State v. Simmons

• Decision Date: 08 July 2011
• Docket Number: No. 98,770.,98,770.
• Citation: 292 Kan. 406,254 P.3d 97
• Parties: STATE of Kansas, Appellee,v.James Matthew SIMMONS, Appellant.
• Court: Kansas Supreme Court

292 Kan. 406

254 P.3d 97

STATE of Kansas, Appellee,

v.James Matthew SIMMONS, Appellant.

No. 98,770.

Supreme Court of Kansas.

July 8, 2011.

Syllabus by the Court

1. Allegations of prosecutorial misconduct require a two-step analysis. First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. Appellate courts apply the test to prosecutorial action in contexts beyond mere comments on the evidence.

2. In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors to determine whether a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 (error not ground for new trial unless justice requires otherwise) and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.

3. Under the facts of this case, the prosecutor committed misconduct of sufficient magnitude to require reversal and a new trial.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.Reina Probert, deputy county attorney, argued the cause, and Brian P. Duncan, assistant county attorney, John D. Gutierrez, county attorney, and Steve Six, attorney general, were on the brief for appellee.

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

A jury convicted James Simmons of two counts of rape and one count of misdemeanor theft. Simmons appealed several issues, including five claims of prosecutorial misconduct during trial. The Court of Appeals affirmed Simmons' convictions. We granted Simmons' petition for review under K.S.A. 20–3018(b) on the prosecutorial misconduct claims only, obtaining jurisdiction under K.S.A. 60–2101(b).

We hold that prosecutorial misconduct denied Simmons a fair trial; we reverse and remand for a new trial.

Facts

On August 5, 2006, Simmons attended a house party in Pittsburg, Kansas. According to A.H., Simmons tried to strike up a conversation with her, but she told him to leave her alone. Simmons persisted, and this prompted A.H. to leave the party at 2 a.m. and walk home alone.

A.H. testified that during her walk, an unknown car pulled up alongside her on a dimly lit street. A man left the car, ran toward her, grabbed her hair, and ordered her into the car at gunpoint. Once inside, the dome light illuminated the man's face, and A.H. recognized Simmons as her captor. Two persons unknown to A.H. were also in the car.

According to A.H., she was taken to a house she did not recognize where Simmons directed her into the bedroom. Simmons ordered her to undress. After she disrobed, he forced her to perform oral sex on him. He later told her to lie on her back while they had vaginal intercourse. Later that morning, Simmons ordered A.H. back into the bedroom. There he performed oral sex on her, followed by vaginal intercourse. A.H. testified that she was not allowed to leave the house, later identified as Jesse Switzer's, and that all the sexual acts were nonconsensual. By contrast, Simmons testified that the acts involving A.H. were all consensual.

A.H. testified that later that day, a vehicle stopped at the house and Simmons ordered A.H. into the vehicle. They were taken to another house where they both engaged in drug use. According to A.H., she went into a bathroom to shower and then Simmons entered the shower and forced vaginal intercourse. After the shower, A.H. went to the living room and fell asleep. When she awoke, she did not see Simmons, and she ran out the back door and contacted police.

The State charged Simmons with three counts of rape, one count of aggravated kidnapping, and one count of aggravated criminal sodomy. It also charged him with one count of misdemeanor theft, claiming that he had stolen the gun he used to force A.H. into the car and intimidate her during several of the later crimes.

A jury found Simmons guilty of theft and guilty on two of the three rape counts, but it was unable to reach a unanimous decision on the third count. It acquitted him on the aggravated kidnapping and aggravated criminal sodomy counts.

The Court of Appeals affirmed in State v. Simmons, No. 98,770, 2009 WL 981685 (2009) (unpublished opinion). We granted Simmons' petition for review on the prosecutorial misconduct claims only.

More facts will be added as necessary to the analysis.

Analysis

Issue: Prosecutorial misconduct denied Simmons a fair trial.

Simmons identifies five instances of alleged prosecutorial misconduct. The State argues that four of the instances are not prosecutorial misconduct. It concedes that the remaining instance was misconduct, but nevertheless harmless.

We recently outlined our two-step analysis for prosecutorial misconduct claims in State v. McCaslin, 291 Kan. 697, 715, 245 P.3d 1030 (2011):

“ ‘Allegations of prosecutorial misconduct require a two-step analysis. First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005) (quoting State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 [2004] ). We have applied the test to prosecutorial action in contexts beyond mere comment on the evidence. See State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006) (citing cases).’ State v. White, 284 Kan. 333, 337–38, 161 P.3d 208 (2007).”

We have provided specific guidance on when to grant a new trial on this basis:

“ ‘In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors to determine whether a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial) have been met.’ State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 (2008).” McCaslin, 291 Kan. at 715–16, 245 P.3d 1030.

Effective July 1, 2010, the language expressing the standard for reversible error changed in K.S.A. 60–261. Previously the statute stated that error would not be ground for granting a new trial “unless refusal to take such action appears to the court inconsistent with substantial justice.” Now the statute provides that error will not be ground for granting a new trial “[u]nless justice requires otherwise.” K.S.A. 2010 Supp. 60–261. Despite the language change, our general requirement remains unchanged: the statutory standard must be met before a new trial may be granted.

We review each claim of misconduct in turn.

Prosecutor's discussion of Stockholm Syndrome during voir dire

During voir dire, the prosecutor asked if anyone had a background in psychology or social work. Two venirepersons responded affirmatively. Following brief questions to them, the following colloquy occurred concerning Stockholm Syndrome:

“[Prosecutor]: Is anybody in this pool that's sitting in front of me familiar with what they call the Stockholm Syndrome? Has anyone heard of that? You are shaking you[r] head. What is it?

“[Potential juror]: It's where the victim identifies with the perpetrator.

“[Prosecutor]: All right.

“[Potential juror]: And that she—she or he will not have any vengeance or will actually fall in love with that person.

“[Prosecutor]: That's absolutely correct. You are very correct. Boils it down.”

The prosecutor then asked about the Patty Hearst case, which concerned the kidnapping of a young California woman who later appeared in a bank robbery with her kidnappers:

“[Prosecutor]: Does anybody in this pool remember Patty Hurst [ sic ]? Sir, you're nodding you[r] head. What did Patty Hurst [ sic ] do?

....

“[Potential juror]: She was kidnapped and then became a supposed member of the kidnapping gang.

“[Prosecutor]: That's correct. What—did she walk into a bank at one time with that group?”

“[Potential juror]: Yes.

“[Prosecutor]: What was she holding when she went in that bank?

“[Potential juror]: Some firearm.

“[Prosecutor]: Yes. Firearm. She robbed that bank with that group, didn't she? She came from a respectable family, didn't she?

“[Potential juror]: Well—

“[Prosecutor]: Again, a very well and respectable family, the Hearst family.

“[Potential juror]: Yes.”

The prosecutor next told the jury panel they should view certain trial evidence in light of the Stockholm Syndrome:

“[Prosecutor]: You are going to possibly hear...