State v. Tosh

• Decision Date: 25 June 2004
• Docket Number: No. 89,042.,89,042.
• Citation: 278 Kan. 83,91 P.3d 1204
• Parties: STATE OF KANSAS, Appellee, v. JOHNNY F. TOSH, II, Appellant.
• Court: Kansas Supreme Court

278 Kan. 83

91 P.3d 1204

STATE OF KANSAS, Appellee, v. JOHNNY F. TOSH, II, Appellant.

No. 89,042.

Supreme Court of Kansas.

Opinion filed June 25, 2004.

Korey A. Kaul, assistant appellate defender, argued the cause and was on the brief for appellant. Linda E. DeWitt, special counsel, argued the cause, and Larry A. Markle, assistant county attorney, F. William Cullins, county attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Johnny F. Tosh, II, was convicted of rape, aggravated sexual battery, and aggravated kidnapping. In an unpublished opinion, the Court of Appeals affirmed his convictions and remanded for resentencing. This court granted Tosh's petition for review on the single issue of prosecutorial misconduct.

The facts are set forth in the Court of Appeals' opinion, and they are not at issue as to this single-issue review. The following statement of facts is based on that of the Court of Appeals:

Tosh lived with his wife and their three daughters. His 16-year-old daughter, K.T., testified that when she went upstairs to ask her father to put shelves in her bedroom, Tosh pushed her into a closet and told her to take her clothes off. When she refused, Tosh closed the door and locked her in the closet for approximately a minute. He opened the door and again asked K.T. to take off her clothes. She complied.

Tosh blocked K.T.'s exit from the closet and asked her if anyone had ever licked her nipples or vagina. He did both and penetrated her vagina with his finger.

Hearing someone approach, Tosh told K.T. to get dressed. She did and then went downstairs to wash the dishes as Tosh had asked her to do.

Later that day, Tosh asked K.T. to come to the weight room to help him move weights. In the weight room, Tosh removed K.T.'s clothes and told her to sit on the weight bench. K.T. testified that Tosh inserted his penis into her vagina. He told K.T. he should be punished for what he did.

The next day K.T. went to her job at a fast-food restaurant. When she finished work at 5 p.m., she called her parents and told them she had to work late. She went to her boyfriend's house and told him what had taken place with Tosh the day before. She decided to make a report to the police.

At the police station, K.T. was interviewed by Detective Diane George, who testified that K.T. appeared to be nervous and frightened during the interview. K.T. told George about two incidents in addition to what had happened the day before. K.T. told George that when she was 8 years old Tosh had asked her to hold his penis and that when she was 13 he put her hand down his pants to touch his penis.

When Detective George interviewed Tosh, he said that he had shut K.T. in the closet, had touched her breasts, and had penetrated her vagina with his finger. He also acknowledged a second incident in the weight room. He said, however, that his penis only touched K.T.'s vagina. Tosh recalled the incident when K.T. was younger when he had asked her to hold his penis.

A portion of George's interview of Tosh was recorded. It was played for the jury.

Tosh testified at trial that he did not recall his interview with Detective George. He also testified that during the time of the relevant incidents, he was taking approximately 180 to 280 tablets of over-the-counter ephedrine each day.

The sole issue before this court is whether the prosecutor's conduct was improper and denied Tosh a fair trial. Tosh complains of four separate instances of misconduct by the prosecuting attorney, F. William Cullins, during the trial. A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error, that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. The facts of each case must be scrutinized in determining whether a prosecutor's remarks deny the defendant a fair trial. If the prosecutor's statements rise to the level of violating a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs without regard to a contemporaneous objection. State v. McHenry, 276 Kan. 513, 522, 78 P.3d 403 (2003).

Cross-examination of Heath. Richard Heath was a defense witness. He testified on direct examination that his family and Tosh's family were close and that Tosh had a close relationship with K.T. He recounted one occasion when Tosh's drug use affected his memory.

