

On the other hand, the State urges us to adopt the nomenclature of “error” and reserve the term “misconduct” for extreme cases of intentional or malicious acts:

“[D]ifferentiating between a malicious and improper intentional act by the prosecutor and one that was a mistake ... provides clarification by this Court as to the level of gravity [of] the prosecutor's actions in the particular case.... This differentiation can be done when this Court determines if the conduct was committed with ill will.”

At oral argument, in a rare moment of clarity and consensus between the defense and prosecutorial bars, counsel for both parties indicated their mutual agreement with both prongs of the criticism being leveled at our Tosh rubric. We commend counsel, and so as not to squander the opportunity presented by both parties to improve our jurisprudence in this area, we have conducted a thorough review of Tosh and its progeny. In short, we agree with the criticisms of Tosh and adopt a modified approach that accords with the best interests of defendants, prosecutors, victims, and society at large. We conclude that our modified approach will more effectively and fairly preserve and protect the integrity of our constitutionally defined criminal justice system.

Though today we make a significant departure from both the nomenclature and the legal test we will apply to what have historically been known as prosecutorial misconduct claims, we emphasize that we are all too aware that the behaviors properly described as prosecutorial misconduct do still occur in Kansas. The power of the State to charge and prosecute its citizens for criminal violations of the law is a fearsome one, and it is vested exclusively in a prosecutor who is given vast discretion to make both charging decisions and the myriad of practical and strategic decisions that occur in the course of a prosecution. “The prosecutor has more control over life, liberty, and reputation than any other person in America.” Robert H. Jackson, U.S. Attorney Gen., The Federal Prosecutor, Address Before the Second Annual Conference of United States Attorneys (April 1, 1940). To suffer an abuse of this power at the hands of an unethical prosecutor is one of the grossest inequities and indignities that can be visited upon a citizen by the State. Such abuse cannot be tolerated in a free society.

Therefore, we wish to make it clear from the outset that today's decision does not eliminate the category of prosecutorial misconduct from our review and oversight of the criminal justice system as a whole. We merely remove it from inside the formal bounds of a criminal case. In so doing, as explained in detail below, when reviewing and supervising a criminal prosecution, the judiciary can more effectively keep our focus on and vindicate the dual interests of justice that are present in a criminal case—viz. , the rights of the defendant to receive a fair trial and society's need to punish and deter crime. Concurrently, when and if it is warranted, we can more effectively evaluate, punish, and deter the actions of rogue prosecutors when

378 P.3d 1066

we do so in a separate proceeding outside the four corners of a criminal case.

We are convinced by experience, reason, and a thorough review of the caselaw and history from numerous jurisdictions, that the approach we announce today will benefit every party concerned—from defendants whose constitutionally protected right to a fair trial will now become the sole focus of our prosecutorial error analysis; to victims of crime and society at large who will no longer have to endure the possibility that an otherwise constitutional conviction might be reversed simply to punish a prosecutor's bad acts; to the vast majority of our State's fine and ethical prosecutorial corps who need no longer fear that their every mistake will be tinged with the hint of unethical behavior and who will be quite happy, we surmise, as proverbial good apples, to see the bad apples removed from the barrel or otherwise appropriately pared.

Factual and Procedural Background

A jury convicted Elton Sherman of first-degree felony murder for the killing of Cecilio Mendez done while committing an aggravated battery against William Chirod Lewis. It was undisputed at trial that Sherman and Lewis knew each other—Lewis' wife was Sherman's girlfriend's sister. The two would see each other at family gatherings but were not close friends. On the night of the killing, both Lewis and Sherman were at Lewis' home. Sometime that night, Mendez was discovered by law enforcement outside of Lewis' home, alive but with a severe head injury. Mendez lapsed into a coma and died 2 weeks later. Lewis had also suffered a head injury that evening.

The remaining facts were disputed. The evidence presented to the jury consisted primarily of conflicting testimony between Lewis and Sherman. Lewis testified he and his wife, Laura Lewis, met Mendez during Thanksgiving day. They were walking from the family gathering (hosted by an aunt) to the store when they saw Mendez and asked him for a ride. Mendez agreed and Lewis testified he told Laura to try to get some money from Mendez. Laura sat in the front seat of Mendez' car, flirting. She gave Mendez her telephone number, and Mendez gave them some money for beer and a ride back to the family gathering.

Lewis testified that later that night, he, Laura, Sherman, and Laura's sister (Sherman's girlfriend), Rozanna Heilig, arrived at Lewis' home sometime after the family Thanksgiving celebration. Mendez and Laura then talked on the phone, and she left with Heilig to meet Mendez. The two returned a while later with 60 dollars from Mendez and arrangements to meet again the next day. Lewis testified that he told Sherman about the scheme to con Mendez out of money by enticing him with Laura and her sister.

The next day, Mendez again met with Laura, but she returned home shortly thereafter because Mendez was asking for Heilig instead. Lewis testified that Heilig teased Sherman as a result, and Sherman became upset. The group proceeded to allow Mendez to believe he could see Heilig if he came to the house the following day. Lewis testified there had been no discussion of robbing Mendez outright.

On Saturday night, Mendez showed up at Lewis' home. Lewis was...