Opinion
No. 106,850.
2013-08-2
STATE of Kansas, Appellee, v. William J. HAYNES, Appellant.
Appeal from Sedgwick District Court; Benjamrn L. Burgess, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, or appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Benjamrn L. Burgess, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, or appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant William J. Haynes appeals the verdict of a Sedgwick County District Court jury convicting him of aggravated robbery on the twin grounds that the prosecutor's comments in closing argument unfairly tainted the trial and that he was not present when, during deliberations, the jury reviewed a video recording of the crime admitted as evidence during the trial. We find no reversible error in either respect and, therefore, affirm the conviction.
Factual Background and Procedural History
The material facts surrounding the robbery may be briefly stated given the issues on appeal. About noon on October 24, 2009, a man wearing blue jeans and a hooded sweatshirt entered a liquor store in Wichita. Ashley Martin, the clerk, recognized the man as a regular customer who had been in 10 to 20 times before when she was working. Martin testified she got a good look at the man's face before he pulled a makeshift mask over his eyes and nose as he approached the counter. The man then brandished a handgun and demanded the money in the register. Martin complied, and the robber left. Martin immediately tripped the store's alarm and called the police. The incident was recorded on the store's security video system.
Martin was across the counter from the robber and saw him in good lighting. She said she remained calm until he pulled out the gun. Martin told the police the robber wore a blue sweatshirt; the video shows the garment to have been gray. The police lifted three fingerprints from around the door of the liquor store. Two of them were matched to Manuel Breedlove, an individual whose identification photo and related information bore no similarity to Martin's description of the robber or the visual image captured on the security video, according to Wichita Police Department Detective Dan Binkley. So Binkley did not follow up on Breedlove as a suspect. The third fingerprint was never matched.
Several months later, Haynes' name surfaced as a suspect in the robbery. On January 8, 2010, Binkley showed a photo array to Martin. She selected the photo of Haynes as the robber and again noted he had been a regular customer at the store.
Martin's testimony and the security video were key aspects of the evidence against Haynes at trial. The case took barely more than a single day to present, and Haynes did not testify. The video was admitted as an exhibit without objection. It is about 45 seconds long and simultaneously shows views from four security cameras inside the store. The robber is shown with his mask on. But his hands, eyes, and ower face are visible. During her testimony, Martin provided a frame-by-frame narrative of the video for the jurors. Binkley testified about his investigation, including the fingerprints and his quick review and elimination of Breedlove as a suspect. Binkley told the jurors Breedlove was a dark complexioned African–American—the robber plainly does not match that description.
Following closing arguments of counsel, the district court told the jurors that the exhibits admitted during the trial would be delivered to the jury room. The district court pointed out that the security video was on a CD and told them, “If needed we can provide a computer on which you can play that.” During their deliberations, the jurors did indeed ask to look at the security video again. After discussing the request with the prosecutor and Haynes' lawyer, the district court provided the video for the jurors. The district court cued up the video on a computer in the courtroom and allowed the jurors to watch it there. The record reflects only the jurors were present for the actual replay of the video and the courtroom was locked so no one could wander in. Neither lawyer objected to the way the district court handled the request. Shortly after the replay, the jurors reached their verdict convicting Haynes of aggravated robbery. The record is unclear as to whether the jurors returned to the jury room after reviewing the video or continued their deliberations in the closed courtroom.
The district court imposed a 221–month sentence on Haynes consistent with the sentencing guidelines. Haynes has timely appealed.
Issues on Appeal
As we indicated, Haynes raises two issues on appeal. He first challenges how the district court responded to the jury's request to see the security video during its deliberations. He also says remarks the prosecutor made dur ng closing argument amounted to misconduct depriving him of a fair trial. We take up those points in that order, as Haynes briefed them. Jurors' Review of Security Video During Deliberations
Haynes contends his absence while the jury viewed the security video during deliberations violated his rights and rendered the trial unduly prejudicial. The parties briefed the issue before the Kansas Supreme Court's recent decision in State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013), that addresses the display of evidence to a deliberating jury. Although Herbel necessarily guides our analysis, that case differs from the circumstances here in several material respects.