On cross-examination, the prosecutor asked whether Heath was aware of the allegations against Tosh. Heath answered that he was. The prosecutor then said, "Well, we've rested our case, so we've proven that he raped his daughter, kidnapped his daughter and raped her again. You're aware of that, right?" Defense counsel's objection was sustained. The prosecutor continued his questioning by asking again whether Heath was aware of the allegations against Tosh and then asking when he became aware of them.

Although no curative instruction was requested, Tosh argued that the trial court should have given one. The Court of Appeals seems to have concluded that no instruction specific to this cross-examination was necessary, at least without a request for one. The Court of Appeals also noted that "the jury was later instructed that statements, arguments, and remarks of counsel were not evidence and should be disregarded if not supported by evidence and that the State had the burden of proof."

Tosh argues that the general instruction that counsel's statements are not evidence and should be disregarded if not supported by the evidence was ineffective because the prosecutor remarked on the legal effect of the State's evidence rather than on the evidence. Tosh contends that it was not enough for the trial court to sustain the objection without instructing the jury that he was presumed innocent until the jury determined that the State had met its burden of proving him guilty. An instruction on the presumption of innocence might have been appropriate at the time, but no authority for its being required has been cited by Tosh. When the case was submitted to the jury, it was instructed as follows: "The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty."

The Court of Appeals noted that the prosecutor's statement amounted to telling the jury that the State had satisfied its burden of proof on the charges of rape and aggravated kidnapping. It further noted that such an assertion in the form of a question to a witness is improper. Although not directed to the jury, it was obviously an attempt to prejudice the defendant and constitutes prosecutorial misconduct.

Intention to plead guilty. The second instance of alleged prosecutorial misconduct occurred during the prosecutor's cross-examination of the defendant:

"Q. Now, can you provide the jury with any reason why [K.T.] would indicate these things happened when they didn't?

"A. No, sir, I can't.

"Q. In fact, she's your daughter and she's a pretty good girl, right?

"A. Yes, she is.

"Q. Now, in the past, haven't you told your wife that you were just going to plead guilty to these things?

"A. No, I have not.

"Q. Are you sure, Mr. Tosh?

"A. (Shaking head).

"Q. Or is your memory being selective again?

"A. It's not being selective. I have not ever told her I was going to plead guilty to this.

"Q. Have you ever told her that you were guilty of these things?

"A. No, sir, I have not."

With regard to Tosh's complaints about this exchange, the Court of Appeals stated the following:

"Tosh argues that evidence of plea negotiations or discussions is inadmissible. See State v. Peckham, 255 Kan. 310, 331, 875 P.2d 257 (1994) (evidence of plea negotiations for pending drug charges was inadmissible to prove defendant's guilt in the drug cases; however, plea negotiations were admissible in murder trial as evidence of motive, intent, and preparation). In State v. Lomax & Williams, 227 Kan. 651, 655, 608 P.2d 959 (1980), our Supreme Court did not allow evidence of plea negotiations to be used when cross-examining a witness since the plea had not been accepted and there was no conviction, as required by K.S.A. 60-421. Here, the prosecutor did not ask Tosh about plea negotiations with governmental authorities; nonetheless, the prosecutor knew or should have known if any plea agreement existed.

"Tosh raises this argument in the context of prosecutorial misconduct, where a timely objection is not necessary in order to preserve the issue for appeal when the error rises to the level of denying a defendant his right to due process. Nevertheless, this argument is more of an evidentiary issue than a prosecutorial misconduct issue. Although the prosecutor's query regarding Tosh's expressed desire to plead guilty may have been an improper attempt to introduce evidence of plea negotiations, no objection was raised and the questioning was limited in duration.

As is well noted, a timely and specific objection to the admission of evidence at trial must be made in order to preserve that issue for appeal. State v. Barksdale, 266 Kan. 498, 511, 973 P.2d 165 (1999)." Slip op. at 8-9.

According to Tosh the questions were intended to mislead the jury into thinking that, because he told his wife he would plead guilty, he was guilty. Tosh points out that the prosecutor's pursuing the issue after Tosh's initial negative answer gave the jury the impression that the prosecutor had a factual basis for his questions. The State, however, has neither supplied a factual basis for the...