State v. Pabst, No. 80,738.
| Decision Date | 11 February 2000 |
| Docket Number | No. 80,738. |
| Citation | 268 Kan. 501,996 P.2d 321 |
| Parties | STATE OF KANSAS, Appellee, v. TOD ALAN PABST, Appellant. |
| Court | Kansas Supreme Court |
Geary N. Gorup, of the Law Office of Geary N. Gorup, argued the cause and was on the brief for appellant.
Stephen D. Maxwell, assistant attorney general, argued the cause, and Jared S. Maag, assistant attorney general, and Carla J. Stovall, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
This is the rare case in which the prosecutor's improper remarks during closing argument were so prejudicial that a new trial is required. Defendant Tod Alan Pabst appeals his jury conviction for first-degree murder, K.S.A. 21-3401. The conviction arises out of the shooting death of Pabst's fiancee, Phoebe Harkins. The district court sentenced Pabst to 25 years to life in prison.
Our jurisdiction is under K.S.A. 22-3601(b)(1) ().
The controlling question is whether Pabst was denied a fair trial by prosecutorial misconduct. We hold that he was. The State is free to retry Pabst because there was sufficient evidence of guilt presented in the first trial.
We set out a summary of the key facts. Additional facts are referenced in the discussion section of the opinion. Pabst shot Phoebe Harkins, his fiancee, twice in their home in March 1997. They had a 3-year-old daughter, who was also at home at the time of the shooting. The shooting took place after an argument about money. Pabst claimed the shooting was accidental.
Harkins was a bank vice-president; Pabst was a building contractor. Harkins and Pabst divided the responsibility for paying household bills. Harkins kept current on her obligations; Pabst did not. Discord in the relationship developed. Business was slow for Pabst. However, he had secured a contract on the day of the shooting to build a $200,000 home. Pabst testified that he was elated at the turn of events. When he returned home that evening, Harkins did not share in his excitement. She was upset. The gas company collected a past due bill from Harkins at the bank where she was employed. The gas bill was Pabst's responsibility. The argument leading to Harkins' death followed.
Pabst testified in his defense. According to Pabst, Harkins' reaction to his news of the $200,000 contract made him feel worthless. He retrieved a .44 caliber double-action revolver from his truck, brought it inside, and handed it to Harkins. He told her to shoot him if she thought he was so worthless. When Harkins said she might shoot herself or their daughter, he tried to take the weapon from her. They struggled over the gun from a standing position and began to fall on the couch, and the gun went off. Both of their hands were on the gun for at least the first shot. Pabst claims he tried to pick Harkins up off the couch and got blood on his hands in the process. He wiped the blood off his hands and then called 911.
A State witness testified that one bullet entered Harkins' arm a few inches below the shoulder. The bullet traveled through her arm and entered her chest below the armpit passing through a lung and shattering her spinal column. The second shot hit Harkins in the head just behind her right ear and exited just behind her left ear. Each shot was fatal. Police found Harkins in a sitting position on the couch. Her legs were crossed and her torso was slumped to the side.
Forensic experts found no evidence of blood on Pabst's hands or clothes. Ballistic evidence showed that the gun was at least 1 to 5 feet away from Harkins when fired. There was no visible evidence of gunpowder residue on Harkins' hands. No fingerprints belonging to Harkins were found on the gun. The pattern of blood stains suggested that Harkins was sitting in an upright position on the couch when shot. An expert for the State testified that it would be physically impossible for Harkins' hands to be on the gun when fired due to the trajectory of the shots.
We first examine the controlling question: Was Pabst denied a fair trial by prosecutorial misconduct? The answer is, "Yes."