As we understand Haynes' contention, he argues he had both constitutional and statutory rights to be physically present in the courtroom while the deliberating jurors watched the security video. Haynes suggests his presence would have allowed the jurors to compare the images of the robber on the security video to him as he sat in the courtroom during their review. Haynes does not otherwise complain about the district court's response to the jurors' request.
There are no factual disputes bearing on the circumstances surrounding the replay of the video for the jurors, e.g., the State doesn't contend that Haynes actually was present during the replay. Everybody agrees only the jurors were in the courtroom then. And Haynes does not argue he was absent for any material discussion with the district court leading up to the replay. The record indicates both he and his lawyer were present when the district court explained to the jurors how the replay would be handled. The district court did not communicate with the jurors after they looked at the security video. The issue Haynes has framed, therefore, presents a question of law.
Under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, a defendant in a criminal case has the right to the present at critical stages of the prosecution, particularly when his or her presence may advance his or her defense against the charges. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987); Herbel, 296 Kan. at 1111 (right to be present at critical stages of trial). That confluence of constitutional rights effectively has been codified in K.S.A. 22–3405(1), entitling a defendant charged with a felony to “be present.. at every stage of the trial.” See State v. Engelhardt, 280 Kan. 113, 122, 119 P.3d 1148 (2005) (K.S.A.22–3405(1) recognized to be “analytically and functionally identical to” constitutional right of criminal defendants to be present at any critical stage of proceedings against them). In addition, the Kansas Code of Criminal Procedure specifically addresses district court responses to inquiries from deliberating juries about relevant law or review of exhibits admitted at trial. K.S.A. 22–3420(3). That statute provides, inpertinent part:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the ... evidence arising in the case, they may request the officer to conduct them to the court, where the ... evidence shall be ... exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.” K.S .A. 22–3420(3).
Given the Kansas Supreme Court's extensive treatment of responses to inquiries from deliberating juries in Herbel, we begin there. In that case, Defendant Herbel was on trial for sex crimes against a child. He had given a videotaped interview to law enforcement officers that contained highly incriminating admissions. He also provided a similar written statement. The prosecution played the videotape during its case against Herbel, and both the videotape and the written statement were admitted into evidence. During deliberations, the jurors wanted to review parts of the videotaped interview.
The district court met with the jurors in the courtroom and asked the presiding juror to describe what they wanted to look at. Those portions of the interview were replayed for the jurors. The district court then asked the presiding juror if the replay was sufficient or if there were other portions of the interview they wished to see. The presiding juror indicated the jurors had seen what they needed. The jury returned a split verdict about 25 minutes later convicting Herbel of one count of rape and one count of aggravated indecent liberties with a child while acquitting him of a second count of rape. One of Herbel's points on appeal was the district court's handling of the jurors' request to view portions of the videotaped statement.
At the outset of its legal analysis, the Kansas Supreme Court noted that the record was silent as to whether Herbel or his lawyer was present during the district court's communication with the jurors about the videotaped interview and the replay of the requested portions of the interview. The court recognized that without an affirmative statement on the record that a defendant is present or some equivalent indication, such as the defendant's own remarks appearing in the transcript, a reviewing court must conclude the defendant to be absent. Herbel, 296 Kan. at 1107–08; see State v. Adams, 292 Kan. 151, 163, 254 P.3d 515 (2011).
The court reiterated that a district court's communication with or in the presence of a jury amounts to a critical stage in a criminal prosecution. Herbel, 296 Kan. at 1108–09; see State v.. Davis, 284 Kan. 728, Syl. ¶ 2, 163 P.3d 1224 (2007). Accordingly, a defendant must be present in person and through counsel for that communication consistent with constitutional rights to due process and trial by jury as secured in the Fifth, Sixth, and Fourteenth Amendments. The Sixth Amendment protection rests on the right to jury trial and, in particular, to confront witnesses. State v. Mann, 274 Kan. 670, 680, 56 P.3d 212 (2002). The Fifth and Fourteenth Amendments insure a defendant's due process right to be present at those stages of a prosecution necessary for “a fair and just hearing” of the case. 274 Kan. at 680. A defendant has a corresponding statutory right to be present under K.S.A. 22–3405(1), as the court noted. Herbel, 296 Kan. at 1107–09.
