Opinion
No. 106,783.
2012-12-14
STATE of Kansas, Appellee, v. Lorenzo MORALES, III, Appellant.
Appeal from Ford District Court; Daniel L. Love, Judge. Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Kevin B. Salzman, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; Daniel L. Love, Judge.
Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Kevin B. Salzman, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Lorenzo Morales appeals his convictions for attempted second-degree murder and other charges. He argues that he was denied a fair trial because of prosecutorial misconduct in the State's closing argument.
The prosecutor's comment asking the jury to return a just verdict because it was “the only way we're going to have peace in our community” was improper because it inferentially asked the jury to render a verdict to protect the community. But the comment didn't prejudice the jury against Morales such that it denied him a fair trial. The comment wasn't gross and flagrant, there was no ill will on the prosecutor's part, and there was substantial direct evidence that made it likely that the comment would have had little weight in the minds of the jurors. In addition, the prosecutor brought the issue to the trial court's attention before the jury reached a verdict, and the trial court told the jury to disregard the comment. We therefore affirm Morales' convictions.
Factual Background
In September 2009, Lorenzo Morales pointed a firearm at the head of Hugo Fernandez Sr. and pulled the trigger, but he missed. When Morales was arrested, he threatened a law enforcement officer and kicked another officer in the shin three times. The State charged Morales with attempted first-degree murder, criminal possession of a firearm, criminal threat, battery against a law enforcement officer, and battery. In October 2010, the battery charge was dropped.
A jury trial was held in October 2010. During the closing argument, the prosecutor quoted a former Pope, saying, “ ‘If you want peace, work for justice.” ’ He added that “the only way we're going to have peace in our community, in our lives, is if we do enforce and obey laws and return just verdicts on evidence that is rendered in court.” While the jury was deliberating, the prosecutor asked the court to find his comments improper, and he asked for a jury instruction that the comments be disregarded. The court instructed the jury to disregard the prosecutor's comments. The jury then found Morales guilty of attempted second-degree murder, criminal possession of a firearm, criminal threat, and battery against a law enforcement officer.
On May 13, 2011, Morales was sentenced to 243 months in prison. (He was given consecutive sentences of 228 months for attempted second-degree murder, 8 months for possession of a firearm, and 7 months for criminal threat.) He was also sentenced to 12 months in jail, to run concurrently, for battery against a law enforcement officer. Morales appeals his convictions.
Analysis
Morales Wasn't Denied a Fair Trial by the Prosecutor's Improper Comment.
Morales argues that he was denied a fair trial because of prosecutorial misconduct during the State's closing argument. Specifically, Morales argues that the prosecutor improperly quoted the Pope by telling the jury, “So, if you want peace, work for justice.” He also argues that the prosecutor improperly mentioned bringing peace to the community. The State contends that the prosecution's comments didn't fall outside permissible standards for closing argument and that, even if they did, there was no prejudice against Morales that warrants reversal.
Kansas appellate courts use a two-step analysis for allegations of prosecutorial misconduct involving improper comments to the jury. State v. Sprung, 294 Kan. 300, 312, 277 P.3d 1100 (2012). First, we must decide whether the comments were outside the wide latitude allowed the prosecutor in discussing the evidence. 294 Kan. at 312. If so, we must determine whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. 294 Kan. at 312. Three factors are considered in this determination: “(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors.” 294 Kan. at 312–13. This last factor may not override the first two factors unless the State proves beyond a reasonable doubt that the error complained of didn't affect the outcome of the trial in light of the entire record. Sprung, 294 Kan. at 313 (citing State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011).
We turn then to our first inquiry—whether the comments were outside the wide latitude allowed for argument. See Sprung, 294 Kan. at 312. A fundamental rule in closing arguments is that prosecutors must confine their comments to matters in evidence. State v. Richmond, 289 Kan. 419, 440–41, 212 P.3d 165 (2009) (quoting State v. Baker, 281 Kan. 997, Syl. ¶ 11, 135 P.3d 1098 [2006] ). The trial judge and the prosecutor have a responsibility to ensure that closing argument is kept within the proper bounds. State v. Elnicki, 279 Kan. 47, 60, 105 P.3d 1222 (2005)(quoting State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 [2000] ). A prosecutor goes out of bounds by making statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law. State v. Brown, 295 Kan. 181, 284 P.3d 977, 999 (2012) (quoting Baker, 281 Kan. at 1016).
