State v. Madkins
| Decision Date | 20 November 2009 |
| Docket Number | No. 100,593.,100,593. |
| Citation | 219 P.3d 831 |
| Parties | STATE of Kansas, Appellee, v. Martye MADKINS, III, Appellant. |
| Court | Kansas Court of Appeals |
Randall L. Hodgkinson and Sean G. Whittmore, legal intern, of Kansas Appellate Defender Office, for appellant.
Tony Cruz, assistant county attorney, and Steve Six, attorney general, for appellee.
Before GREENE, P.J., GREEN and STANDRIDGE, JJ.
Martye Madkins, III appeals his felony convictions for possession of cocaine and having no drug tax stamp. Madkins argues that the prosecutor's comments during closing argument indirectly referenced Madkins' failure to testify and suggested to the jury that Madkins had the burden of providing facts to prove his own innocence. Madkins further argues the district court improperly prohibited him from posing certain questions to prospective jurors during voir dire. For the reasons stated below, we affirm Madkins' convictions.
On June 15, 2007, Junction City police officers arrested Kalvin Dotson, an alleged drug dealer, pursuant to a federal warrant. When the officers performed a stop of Dotson's car, Madkins was a passenger in the car. The officers reportedly observed Madkins throw a bag of crack cocaine out of the passenger's side window of the car. Madkins was subsequently arrested and charged with possession of cocaine with intent to sell and having no drug tax stamp.
Madkins' jury trial took place on November 28, 2007. During voir dire, the district court prohibited Madkins from posing certain questions to prospective jurors. Prior to the prohibition, Madkins' counsel had been exploring any ties or connections the prospective jurors had with police officers. The questioning briefly left the topic of police officers and focused on whether any of the prospective jurors worked with each other. Counsel then returned to the police officer topic by asking whether the prospective jurors could believe that a police officer might not tell the truth on the witness stand and whether they necessarily believed something happened just because a police officer said it happened. At this point, the judge interrupted questioning, ordered counsel to approach the bench, and prohibited defense counsel from asking any further questions about whether police officers lie.
At trial, the State provided several witnesses to the crime. The State's first witness was Angela New-Weeks, a Geary County sheriff's deputy. She testified to witnessing Madkins throw a bag of cocaine out the window of the stopped vehicle. The State provided the cocaine as an exhibit in the trial. Later, the State called Joshua Brown, a Junction City police officer, as a witness. Brown also testified to witnessing Madkins throw a bag of cocaine out of the vehicle. Another Junction City police officer, Randy Landreville, was called as a witness. Landreville testified to arriving late at the scene of the arrest and finding a bag of cocaine. The State also called Brad Crow, a forensic scientist with the Kansas Bureau of Investigation. Crow testified that he ran a forensic test on the contents of the bag thrown by Madkins and determined that it contained cocaine. After the State rested its case, Madkins chose to rest his case and offered no evidence or witnesses.
Following jury deliberations, Madkins was convicted of possession of cocaine, the lesser-included crime of possession with intent to sell, and for having no drug tax stamp.
Madkins alleges prosecutorial misconduct in closing argument when the prosecutor repeatedly asserted that there had been no testimony or evidence introduced at trial to refute the State's version of the facts. Our standard of review with regard to alleged misconduct by the prosecutor during opening statement or closing argument involves a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
In support of his claim of prosecutorial misconduct, Madkins alleges the prosecutor's comments regarding a lack of testimony or other evidence to refute the State's version of the facts (i) indirectly referenced Madkins' failure to testify; and (ii) suggested to the jury that Madkins had the burden of providing facts to prove his own innocence.
Notwithstanding the court's intervention, the prosecutor continued to make references to a lack of evidence by stating, "There's been no evidence to suggest that Mr. Dotson gave anything to Mr. Madkins." Next, the prosecutor argued, "There hasn't been any testimony or any evidence by the State's witnesses to suggest, you know, that somebody else happened to be there or, you know, there's some other logical explanation but for what the officers testified, and [that] the defendant threw out a bag of cocaine out the window." The prosecutor again made a statement regarding a lack of evidence when he said, "There has been absolutely no testimony except for—no evidence, except for the lack of baggies and scales, to contradict the State's evidence that the defendant possessed this with the intent to sell." Finally, the prosecutor told the jury, "You don't have anything to contradict these two officers' testimony."
The Fifth Amendment to the United States Constitution, as well as § 10 of the Kansas Bill of Rights, forbid the prosecution from commenting directly or indirectly upon a defendant's silence. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. McKinney, 272 Kan. 331, 347, 33 P.3d 234 (2001), overruled on other grounds State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). An indirect comment violates the privilege against self-incrimination if it was "manifestly intended or was of such a character that the jury would necessarily take it to be a comment on the failure of the accused to testify." McKinney, 272 Kan. at 347, 33 P.3d 234. In particular, a comment that the defense has not contradicted the State's evidence is impermissible if "it is highly unlikely that anyone other than the defendant could rebut the evidence." 272 Kan. at 347, 33 P.3d 234 (quoting U.S. v. DiCaro, 852 F.2d 259, 263 [7th Cir.1988]).
By pointing out that there had been no testimony presented at trial to contradict the officers' testimony or to provide any other logical explanation for the events as they transpired, we find the jury necessarily was led to believe that Madkins should have (and would have) taken the stand if he had something to say that would have contradicted the officers' testimony. Our finding in this regard relies on the fact that it was highly unlikely that any evidence other than Madkins' testimony could have rebutted the State's evidence. See McKinney, 272 Kan. at 347, 33 P.3d 234.
Specifically, the jury repeatedly was informed during opening statement, trial, and closing argument that the sole reason the undercover detectives stopped the car in which Madkins was riding as a passenger was to arrest Dotson, the driver of the car, pursuant to a federal warrant on charges of conspiracy to distribute cocaine. Madkins' theory of defense was that the cocaine found was not his, but was handed off to him by Dotson, who—as the jury repeatedly heard— was the target of a federal drug investigation involving distribution of cocaine. Given these facts, no reasonable juror would have expected Dotson to waive his right against self-incrimination by testifying that he handed the drugs off to Madkins. As a practical matter, then, the jury necessarily was led to believe the prosecutor's comments regarding a lack of testimony was a reference to Madkins—the only other individual present besides Dotson and the officers. See McKinney, 272 Kan. at 347, 33 P.3d 234 ().
Based on the particular circumstances presented, we find the comments at issue were improper and outside the wide latitude that the prosecutor is allowed in discussing the evidence. Because we have found the prosecutor's comments during closing argument were improper, we proceed to the second step of the analysis: whether Madkins was prejudiced as a result of the misconduct.
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