The Herbel court found that the district court's discussion with the jurors about what they wanted to see and the sufficiency of the replay an counted to a critical stage in the proceedings. 296 Kan. at 1109. Because Herbel was not present, the court treated the challenge as one of constitutional error under State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012), requiring reversal unless “ ‘the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.’ “ Herbel, 296 Kan. at 1110. After placing the burden on the State, as the party benefiting from the error, the court analyzed the constitutional violation based on the district court's communication with the jurors rather than the actual display of the video statement outside Herbel's presence. The court applied the factors outlined in State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 (1998), for assessing the prejudicial impact of a district court's communication with a sitting jury outside the presence of the defendant or defense counsel. The court found the constitutional error in Herbel to be harmless. 296 Kan. at 1110–15.
In addition, the court found that Herbel's independent statutory right under K.S.A. 22–3420(3) was violated. The court held that when jurors ask to see evidence during deliberations, the statute requires the evidence be “exhibited to them” in the defendant's presence. And that didn't happen in Herbel's case. The videotaped statement was displayed to the jury in the courtroom in the judge's presence. But Herbel wasn't there. Herbel, 296 Kan. at 1109. The error impaired a statutory right, so the reviewing court had to “determine if there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record,” as outlined in Ward, 292 Kan. 541, Syl. ¶ 6. Although the State also bore the burden of proving harmlessness on the statutory violation, the court did not independently analyze that error. The court effectively concluded that the result could not be any different because the standard of review for statutory error imposed a less demanding burden on the State than the standard for the constitutional violation found to be harmless. See Herbel, 296 Kan. at 1110–11.
In Herbel, the Kansas Supreme Court rejected the “approach” it took about a dozen years earlier in State v. Bolton, 274 Kan. 1, 49 P.3d 468 (2002), in deciding whether videotaped evidence had been appropriately displayed to a deliberating jury. Herbel, 296 Kan. at 1108. The court abandoned the reasoning of Bolton but didn't question the ultimate finding that no error occurred. In Bolton, the deliberating jurors asked for equipment to replay a security video of the crime—a murder-robbery—that had been admitted in evidence during the trial. In consultation with the lawyers, the district court provided the equipment so the jurors could look at the video in the jury room. The Bolton court held that “a jury's second viewing of exhibits admitted into evidence is not subject to the requirements of K.S A. 22–3420(3).” Bolton, 274 Kan. at 6. That broad holding is difficult to reconcile with the statutory language and may be the approach the Herbel court found objectionable. The Bolton decision also suggested a recorded exhibit, such as the security video, is essentially immutable and, thus, different from a readback of trial testimony that may be subject to inflections and emphasis the reader supplies, Bolton, 274 Kan. at 6—a position the Herbel court found to be wholly unpersuasive in applying K.S.A. 22–3420(3). Herbel, 296 Kan. at 1108–09. And, in turn, the Herbel court rejected the State's reliance on Bolton as authority for the proposition that the district court did not err in the way it permitted the jurors to review Herbel's videotaped statement. 296 Kan. at 1108–09. But the Herbel court did not overrule the outcome in Bolton, only aspects of its rationale. Thus, Herbel neither holds nor suggests that providing equipment to deliberating jurors so they may replay recorded evidence in the jury room violates K.S.A. 22–3420(3).
Although the parties here did not cite the Mann decision, it is also instructive, if considerably less elaborate than Herbel. (Nor did the Herbel court discuss Mann.) The facts in Mann are comparable to those in Bolton. The deliberating jurors asked for equipment to review a video of the crime scene that had been admitted as evidence in the murder prosecution. The district court discussed the request with counsel, but Mann was not present. They agreed to send viewing equipment and a redacted video, excising unrelated material on the original exhibit not shown during the trial, to the jury room. On appeal, Mann challenged how the district court responded to the jurors' request. Pertinent here, the Mann court cited K.S.A. 22–3420(3) and suggested no error in the mechanics of how the jurors reviewed the videotape—with equipment for the replay being sent to the jury room. 274 Kan. at 680, 686. Mann obviously was not present when the jurors then reviewed the video.