Appealing to community interests is improper in a prosecutor's closing argument. The Kansas Supreme Court has repeatedly held that a prosecutor's comments are improper if they inferentially ask the jury to render a verdict to protect the community. State v. Finley, 273 Kan. 237, 245, 42 P.3d 723 (2002) (finding comment that “[w]e don't want people making meth in our communities” improper); State v. Green, 254 Kan. 669, 684–85, 867 P.2d 366 (1994) (finding statement “[w]hat you decide will be what our community stands for” improper); State v. Ruff, 252 Kan. 625, 631, 636, 847 P.2d 1258 (1993) (finding statement urging jury to “not allow [the defendant's] conduct to be tolerated in our county” improper); State v. Witten, 45 Kan.App.2d 544, 553, 251 P.3d 74 (2011) (finding statement “[s]omebody in our community is selling methamphetamines” improper), rev. denied 293 Kan. –––– (October 1, 2011); City of Dodge City v. Ingram, 33 Kan.App.2d 829, 839–40, 109 P.3d 1272 (2005) (finding statement that jury is the “conscience of the community” improper).
With those rules in mind, we turn to the prosecutor's argument. He urged jurors to “work for justice” and for “peace in our community”:
“If you go to my office's website, you'll see a [motto]. And, it's not my words, but they come from Pope Paul the Sixth. It says, ‘If you want peace, work for justice.’
“I submit to you that the police work hard. And, fairness in this case—to get you the evidence presented, and to protect people that night. They were the peacekeepers. That the Hugo Fernandez family worked hard through their emotions and were courageous in presenting the evidence, and Hugo was heroic in dealing with this, making sure that nobody except him would get hurt. And, the rest of the judicial system has worked hard in getting this evidence to you.
“Now, it's up to you. It's your job. You have to decide what to do with this case. If—the only way we're going to have peace in our community, in our lives, is if we do enforce and obey laws and return just verdicts on evidence that is rendered in court.
“So, if you want peace, work for justice. And, we would ask that you return a just verdict in this case. Thank you.”
The prosecutor's statement—“the only way we're going to have peace in our community, in our lives, is if we do enforce and obey laws and return just verdicts on evidence that is rendered in court”—essentially asks the jury to protect the community. The prosecutor inferred that convicting Morales was “the only way we're going to have peace in our community.” Thus, the comment was improper. Because the prosecutor's comment was outside the wide latitude allowed in closing argument, we must proceed to the second step of the analysis: Did the statement prejudice the jury against Morales and deny him a fair trial? See Sprung, 294 Kan. at 312.
The first of three factors to consider in this step is whether the improper statement was gross and flagrant. 294 Kan. at 312–13. In assessing whether the statement was gross and flagrant, we look to whether the prosecutor “ “ “repeated or emphasized the misconduct.” ” ” State v. Peppers, 294 Kan. 377, 400, 276 P.3d 148 (2012) (quoting State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 [2011] ). Gross and flagrant conduct also may be shown by “ ‘an accumulation of comments that would not individually be cause for reversal.” ’ Peppers, 294 Kan. at 400 (quoting State v. Miller, 284 Kan. 682, 719, 163 P.3d 267 (2007). Here, the statement inferring that the jury's job is to protect peace in the community was isolated to one brief mention at the end of closing argument. It wasn't repeated or emphasized. Therefore, the statement wasn't gross and flagrant.
The second factor is whether the statement showed ill will on the prosecutor's part. See Sprung, 294 Kan. at 312–13. A prosecutor's ill will is usually “ “ ‘reflected through deliberate and repeated misconduct or indifference to a court's rulings.” ” ’ Peppers, 294 Kan. at 400 (quoting Chanthaseng, 293 Kan. at 148–49). Ill will also may be found “ ‘when the prosecutor's comments were “intentional and not done in good faith.” [Citation omitted.]” ’ Peppers, 294 Kan. at 400 (quoting Miller, 284 Kan. at 719). Here, there was no objection or court ruling during the prosecutor's closing argument. This isn't a situation where the prosecutor persisted after being warned by the judge. See Peppers, 294 Kan. at 401. In addition, any suggestion of bad faith is negated by the record that shows that the prosecutor voluntarily brought the comment to the court's attention, asked that the court find the statement improper, and asked the court to instruct the jury to disregard the comment. Therefore, there was no ill will on the prosecutor's part.
The third factor is whether the evidence was of such a direct and overwhelming nature that the comment likely would have had little weight in the minds of the jurors. See Sprung, 294 Kan. at 312–13. The State bears the burden to show that there is no reasonable possibility the error affected the verdict. Chanthaseng, 293 Kan. at 149. Here, the State cites substantial evidence against Morales, including eyewitness testimony from the victim and the victim's family as well as testimony from police officers and a doctor. The most overwhelming direct evidence was the victim's testimony that Morales pointed a gun at his head and pulled the trigger. The jury found the State's witnesses to be more credible than Morales' witnesses, and this court doesn't reevaluate credibility already determined by a jury. See Peppers, 294 Kan. at 401. Significantly, the jury was instructed to disregard the prosecutor's comment. We presume that a jury follows the jury instructions. State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010). Therefore, in light of the entire record, there is no reasonable possibility that the prosecutor's comment affected the verdict.
The district court's judgment is affirmed.