The “We Know” Gamble

The Kansas Supreme Court found harmless error in improper use of the phrase “we know” by a prosecutor

Cherry alleges that four statements made by the State’s attorney during closing argument amounted to reversible prosecutorial error. Specifically, Cherry argues that the State’s repeated use of the phrase “we know” improperly announced the prosecutor’s opinion on controverted evidence. The use of such “we know” statements is a practice we have repeatedly admonished prosecutors to avoid when discussing controverted facts. See, e.g., State v. Brown, 316 Kan. 154, 164, 513 P.3d 1207 (2022); State v. AlfaroValleda, 314 Kan. 526, 537-41, 502 P.3d 66 (2022); State v. Douglas, 313 Kan. 704, 716, 490 P.3d 34 (2021); State v. King, 308 Kan. 16, 30, 417 P.3d 1073 (2018).

While the court agreed that some of the statements were error but nonetheless affirmed

Because of the overwhelming weight of the evidence against Cherry, we find that the statements were harmless in light of the entire record. In finding these statements harmless we add a note of caution addressing an argument advanced by the State’s counsel before this court. Counsel argued that he had found no cases where a “we know” statement had been found to be reversible error. We warn the State not to ignore our precedent finding these statements are error, even if those errors have been harmless up to this point. Harmlessness in each case is decided individually, in the context of the entire record. Even if the errors are individually harmless, they are included in our cumulative error analysis. Prosecutors are taking a gamble by continuing to use these types of statements, and those who gamble are bound to lose at some point. Indeed, in the time since this argument was made, that time has arrived. State v. Wash, 320 Kan. ___, ___, 2025 WL 1779068, at *19-20 (2025).

The crime

On January 23, 2019, Raymond Cherry, Alan Michael Hicks, and “Jane” set out to buy some marijuana from “Bob” and “Robin.” On the way to Bob and Robin’s apartment, Cherry and Hicks decided, because they did not normally buy marijuana from Bob, they would steal the marijuana instead. Once Cherry and Hicks arrived at the apartment, the robbery turned into a “drug deal gone wrong.” Cherry held Bob, and two of Bob’s guests, at gunpoint, while Hicks searched the back bedroom for marijuana. Bob and Cherry got into a fight, which resulted in Cherry shooting Bob in the face.

Cherry completely denied any involvement with the drug deal or the shooting. However, following a jury trial, Cherry was convicted of first-degree murder, aggravated robbery, conspiracy to commit aggravated robbery, two counts of aggravated assault, and criminal possession of a firearm by a convicted felon. This is Cherry’s direct appeal from those convictions.

(Mike Frisch)