The court also found no constitutional or statutory error in Mann's absence from the in-chambers conference between the district court and counsel because that was not a critical stage in the case and the decision allowing the deliberating jurors to review an exhibit already admitted in evidence did not undermine the tial process. Nor would Mann's presence have enhanced the fairness of that process. Mann, 274 Kan. at 686. Other courts have reached comparable determinations regarding matters of procedure. See United States v. Barth, 424 F.3d 752, 762–63 (8th Cir.2005) (no error in defendants' absence from conference between judge and lawyers pertaining to court's voir dire practice, production of witness and exhibit lists, length of time for opening statements, and comparable procedural matters); United States v. Shukitis, 877 F.2d 1322, 1329–30 (7th Cir.1989) (no error in defendant's absence from in-chambers conference between judge and lawyers regarding possible violation of order requiring sequestration of witnesses). And that aspect of Mann is inapposite here, since Haynes and his lawyer were present when the district court explained the procedure for the video replay, and different from Herbel, where the district court communicated with the jurors outside the presence of the defendant and counsel.
Based on the guiding precedent of Herbel and Mann, we find no constitutional error in Haynes' absence from the courtroom when the jurors viewed the security video during their deliberations. Only the jurors were present. Under those circumstances, the jurors' review of the video was not a critical stage of the prosecution or the trial at which Haynes had a constitutional right to be present personally or through counsel. The basic purpose for the defendant's presence is to allow contemporaneous consultation with counsel about the examination of witnesses—the right of confrontation—and other matters on which that discussion might advance the defense of the case—the right to due process. Additionally, the personal presence of a defendant allows him or her to see directly that the process is being conducted fairly.
Here, Haynes and his lawyer were present when the district court responded to the jurors' request to review the security video and then explained the process that would be followed in facilitating that request. Unlike the district court in Herbel, the district court here never communicated with the deliberating jurors outside Haynes' presence. From the description in the Herbel decision, it appears the district court in that case talked with the jurors about what portions of the videotaped statement they wished to replay, remained in the jurors' presence during the replay, and then asked if they wanted to see any other portions of the statement—all in the absence of the defendant.
Nothing like that happened here. The jurors reviewed the security video in complete privacy. In effect, the courtroom simply became an extension of the jury room as the jurors looked at the video. A defendant has no constitutional right to be present in the jury room during deliberations. We fail to see any tangible difference here.
Haynes' argument that he should have been present so the jurors could compare him to what they were seeing again on the security video may be clever, but it does not capture a constitutional violation. That is not one of the reasons a defendant has a constitutional right to be present at trial. Moreover, the jurors had ample opportunity to observe Haynes during the trial itself and to compare his appearance to the images on the video as it was played then. While the trial, from voir dire through closing argument, lasted a little more than a day, the jurors asked to review the security video only an hour or two into their deliberations. It was not as if their collective memory of Haynes had grown dull as they wrangled for days over a verdict.
In short, the jurors' review of the video in this case was not a critical stage of the prosecution at which Haynes' presence was constitutionally required. In turn, his absence did not create a constitutional error. For the same reason, there was no violation of K.S.A. 22–3405(1), since the right to be present protected in that statute is legally indistinguishable from the constitutional protections. See Engelhardt, 280 Kan. at 122.
Haynes' claim of error under K.S.A. 22–3420(3) presents a closer question in light of Herbel. The discussion in Herbel could be read to say the district court, counsel, and Haynes should have been present in the courtroom while the jurors looked at the security video. The jurors asked to be “informed” about the evidence, and the statute requires that the evidence be “exhibited to them” in the defendant's presence. See K.S.A. 22–3420(3). But, unlike Herbel, the district court arranged for—and counsel didn't object to—the jurors reviewing the video in private, albeit in an otherwise closed courtroom rather than in the jury room.
