State v. McBride

• Decision Date: 01 December 2017
• Docket Number: No. 112,277,112,277
• Citation: 405 P.3d 1196,307 Kan. 60
• Parties: STATE of Kansas, Appellee, v. Osi Bisa MCBRIDE, Appellant.
• Court: Kansas Supreme Court

307 Kan. 60

405 P.3d 1196

STATE of Kansas, Appellee,

v.Osi Bisa MCBRIDE, Appellant.

No. 112,277

Supreme Court of Kansas.

Opinion filed December 1, 2017

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit Vogelsberg, of the same office, was on the brief for appellant.

Jodi E. Litfin, deputy district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

Osi Bisa McBride appeals his kidnapping conviction, claiming the prosecutor violated his rights to a fair trial by making improper remarks to the jury during closing arguments. A Court of Appeals panel agreed prosecutorial error occurred when the prosecutor asserted the alleged victim deserved consideration similar to the presumption of innocence constitutionally recognized for criminal defendants, but determined this error was harmless and affirmed the conviction. See State v. McBride, No. 112277, 2016 WL 199062 (Kan. App. 2016) (unpublished opinion). On review, we disagree with the harmlessness determination and reverse the kidnapping conviction. We remand the case to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged McBride with one count of rape, one count of aggravated kidnapping, and two counts of criminal sodomy. These charges stemmed from a November 7, 2011, incident with a woman, C.C., with whom McBride had an intermittent romantic relationship dating back to early 2010. C.C. reported McBride raped and sodomized her at his mother's house, where he lived. McBride stood trial on these charges twice.

The first trial occurred in August 2013. The jury could not reach a unanimous decision on any counts, so the district court declared a mistrial. At the second trial in November 2013, a jury convicted McBride only on a lesser included charge of kidnapping under K.S.A. 2016 Supp. 21-5408(a)(3). The court sentenced him to 216 months in prison, followed by 36 months of postrelease supervision.

On appeal, McBride made two arguments. First, he asserted the prosecutor violated his rights to a fair trial during closing arguments by: (1) improperly commenting on C.C.'s credibility; (2) implying McBride had a burden of proof to attack the State's story and present a defense; (3) misstating the case's facts; and (4) disparaging defense counsel. Second, he contended the trial court violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed. 2d 435 (2000), by relying on his criminal history at sentencing without asking a jury to find it beyond a reasonable doubt.

A Court of Appeals panel affirmed the conviction and sentence. McBride, 2016 WL 199062, at *1. It agreed the prosecutor improperly commented on C.C.'s credibility when he referred to C.C. and then asked the jury, " ‘[D]oesn't she deserve a certain presumption as well?’ " 2016 WL 199062, at *2.

But the panel concluded this error was not gross and flagrant, not motivated by the prosecutor's ill will, and harmless because there was overwhelming evidence against McBride. 2016 WL 199062, at *7-8. The panel determined the remaining prosecutorial statements in dispute were within the wide latitude afforded prosecutors in criminal cases and not error. 2016 WL 199062, at *3-7.

The panel also rejected the Apprendi claim, relying on State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002) (use of prior convictions to determine sentence does not trigger Apprendi protections). McBride, 2016 WL 199062, at *9.

McBride petitioned this court for review only on the prosecutorial error issue, which we granted. Jurisdiction is proper. K.S.A. 20-3018(b) (petition for review of Court of Appeals decision); K.S.A. 60-2101(b) (providing Supreme Court jurisdiction over cases subject to review under K.S.A. 20-3018 ).

