State v. Brinklow

• Decision Date: 30 January 2009
• Docket Number: No. 96,231.,96,231.
• Citation: 200 P.3d 1225
• Parties: STATE of Kansas, Appellant/Cross-appellee, v. Earl Wayne BRINKLOW, Appellee/Cross-appellant.
• Court: Kansas Supreme Court

200 P.3d 1225

STATE of Kansas, Appellant/Cross-appellee, v. Earl Wayne BRINKLOW, Appellee/Cross-appellant.

No. 96,231.

Supreme Court of Kansas.

January 30, 2009.

Richard N. Raleigh, county attorney, argued the cause, and Brenton G. Lonker, associate counsel, of Medicine Lodge, and Paul J. Morrison, attorney general, were with him on the briefs for appellant/cross-appellee.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee/cross-appellant.

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

Earl Brinklow seeks our review of the Court of Appeals' decision affirming his convictions and sentences on six counts of aggravated indecent liberties with a child. Brinklow contends that the trial court erred in denying his motion to sequester witnesses; that the prosecutor's misconduct denied him a fair trial; that the evidence was insufficient to support the convictions; that cumulative error denied him a fair trial; and that the district court violated his constitutional rights by considering his prior criminal history in determining his sentence. Finding that Brinklow was denied a fair trial, we reverse and remand for a new trial.

FACTUAL OVERVIEW

On April 16, 2001, Brinklow was living with his wife and her 11-year-old daughter, A.C., when he allegedly entered A.C.'s bedroom and touched her genitals while she pretended to be asleep. A.C. remembered the date by relating it to a school field trip to a baseball game 2 days later. A.C. said that thereafter, Brinklow repeated the offense once or twice a week.

On May 27, 2001, A.C. told her mother that Brinklow had been touching her, prompting a confrontation between mother and Brinklow, which led to the police coming to the Brinklow house. When asked by an officer if Brinklow had sexually abused her, A.C. looked at her mother before answering "yes." However, A.C. was unable to continue the interview that night because she was crying and upset. Brinklow told the officer that he had not abused A.C.; that A.C. did not like him; and that mother had accused others of sexually abusing A.C. The following day, A.C. recanted her accusation, telling the officer that she had lied because she wanted Brinklow out of the house.

Brinklow and his wife separated after the incident. A.C. did not speak of the alleged sexual abuse until January 2005, when she attempted to commit suicide and was eventually placed in a psychiatric facility. There, she told staff that she had attempted suicide because she had been sexually abused by Brinklow. A.C. explained that her mother had instructed her to recant the initial allegation to avoid embarrassment. Later, her mother acknowledged that she had encouraged A.C. to recant the original accusation.

Brinklow was charged with six counts of aggravated indecent liberties with a child for the touching incidents alleged to have occurred between April 16, 2001, and May 24, 2001. After a jury convicted Brinklow on all counts, the sentencing court granted him a downward durational departure sentence. Brinklow appealed his convictions, and the State cross-appealed the durational departure sentence. The majority of the Court of Appeals panel affirmed both the convictions and the departure sentence. State v. Brinklow, No. 96,231, 2008 WL 940690, unpublished opinion filed April 4, 2008, rev. granted September 24, 2008. A dissenting judge would have found that Brinklow was denied a fair trial. This court granted Brinklow's petition for review.

DENIAL OF MOTION TO SEQUESTER WITNESSES

Prior to the commencement of trial testimony, Brinklow moved to sequester the witnesses. The trial court noted that there was authority to sequester witnesses at a preliminary hearing but opined that in the absence of an agreement from the State, the district court did not have authority to order witness sequestration at trial. Accordingly, when the prosecutor objected, the trial court summarily denied the sequestration motion.

A trial court has discretion to order the sequestration of witnesses. See State v. Heath, 264 Kan. 557, 588-90, 957 P.2d 449 (1998). Therefore, as the Court of Appeals noted, the trial court was clearly mistaken about its authority to grant the motion to sequester witnesses. Brinklow, slip op. at 6.