As is the common practice in Kansas courts, the exhit its admitted in this case were sent to the jury room at the start of the deliberations. The jurors could study those exhibits as they chose to during their deliberations without triggering any of the procedures outlined in K.S.A. 22–3420(3). In other words, Haynes had no statutory right to sit in the jury room and watch as the jurors examined the exhibits there. The exception was the security video—not because it was withheld from the jurors but because they could not actually view the CD without a computer. So to peruse the video, the jurors had to make a request for access to a computer. Once the district court set the jurors up in the courtroom to review the video, Herbel suggests Haynes' right to be present under K.S.A. 22–3420(3) came into play. Had the parties agreed to send the computer to the jury room, however, the circumstances would have been factually more like Mann and Bolton. The Mann decision suggests a defendant has no right under K.S.A. 22–3420(3) to be present in the jury room simply because equipment to facilitate review of the exhibits has been given to the jurors. And Herbel does not hold otherwise. As we have noted, the procedure used here effectively turned the courtroom into a closed jury room.
To suggest K.S.A. 22–3420(3) applies because the jurors came to the computer but that it would not if the computer went to the jurors seems to be a tinselly distinction. The application of statutory rights ought not turn on distinctions that present no discernible legal differences. For that reason, Herbel might well be distinguishable on its facts from what we consider here. That seems particularly true given the district court's continued presence and interaction with the jurors in Herbel as they reviewed the videotaped statement in open court. Similarly, K.S.A. 22–3420(3) presumably would not have been implicated at all if the district court had provided both the CD of the liquor store security video and a computer to the jurors at the start of their deliberations, obviating the need for them to request a replay later.
The tenor of K.S.A. 22–3420(3) suggests the statute is directed at exhibits admitted at trial but not delivered to the jurors in the jury room at the start of deliberations. The statute refers to evidence to be “read” or “exhibited” to deliberating jurors upon their request. K.S.A. 22–3420(3). The term “read” refers to a readback of trial testimony from the court reporter's notes, something the jurors would not otherwise have. Similarly, the jurors would not need to have “exhibited” for them papers, photographs, and other objects admitted at trial and already delivered to the jury room. We suppose the legislature would have been aware of the customary practice in sending admitted trial exhibits to the jury room for deliberations and would have enacted K . S.A. 22–3420(3) in light of that practice. See State v. Grauerholz, 232 Kan. 221, 224, 654 P.2d 395 (1982) (noting the “normal practice” of providing exhibits to jurors at the start of deliberations). In some instances, however, a district court might not send all of the admitted exhibits to the jury room. Some might be dangerous (a double-bladed axe) or especially bulky (a bloodstained mattress upon which a murder victim was slain or a shattered door the murderer broke down to get to the victim). If the jurors wished to examine those sorts of items during deliberations, they presumably would be “exhibited” in the courtroom. Absent agreed upon procedures, such as here, to seal the courtroom to everyone but jurors, K.S.A. 22–3420(3) would undoubtedly apply to that presentation.
Apart from those considerations, Haynes at least arguably “voluntarily absent [ed] himself” from the jurors' review of the security video within the meaning of K.S.A. 22–3420(3). Haynes was present as the district court outlined the procedure that would be used. Neither he nor his lawyer objected. And he, along with everyone but the jurors, left the courtroom. The statute permits a defendant to relinquish the right to be present as deliberating jurors examine evidence. We suppose on fairly good authority, however, that a defendant personally must make that decision knowingly and deliberately. State v. Acree, 22 Kan.App.2d 350, 353–54, 916 P.2d 61,rev. denied 260 Kan. 995 (1996). Nothing in the record suggests Haynes explicitly waived his rights protected in K.S.A. 22–3420(3).
