 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Dixon6/3/2005
oned Agent Halvorsen. The State contends that the objective of the examination was to refute defendant's alibi, and the State asserts that testimony concerning defendant's visit to Johnson entirely contradicted his alibi. The State's point is not well taken for several reasons. First, the objection was to questions that elicited Halvorsen's testimony about defendant's telephone calls to his attorney, not the visit to Johnson. In addition, defendant's alibi was an account of where he was during July 28-29, not of his visit to his attorney's office several days later.
Having failed with a relevance objection, defense counsel objected to questions to Rios and Griffin on the ground that it was improper for the prosecutor to attempt to elicit information about defendant's contacts with his attorney. On appeal, Dixon frames the issue as one of prosecutorial misconduct.
Pointing out that an objection must be timely and specific in order to preserve an issue for appeal, see State v. Diggs, 272 Kan. 349, 365, 34 P.3d 63 (2001), the State argues that the only effective objections were made to the prosecutor's questioning of Rios and Griffin, who did not testify that defendant had an attorney-client relationship with Johnson. Although the jury reasonably could have inferred from Rios' testimony about her presence at the meeting at Johnson's office that Johnson was her son's attorney, the questions asked of Rios did not expressly identify Johnson as the defendant's lawyer or ask Rios to so identify Johnson. But Griffin was asked and testified about Johnson being defendant's lawyer. Thus, the jury heard during the questioning of Griffin that he viewed Johnson as Dixon's attorney. More importantly, the establishment of an attorney-client relationship is not an aspect of the issue before us, which is whether the prosecutor's questioning of witnesses about Dixon's contacting an attorney shortly after the incident improperly implied defendant's guilt.
It does not matter whether the objection was to the lack of relevance or otherwise because the rule followed by this court for issues of prosecutorial misconduct maintains the same standard of review whether or not an objection was made at trial. See State v. Davis, 275 Kan. 107, 122, 61 P.3d 701 (2003).
The parties cite no Kansas cases involving a prosecutor's questioning witnesses in order to elicit information about a defendant's contacting his or her attorney. Foreign cases cited by Dixon include the following: United States v. Liddy, 509 F.2d 428, 444 (D.C. Cir. 1974); United States ex rel. Macon v. Yeager, 476 F.2d 613, 615 (3d Cir. 1973); McDonald, 620 F.2d at 564; Zemina v. Solem, 438 F. Supp. 455, 466 (S.D. 1977); People v. Schindler, 114 Cal. App. 3d 178, 189, 170 Cal. Rptr. 461 (1981); Riddley v. State, 777 So. 2d 31, 34-35 (Miss. 2001).
The standard of review generally applied in the foreign cases cited by Dixon is that for constitutional error. In such a review an appellate court considers whether improper references to a defendant's contacting his or her counsel were harmless when measured by a harmless-beyond-a-reasonable-doubt standard. Chapman v. California, 386 U.S. 18, 24, 17 L.Ed. 2d 705, 87 S.Ct. 824, reh. denied 386 U.S. 987 (1967). The standard of Chapman has long been the standard applied by Kansas appellate courts for constitutional error. See State v. Faidley, 202 Kan. 517, 522, 450 P.2d 20 (1969). There is a current statement of that standard in State v. Thompkins, 271 Kan. 324, 335, 21 P.3d 997 (2001):
"An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable do
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Kansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|