Ordinarily, this court reviews a trial court's sequestration decision for an abuse of discretion, and absent evidence that the defendant was prejudiced by a witness' presence, the decision will not be reversed on appeal. State v. Dunn, 243 Kan. 414, 428 758 P.2d 718 (1988). However, we have clarified that the highly deferential abuse of discretion standard is affected by the district court's failure to properly consider or apply the correct legal standard. See State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006). Likewise, the district court's failure to exercise its discretionary authority can be grounds for reversal. See State v. Anderson, 40 Kan.App.2d 403, Syl. ¶ 5, 192 P.3d 673 (2008) (trial court's deference to jailer's decision as to whether the defendant should remain shackled while in court was a failure to exercise court's own discretion and was therefore an abuse of that discretion).

Notwithstanding the trial court's application of an erroneous legal standard and the corresponding failure to exercise its discretion, the Court of Appeals found that reversal was not required because Brinklow had not shown that he was prejudiced by the error. Specifically, the opinion declared that "Brinklow fails to cite any testimony demonstrating that witnesses tailored their testimony based on the testimony of others, the problem that sequestration is aimed to prevent." Brinklow, slip op. at 6. A review of the mother's trial testimony reveals that she tailored her testimony to that of the victim, A.C.

The mother was present during A.C.'s testimony in which A.C. described the particulars of the alleged criminal acts. In the direct examination of the mother, the prosecutor did not ask the mother to relate what A.C. had told her about the alleged abusive touching. Rather, the prosecutor asked, "Did she tell you, or describe for you the same thing she testified to earlier today?" The response was simply, "Yes." The mother did not merely tailor her testimony to match that of A.C.; the mother adopted A.C.'s testimony by reference. The prosecutor's question was tantamount to asking the mother if her testimony would be the same as A.C.'s testimony. One would be hard-pressed to conceive of a more direct example of one witness tailoring his or her testimony to that of another witness.

Moreover, at a pretrial motion conference, Brinklow's attorney advised the district court that part of the defense strategy was to establish that the mother had a great deal of influence over A.C. Obviously, the defense had to establish that the mother and A.C. were acting together in making a false accusation. That task was hampered by both witnesses being in the courtroom together, so that the mother could simply adopt her daughter's testimony.

In addition, Brinklow complains that he was prejudiced by the trial presence of Betty Jo Mitchell. She testified to being present in the Brinklow home on May 27, 2001, when A.C. related the accusations to the police officer. However, the police officer did not place Mitchell at the residence during the interview. Brinklow argues that he was prevented from challenging Mitchell's presence at the residence by testing her knowledge of what transpired that night because Mitchell was able to learn what happened by observing the testimony of both A.C. and the mother. The Court of Appeals did not specifically address this complaint. Given our ruling on the mother's testimony, we need not analyze the prejudicial effect on Mitchell's testimony.

In conclusion, the district court erred in ruling that it did not have authority to sequester witnesses and consequently erred in failing to exercise its discretion to determine whether witnesses should have been sequestered in this case. The record reveals that the State elicited testimony from the mother which was directly tailored to the testimony of the victim. We cannot declare that the defendant did not suffer any prejudice from the trial court's error. See State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004) (prejudice shown when the error could have affected the result of the trial).

PROSECUTORIAL MISCONDUCT

Brinklow asserts a number of instances of prosecutorial misconduct, both in the questioning of witnesses and in addressing the jury. "When a defendant claims that a prosecutor committed reversible misconduct, the prejudicial nature of the alleged errors is analyzed in the context of the trial record as a whole." State v. Murray, 285 Kan. 503, 517, 174 P.3d 407 (2008).

"We employ a two-step analysis in considering claims of prosecutorial misconduct 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. [Citation omitted.]" State v. Scott, 286 Kan. 54, 77, 183 P.3d 801 (2008).

The second step, or plain error analysis, focuses on whether the misconduct is so prejudicial that it denies the defendant a fair trial and requires a harmlessness inquiry. 286 Kan. at 77-78, 183 P.3d 801. It requires consideration of three factors: (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. 286 Kan. at 78, 183 P.3d 801. None of these factors is individually controlling. Further, the third factor can never...