For us, then, the path of least resistance is to assume the district court's approach here violated Haynes' statutory right to be present when a deliberating jury requests a review of evidence. We make that assumption without arriving at a formal decision to that effect. As the Herbel court noted, the presumed violatior implicates a statutory right rather than a constitutional one. So we ask whether there was a reasonable probability the error affected the verdict, recognizing the State bears the burden of proof. We conclude not.
The presence of a defendant (and counsel and the district court, for that matter) while jurors review evidence displayed in response to their request during deliberations largely serves as a safeguard on the overall trial process. That is, the defendant may see that the process has been conducted fairly and may lodge an objection if it appears otherwise. Here, there is no indication anything improper happened, and Haynes makes no suggestion of real or even apparent impropriety on the part of any of the players. We find no substantive basis to say the presumed error in allowing the jurors to review the security video in Haynes' absence had any effect on the outcome of the case. A contrary conclusion would depend on empty speculation rather than reasoned probabilities.
We discount Haynes' notion that the jurors should have been required to eyeball him and the video simultaneously during their deliberations. That is plainly not the purpose of K.S.A. 22–3420(3), since it applies to all exhibits not merely those depicting the perpetrator of the crime. But even if his notion were the law, the error still would be harmless. As we noted, the jurors had ample opportunity to do just that the day before during the trial. And they saw Haynes in the courtroom just before they reviewed the security video during their deliberations—he was present when the district court explained the process to the jurors. Haynes' continued presence in the courtroom during the replay of the security video could not have altered the jurors' decision under those circumstances. Prosecutor's Closing Argument
For his second issue, Haynes contends the prosecutor made two improper statements in the rebuttal portion of his closing argument to the jury. Haynes submits that either alone or both taken together deprived him of a fair trial.
To place the first of the prosecutor's remarks in context, we point out that Haynes' lawyer suggested in closing argument that Breedlove might actually have been the robber and that the State should have produced the identification photo of him to corroborate Det. Binkley's testimony that Breedlove is African–American. Haynes' lawyer argued to the jury that the State's failure to do so created a reasonable doubt. The argument trades on the implicit assumption that Det. Binkley falsely targeted Haynes rather than going after Breedlove as the real culprit.
In a portion of the State's rebuttal argument, the prosecutor responded to that suggestion as follows:
“What reason in the world would Detective Dan Binkley have for coming in here and saying I looked at Mr. Breedlove's ... photograph, he was dark skinned, he was young, he did not fit what I saw in the video? You know, there's absolutely no evidence that Detective Binkley knew William Haynes, knew anything about William Haynes and certainly nothing that would suggest that he had a reason to come in here and say you know, I looked at that photograph, I looked at the video and the two people weren't even close. Why would he say that? Doesn't make sense, it doesn't pass the common sense or the smell test. And whether or not we show you a picture of Mr Breedlove, doesn't make any difference, it doesn't create a reasonable doubt.”
On appeal, Haynes contends the prosecutor improperly expn ssed a personal opinion that Det. Binkley was credible or otherwise essentially vouched for him as a truthful witness. See State v. Hart, 297 Kan. ––––, 301 P.3d 1279, slip op. at 15 (June 7, 2013) (Simply put, “[i]t is improper for prosecutors to offer juries their personal opinions on the credibility of witnesses.”).
The second argument Haynes assails dealt with a separate issue—assessing the eyewitness testimony of the liquor store clerk. The prosecutor told the jury:
“And I would suggest to you, ladies and gentlemen, that if you do not believe that a person of reasonable intelligence and observation powers can make an ... accurate identification under those circumstances, then I would suggest to you that you must believe that you cannot make such an identification under any circumstances. And we all know that that's simply not true.”
The district court included a jury instruction outlining a series of factors to be used in evaluating the accuracy of eyewitness testimony. The instruction amalgamated some factors in PIK Crim.3d 52.20 with some in State v. Hunt, 275 Kan. 811, 817–18, 69 P.3d 571 (2003). Haynes does not take issue with the content of the instruction itself. Rather, he contends the prosecutor's argument misstated the law by contradicting or discrediting the jury instruction on eyewitness identification. See State v. Magallanez, 290 Kan. 906, 915, 235 P.3d 460 (2010) (error for prosecutor to materially misstate the law in arguing to a jury).
