Excessive Rhetoric Harmless Error

The Kansas Supreme Court found plain but harmless error in a prosecutor’s closing argument in a felony murder trial. The prosecutor had argued:

“They [sic] saying that Brandi shook the baby when? She shook the baby thatnight while she’s inthere feeding her putting her to bed, is that what they want you to believe? They are saying thatthere’s a reasonable doubt about that, that you don’t know who did it. Well, you do when youlookat all the evidence. And another thing is he’s no longer presumed innocent. Case is in.Evidenceis in. At this point based on everything that we’ve proved, he’s guilty.” (Emphasis added.)

The court held:

In this case, immediately after saying that the defendant was no longer presumed innocent,the prosecutor stated: “Case is in. Evidence is in.” A rational juror could easily interpret thestatement, in context, to mean that once the evidentiary portion of the trial is complete, thepresumption of innocence no longer applies. Accordingly, we find that under the first step of theanalysis, the prosecutor exceeded the limits of approved rhetoric. (citations omitted)

  While we find that viewing the comment in its context does not save it from being error,the context does favor the State in the second step of the analysis. It does appear that theprosecutor was attempting to convey that the State had overcome the presumption of innocenceby “everything that [it] proved.” We see no manifestation of ill will. Moreover, the misconduct didnot rise to the level of being so gross and flagrant as to constitute plain error. The comment likelyhad little weight in the minds of the jurors, and we find that the error was harmless.

The court rejected a number of other contentions in affirming the conviction. (Mike Frisch)