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State v. Dixon6/3/2005
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"Q: After a couple of days later did you ever have an occasion to go to attorney Joe Johnson's office in Topeka --
"A: Yes.
"Q: -- with your son, the defendant, and others?
"A: I went to Joe --
[Defense counsel]: Your Honor, we would object to any attempt to secure legal counsel as evidence of guilt.
[Prosecutor]: Jerry Hall talked about it, Judge.
THE COURT: I'll allow the question.
"Q: Who was there?
"A: I was there. Well, not till later. My son was there, Jerry Hall, and a third guy, which later I found out was Griffin.
"Q: Ethan Griffin?
"A: Yes.
"Q: And you went in to see Mr. Johnson?
"A: Not -- later when they called me in there.
"Q: But you didn't initially talk or go in with your son, the defendant, Jerry Hall, and Ethan Griffin to talk to Mr. Johnson?
"A: No."
Ethan Griffin testified that he went to work early on the morning of July 29. Then he was asked and answered the following questions by the prosecutor:
"Q: Was there an occasion after that that you next saw the defendant?
"A: Probably a day or -- probably a day or two later I received a phone call from Wallace Dixon, and he was like, I'm in trouble, I'm in some serious stuff. And he said, I'm going to see my lawyer, would you come with me to see my lawyer? And I said I had to wait on my girlfriend to come over, because we were going to go eat somewhere, I believe. So, I told him yes, I'll go up there, but I rode with my girlfriend.
"Q: Did you go up to his lawyer's?
[Defense counsel]: I would object. Comment on the right to counsel.
THE COURT: I don't think that's a problem here. You can proceed.
"Q: Did you go to the lawyer's office?
"A: Yes, I did.
"Q: Who was the lawyer?
"A: Johnson.
"Q: Joe Johnson?
"A: I'm not familiar with his first name. I remember Johnson.
"Q: Okay. Who also was there?
"A: Wallace -- it was Jerry Hall, Wallace Dixon, Johnson, and myself, his mother, Wallace Dixon's mother."
In closing argument, the prosecutor commented on Dixon's contacting his attorney: "Who else did he call that morning? Called his -- after he got back to Topeka, he called his attorney beginning at 8:48 p.m., 7/29. He called him 10 times, including one call at 1:19 a.m. at his home phone number." In the final portion of his closing argument, the prosecutor directed the jury's attention to a number of Dixon's acts that, according to the prosecutor, showed defendant's consciousness of guilt. The prosecutor did not include Dixon's contacting his attorney among the actions that purportedly showed consciousness of guilt.
On appeal, Dixon argues that in eliciting testimony about his telephone calls and visit to his attorney, the prosecutor was improperly implying that defendant's contacting his attorney showed that defendant was guilty. He relies primarily on cases from other jurisdictions for the principle that a defendant's guilt may not be implied by showing that he sought the assistance of counsel. See, e.g., United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980) ("It is impermissible to attempt to prove a defendant's guilt by pointing ominously to the fact that he has sought the assistance of counsel.").
The State questions whether the issue was preserved for appeal. As we have seen, no objection was made when the prosecutor questioned Hall. A relevance objection was made when the prosecutor questi
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