Before addressing Haynes' contentions, we outline the standard for evaluating prosecutorial misconduct in jury argument. This court recently recapitulated that standard:
“Appellate review of alleged prosecutorial error in argument to a jury entails a two-step analysis. First, the appellate court must decide whether the comments fall outside the wide latitude afforded a prosecutor in discussing the evidence and the law. Second, if the prosecutor has exceeded those bounds, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury to the extent the defendant was denied a fair trial. State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009) (outlining mode of analysis); see State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009) (noting considerable range permitted advocates, including prosecutor, in arguing their causes in jury summations).” State v. Schreiner, 46 Kan.App.2d 778, 793–94, 264 P.3d 1033 (2011), rev. denied 296 Kan. –––– (2013).
We must review “counsels' remarks in jury summations in light of the overall thrust of the point being made rather than as isolated snippets removed from the surrounding commentary—commentary that often lends material shading and depth to what might otherwise appear to be of questionable propriety standing alone.” 46 Kan.App.2d at 793; see State v. Naputi, 293 Kan. 55, 59–60, 260 P.3d 86 (2011). If the prosecutor makes an improper argument, an appellate court then deploys a three-part test to assess the magnitude of the harm and possible relief for the defendant:
“ ‘(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60–261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, [22,] 17 L.Ed.2d 705, 87 S.Ct. 824(1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial], have been met [Citations omitted.]” ‘ McReynolds, 288 Kan. at 323.
The Kansas Supreme Court recently reiterated that standard in State v. Hernandez, 292 Kan. 598, 603, 257 P.3d 767 (2011).
The prosecutor's first statement to the jury about Det. Binkley was not improper argument. Nowhere in the portion of the argument Haynes challenges did the prosecutor express or even imply a personal opinion about Det. Binkley's veracity. The argument can be sliced, diced, or otherwise dissected, and there simply wasn't a prohibited personal endorsement to be found. See, e.g., Hart, slip op. at 10, 16 (prosecutor's argument to jury—“ ‘What is relevant ... is whether ... you believe [the victim] [and] I think you should.’ “—held to be impermissible vouching); State v.. Weber, No. 102,572, 2010 WL 5139933, at *6 (Kan.App.2010) (unpublished opinion) (prosecutor's argument that “ ‘I believe the State of Kansas has put on ... credible witnesses” technically expressing improper opinion), rev. denied 292 Kan. 968 (2011). What the prosecutor did here was highlight the lack of evidence of any ulterior motive Det. Binkley could possibly have for ignoring Breedlove, if he had been a viable suspect, in favor of Haynes. That's a proper argument asking the jurors to draw a reasoned conclusion from the evidence or lack of it. See Hart, slip op. at 15.
The second statement also comes within the bounds of fair argument. The prosecutor simply argued that the jurors, based on the evidence, ought to conclude the liquor store clerk made an accurate identification of the robber and if they were to think otherwise, they would be saying an eyewitness could never do so. The prosecutor did not tell the jurors to disregard the instruction on eyewitness identification. Nor did he denigrate the factors outlined in the instruction. He effectively told the jurors that the liquor store clerk saw the robber under ideal conditions. So the jurors would have to conclude no eyewitness identification could be reliable to discount the clerk's testimony. The argument is a fair, if hyperbolic, comment on the evidence and in no way misstates the law or disparages the factors the district court gave to the jurors for gauging eyewitness testimony. See United States v. Thompson, 482 F.3d 781, 786 (5th Cir.2007) (“a bit of oratory and hyperbole” in explaining the evidence to the jury didn't render prosecutor's closing argument improper). Again, the prosecutor here asked the jurors to draw a reasoned conclusion from the evidence as to the accuracy of the clerk's identification of Haynes as the robber.
Because both of the prosecutor's statements came within the wide latitude afforded counsel in making their case to a jury, we do not engage the second level of the legal standard to measure the prejudicial impact of improper argument. There was no impropriety.
Affirmed.