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State v. Dixon6/3/2005
and comments to draw incriminatory inferences from defendant's constitutional right under the Fourteenth Amendment to employ counsel as an element of the right to a fair trial. We further agree with the Maryland court that such evidence of "obtention or attempted obtention of a lawyer or legal advise" is irrelevant and inadmissible.
The remaining question is whether the conduct prejudiced the jury against the accused and denied him a fair trial. This step requires a particularized harmlessness inquiry for prosecutorial misconduct cases, as stated in Tosh, 278 Kan. 83, Syl. 1. We consider three factors:
"(1) Whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of jurors. None of these factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967), have been met." Tosh, 278 Kan. 83, Syl. 2.
Viewing the prosecutor's conduct in light of the trial record as a whole, as required, we find that the prosecutor's eliciting testimony from multiple witnesses and then commenting on it in closing argument improperly highlighted defendant's conduct for the jury on five separate occasions. The prosecutor's repeated references to defendant's contacting counsel certainly appears to have been intended to imply that only guilty people contact their attorneys and to cause the jurors to infer guilt on that basis. In these circumstances, the prosecutor's conduct amounted to a flagrant violation of Dixon's right to a fair trial in that the conduct penalized him for exercising his right. The jury could have found, based on other evidence, that Dixon was guilty. The jurors, however, also might have decided Dixon was guilty because the prosecutor implied that defendant must be guilty by repeatedly eliciting testimony and commenting on defendant's contacting counsel. Under such circumstances we cannot conclude that such error was harmless.
5. DISTRICT COURT'S REFUSAL TO GRANT DIXON'S MOTION FOR MISTRIAL.
Defendant requested a mistrial after hearing the testimony of Dr. Mario Gomez. The motion was overruled.
The trial court may declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant. K.S.A. 22-3423(1)(c). Declaration of a mistrial is a matter entrusted to the trial court's discretion, and the decision will not be set aside on appeal unless an abuse of discretion is clearly shown. The defendant has the burden of proving that he or she was substantially prejudiced. State v. Deal, 271 Kan. 483, Syl. 2, 23 P.3d 840 (2001).
On appeal, Dixon contends that his defense was hampered when Gomez testified inconsistently with his written report because in hiring experts Dixon relied on Gomez' written report. During discovery, Dixon received a written report from Gomez stating that there were two possible sources for the gas leak--a burner of the stove or a break in the flexible hose connecting the range to the wall outlet. At trial, Gomez testified that he did not mean just the flexible hose, "Actually, what I meant is a complete assembly that is now Exhibit 70, not the flexible part because I already see the flexible part and it's intact, so there's nothing there I can say would help me. I was referring to the assembly of the flexible pipe, the tube plus the pipe."
In support of th
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
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