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State v. Dixon6/3/2005
ubt. Thus, before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. [Citation omitted.]"
The State bears the burden of proving that a constitutional error was harmless beyond a reasonable doubt. See State v. Kleypas, 272 Kan. 894, 1084, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002).
Framing the issue as suggested by Dixon as a matter of alleged prosecutorial misconduct rather than strictly as constitutional error, however, would comport with Kansas precedent in which prosecutorial misconduct must involve a constitutional violation. In State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000), the court stated that " eversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant's constitutional right to a fair trial." As in Pabst, the claimed error may implicate a defendant's right to a fair trial under the Fourteenth Amendment. In other cases, other constitutional rights are implicated. For example, in State v. Higgenbotham, 264 Kan. 593, 600-03, 957 P.2d 416 (1998), the court analyzed a prosecutor's statement that defendant claimed was a comment on his failure to testify. And in State v. Williams, 268 Kan. 1, 6-7, 988 P.2d 722 (1999), the question was whether the prosecutor subverted the defendant's protection against double jeopardy.
As we have seen, for issues of prosecutorial misconduct, this court's standard of review is whether the error denied the defendant his or her constitutional right to a fair trial, and the court's review is the same whether an objection was or was not made at trial. Davis, 275 Kan. at 121-22. "The right to a fair trial is a fundamental constitutional right which the trial court has a duty to protect regardless of a defendant's failure to contemporaneously object." State v. Sperry, 267 Kan. 287, 308, 978 P.2d 933 (1999).
Dixon cites Schindler for its explanation of the harm caused by the introduction of evidence about a defendant's consulting with counsel. In Schindler, the defendant's conviction of killing her husband was reversed due to the prosecutor's attempt to rebut the defense of diminished capacity, i.e., a state of panic, by eliciting testimony of defendant's lucidity during an in-custody interview a few hours after the shooting. 114 Cal. App. 3d at 185-90. The evidence included the officer's statements that defendant declined to make any statement until talking with an attorney and "that he overheard defendant ask her friend who had come to the police station to see if she could get Mr. Geragos for her defense attorney." 114 Cal. App. 3d at 183. In argument, the prosecutor stressed defendant's invocation of her rights and her saying she wanted a lawyer as counter-indications of a panic state. In addition, the prosecutor made an issue of the particular lawyer defendant wanted. First, the prosecutor told the jurors that defendant wanted Geragos because he had prosecuted the deceased when the deceased had been charged with killing his former wife. Then the prosecutor suggested that defendant's naming Geragos rebutted her defense and undermined the credibility of her stating that she knew little about the death of the former wife. Defendant was represented by Geragos, and his motion for a mistrial on her behalf was denied. In final summation, the prosecutor stated to the jury:
"'The reason for bringing that statement in about Mr. Geragos is twofold: One, here is a woman that said she didn't know any of the circumstances about the death of Lou Schindler's previous wife, who just got smatters and pieces from people as she went along and who evidently s
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