The State did not cross-petition for review of the panel's determination that the prosecutor misstated the law about C.C.'s deserving consideration similar to the defendant's presumption of innocence, so that much is settled in McBride's favor. See State v. Rosa, 304 Kan. 429, 437, 371 P.3d 915 (2016) (only issue on review is whether error was harmless when State did not cross-petition from prosecutorial error determination by Court of Appeals); see, e.g., State v. Keenan, 304 Kan. 986, 992-93, 377 P.3d 439 (2016) (State cannot challenge a preservation issue on review because it did not cross-petition for review of that determination by Court of Appeals); State v. Corey, 304 Kan. 721, 741-42, 374 P.3d 654 (2016) (Supreme Court did not question panel's determination about defendant's absence during a critical stage of trial, noting State did not cross-petition for review on that question); State v. Williams, 303 Kan. 750, 754, 368 P.3d 1065 (2016) (State did not cross-petition for review on Court of Appeals determination that there was insufficient evidence to establish the crime of criminal threat, so that finding was not before Supreme Court on review); State v. Allen, 293 Kan. 793, Syl. ¶ 2, 268 P.3d 1198 (2012) ("Under Supreme Court Rule 8.03 [g][1], a party must allege that an issue was decided erroneously by the Court of Appeals in order for the issue to be properly before the Supreme Court on petition for review."). At oral argument, the State agreed the single issue on review was whether the prosecutorial error was harmless.

Because we hold that the established prosecutorial error is reversible standing alone, we make no rulings as to the remaining prosecutorial error claims. Additional facts will be detailed as necessary to complete our analysis.

STANDARD OF REVIEW

The panel released its unpublished decision in January 2016. At that time, when a criminal defendant claimed a prosecutor's act denied the defendant's due process rights to a fair trial, Kansas courts routinely referred to this as a "prosecutorial misconduct" claim. See, e.g., State v. Barber, 302 Kan. 367, Syl. ¶ 4, 353 P.3d 1108 (2015). The then-effective standard of review was a two-step analysis set out in State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004).

Under Tosh, an appellate court first decided whether the prosecutor's comments were outside the wide latitude allowed in discussing evidence. 278 Kan. at 85, 91 P.3d 1204. If they were, the court next made what was described as a "particularized harmless inquiry," assessing: (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 likely had little weight in the jurors' minds. 278 Kan. at 93, 91 P.3d 1204. None of these individually controlled, but before the third factor could ever override the first two, the appellate court had to be able to say 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), were met. 278 Kan. at 96, 91 P.3d 1204.

But State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), which was released in September 2016, abandoned Tosh's particularized harmlessness inquiry and adopted a new analytical framework for determining whether prosecutorial errors require reversal. See 305 Kan. at 107, 378 P.3d 1060. In doing so, Sherman renamed these claims " ‘prosecutorial error,’ " saving the " ‘prosecutorial misconduct’ " label for more egregious actions. 305 Kan. at 90, 114, 378 P.3d 1060 ("Prosecutorial acts properly categorized as ‘prosecutorial misconduct’ are erroneous acts done with a level of culpability that exceeds mere negligence."). Sherman did not disturb the preexisting standard for whether the complained of prosecutorial action was improper, i.e., the action was outside the wide latitude afforded prosecutors. 305 Kan. at 104, 378 P.3d 1060 ("The well-developed body of caselaw defining the scope of a prosecutor's ‘wide latitude’ ... will continue to inform our review of future allegations of prosecutorial error.").

Under Sherman :

"If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman. In other words, prosecutorial error is harmless if the State can demonstrate ‘beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.’ [Citation omitted.] We continue to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but when ‘analyzing both constitutional and nonconstitutional error, an appellate court need only address the higher standard of constitutional error.’ [Citation omitted.]" 305 Kan. at 109, 378 P.3d 1060.

The Sherman court further noted,

"Multiple and varied individualized factors can and likely will affect the Chapman analysis in future cases. Every instance of prosecutorial error will be fact specific, and any appellate test for prejudice must likewise allow the parties the greatest possible leeway to argue the particulars of each individual case. Thus, appellate courts should resist the temptation to articulate categorical pigeonholed factors that purportedly impact whether the State has met its Chapman burden. Appellate courts must simply consider any and all alleged indicators of prejudice, as argued by the parties, and then determine whether the State has met its burden—i.e., shown that there is no reasonable possibility that the error contributed to the verdict. The focus of the inquiry is on the impact of the error on the verdict. While the strength of the evidence against the defendant may secondarily impact this analysis one way or the other, it must not

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