State v. Zielienski, 083019 KSCA, 119, 793

Docket Nº:119, 793
Opinion Judge:PER CURIAM
Party Name:State of Kansas, Appellee, v. Rahdames S. Zielienski, Appellant.
Attorney:Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Judge Panel:Before Arnold-Burger, C.J., Bruns and Warner, JJ.
Case Date:August 30, 2019
Court:Court of Appeals of Kansas
 
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State of Kansas, Appellee,

v.

Rahdames S. Zielienski, Appellant.

No. 119, 793

Court of Appeals of Kansas

August 30, 2019

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; Benjamin L. Burgess, judge.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Bruns and Warner, JJ.

MEMORANDUM OPINION

PER CURIAM

Rahdames S. Zielienski appeals after a jury convicted him of aggravated kidnapping and aggravated battery. On appeal, Zielienski contends that the prosecutor made two misstatements during his opening statements that constitute prosecutorial error. He also contends that the prosecutor made an improper "golden rule" argument during his closing statement. Applying the standard of review set forth by the Kansas Supreme Court in State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016), we find no reversible error. Moreover, we conclude that there is no reasonable probability that any of the alleged errors by the prosecutor contributed to the verdict or denied Zielienski the right to a fair trial. Thus, we affirm.

Facts

On September 6, 2017, the State of Kansas charged Zielienski with aggravated kidnapping, aggravated battery, and aggravated assault. The charges arose out of incidents that occurred in August 2017. On August 19, 2017, Xavier Reyes was forced into a pickup truck by a man with a baseball bat, taken to an alley about five blocks away, punched in the face, and struck with the bat. The attacker told Reyes that he had until the next day to pay an outstanding debt relating to the sale of drugs that he allegedly owed.

The following day, Reyes received two messages on Facebook-from someone using the name "Sowhats Itgonb"-threatening to "finish what I started yesterday" if the alleged debt was not paid. The first message threatened that if Reyes attempted to "elude the situation," that the sender would "come back" and "spray that bitch up till everybody dead." In addition, the sender demanded that Reyes give him "the title to your whip or 1200 dollars if not may god watch over u and your family." Similarly, the second message stated that the sender was at Reyes' gravesite "getting it ready and for good old time sake I made 4 more holes for the fam." The sender also told Reyes to "tell your friends goodbye not your family cause they going with u."

The case proceeded to a jury trial on May 21, 2018. Prior to the start of trial, the district court took up several issues with counsel. One of the issues related to the use of the word "mugshot" when referring to a photo lineup. A review of the record reveals the following discussion occurred on the record: "[DEFENSE COUNSEL]: One other minor issue. The State-I anticipate the State presenting [a] photographic lineup. I understand why the State's doing it. The photographic lineup appears to be mugshots. I just wanted to make sure that the photographs are not referred to as mugshots or any reference made to a prior arrest or criminal history.

"[PROSECUTOR]: No objection.

"The Court: Very well."

After both the prosecution and defense counsel gave opening statements, the State presented the testimony of 6 witnesses and introduced 12 exhibits into evidence. After the State rested, Zielienski presented the testimony of his girlfriend who testified that he was with her on the days in question except for when either of them was at work. At the conclusion of the trial, the jury convicted Zielienski of aggravated kidnapping and aggravated battery but acquitted him of aggravated assault.

The district court denied a posttrial motion for judgment of acquittal and a motion for a new trial filed by Zielienski. However, the district court granted him a downward durational departure. Although Zielienski faced a presumptive prison sentence of 618 months based on his criminal history, the district court ordered him to serve concurrent sentences of 72 months for aggravated kidnapping and 13 months for aggravated battery Thereafter, Zielienski filed a timely notice of appeal.

Analysis

Issue Presented and Standard of Review

The sole issue presented on appeal is whether the State committed prosecutorial error that denied Zielienski the right to a fair trial. First, Zielienski argues that the...

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