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State v. Dixon6/3/2005
had been initiated. The State cites Liddy and Riddley as making attachment of the right to counsel the threshold requirement. The Liddy court, contrary to the State's assertion, did not conclude that the initiation of criminal proceedings was relevant to the analysis. Instead, it concluded that cases involving a prosecutor's commenting on a defendant's request for counsel upon arrest were not useful, based on Griffin, where the defendant's claim that the jury should not have been permitted to consider when and in what circumstances he contacted an attorney:
"Those cases, though containing language referring generally to the right to counsel, appear to be bottomed on considerations involving the rights of an accused facing police interrogation--a context in which the right to counsel is intimately bound up with the privilege against self-incrimination. They are thus of marginal value in ascertaining the applicability of Griffin to the Sixth Amendment claim raised in the present case." 509 F.2d at 443.
The Riddley court was evenly split between justices who concluded that Riddley's contact with his counsel was not constitutionally protected because it was made before the defendant's Sixth Amendment right to counsel attached and justices who believed that Riddley's contact with counsel was protected by the Due Process Clause of the Fourteenth Amendment. See 777 So. 2d at 34-36 (majority), 36-39 (dissent).
In State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000), the court prescribed a two-step analysis for alleged prosecutorial misconduct in closing argument. This test was refined in State v. Tosh 278 Kan. 83, 91 P.3d 1204 (2004). First, an appellate court decides whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence. Second, the court decides whether the remarks "constitute plain error, that is, whether the statements prejudiced the jury against the defendant and denied him or her a fair trial." Tosh, 278 Kan. 83, Syl. 1. The standard of review discussed and applied in Pabst also applies when the complaint is about a prosecutor's cross-examining a defendant. See Tosh, 278 Kan. 83, Syl. 1; State v. Dean, 272 Kan. 429, 439, 33 P.3d 225 (2001). No reason appears why the Pabst analysis should not also apply when the complaint is of a prosecutor's examining other witnesses and then commenting on their testimonies. In the context of the present case, the two-step analysis would be: First, the court decides whether the complained-of conduct was outside the considerable latitude given a prosecutor in eliciting testimony and commenting on it, and, second, the court decides whether the conduct was so gross and flagrant as to prejudice the jury against the accused and deny him a fair trial.
In this case of first impression for Kansas courts, defendant has relied on cases from other jurisdictions. Of those brought to the court's attention by Dixon and independent research, all but one concluded that eliciting testimony and commenting on a defendant's contacting counsel are beyond the latitude afforded the prosecution. Only the Mississippi court in Riddley concluded otherwise, and that court affirmed the defendant's conviction on an even split, with those favoring affirmance rejecting a Sixth Amendment claim and declining to consider the issue as a matter of fundamental fairness. All the other courts reasoned that a prosecutor is constitutionally precluded from eliciting testimony of a defendant's contacting an attorney and commenting on it on account of the potent tendency of the evidence and comment to serve improperly as the basis for an inference of guilt. We conclude that it was improper for the prosecutor by questions
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