Pabst argues the prosecutor made several improper and prejudicial remarks during trial. Pabst alleges misconduct took place during: (1) opening statement; (2) cross-examination of Pabst; and (3) closing argument. Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant's constitutional right to a fair trial. See State v. Sperry, 267 Kan. 287, 308, 978 P.2d 933 (1999). Some complained-of prosecutorial statements were not objected to at trial. If the claimed error has been determined to implicate a defendant's right to a fair trial, our standard of review is the same whether or not an objection was made at trial. If the claimed error rises to the level of a denial of the Fourteenth Amendment right to due process, the issue will be addressed. State v. McCorkendale, 267 Kan. 263, Syl. ¶ 6, 979 P.2d 1239 (1999).
Although Pabst cites several examples of alleged misconduct, we discuss only the prosecutor's remarks contributing to our decision to reverse. Those remarks occurred during closing argument.
Pabst contends that the prosecutor made numerous improper remarks during closing argument. According to Pabst, the prosecutor: (1) attempted to inflame the passions or prejudices of the jury; (2) suggested that the defense withheld evidence from the jury; (3) called Pabst a liar; and (4) shifted the burden of proof to Pabst. We focus only on the last two complaints.
The analysis of the effect of a prosecutor's alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner of presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal. State v. Lumley, 266 Kan. 939, Syl. ¶ 12, 976 P.2d 486 (1999).
A review of the transcript shows that the prosecutor accused Pabst of lying at least 11 times during closing argument:
Whether couched in terms of the State or the prosecutor, the assertion that Pabst lied was improper. See State v. Lockhart, 24 Kan. App.2d 488, 492, 947 P.2d 461 (1997). It was also improper for the prosecutor to claim, "We didn't lie to you," in an attempt to bolster the credibility of the State's witnesses. See State v. Mosley, 25 Kan. App.2d 519, 525, 965 P.2d 848, rev. denied 266 Kan. 113 (1998) ().
The Kansas Rules of Professional Conduct (KRPC) and the American Bar Association Standards of Criminal Justice instruct on prosecutorial comment. Our rules of conduct clearly and unequivocally say that it is improper for a lawyer to comment on a witness' credibility.
KRPC 3.4 (1999 Kan. Ct. R. Annot. 369-70) states:
The ABA standards for prosecutors say:
To continue reading
Request your trial
-
State v. Murray, No. 94,619.
...from the evidence and is given latitude in drawing those inferences." Stano, 284 Kan. at 151, 159 P.3d 931; see also State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000) (stating that the law recognizes a prosecutor must be allowed "the freedom to craft an argument that includes reasonabl......
-
State v. Whitesell, No. 82,610.
...a new trial. We recently discussed our standard of review for prosecutorial misconduct during closing argument in State v. Pabst, 268 Kan. 501, 504-05, 996 P.2d 321 (2000). In Pabst, we "Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defenda......
-
State v. Scott, No. 83,801.
...Scott was a liar. We have previously held a prosecutor's comment on the credibility of a witness is improper. See State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321 (2000). This is because "the ultimate conclusion as to any witness' veracity rests solely with the jury." 268 Kan. at 507, 996 P.......
-
State v. Simmons
...to make the prosecutor his or her own witness who offers unsworn testimony not subject to cross-examination. See [ State v.] Pabst, 268 Kan. [501, 510, 996 P.2d 321 (2000)]; People v. Hill, 17 Cal.4th 800, 828, 72 Cal.Rptr.2d 656, 952 P.2d 673 (1998). This unsworn testimony, “ ‘ “although w......
-
Harmonizing Legal Ethics Rules with Advocacy Norms
...Court precedent have found that similar appeals for jurors to decide cases based on passion and emotion were improper.”); State v. Papst, 996 P.2d 321, 324–29 (Kan. 2000). 85. Fineman v. Armstrong World Indus., Inc., 774 F. Supp. 266, 269 (D.N.J. 1991). 86. Id. 87. See, e.g. , Draper v. Air......
-
RETRIBUTIVE EXPUNGEMENT.
...whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."); State v. Pabst, 996 P.2d 321, 328 (Kan. 2000) ("A prosecutor is a servant of the law and a representative of the people.... We are unable to locate an excuse for a prosec......