Opinion
109,419.
12-05-2014
STATE of Kansas, Appellee, v. Larry NORWOOD, Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Tim Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Tim Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Larry Norwood was convicted of three counts of rape and four counts of aggravated indecent liberties with a child. He timely filed this direct appeal claiming six errors below: (1) the district court erred in not having another judge rule on the legal sufficiency of his motion to recuse the district court judge; (2) the district court erred in denying Norwood's motion for psychological evaluation of the victims; (3) the district court improperly applied the rape shield to exclude evidence; (4) the district court improperly admitted hearsay statements as evidence; (5) the prosecutor committed reversible prosecutorial misconduct during closing argument; and (6) cumulative error denied him a fair trial. Finding no reversible error, we affirm the district court.
Factual Background
Larry Norwood began dating LeeAnn Garcia (Garcia) in January of 2008. Garcia had previously been married to Joe Garcia and had custody of his children, AJG and ALG, after Joe Garcia's parental rights were terminated due to sexual abuse. AJG and ALG were removed from the care of Norwood and Garcia on July 18, 2009, after the police were called to the house where Garcia, Norwood, ALG, and AJG lived.
An investigation revealed allegations that AJG and ALG had been sexually abused by Norwood. Specifically, ALG stated that Norwood had twice come into her room at night, fondled her breasts and digitally raped her. AJG stated that that on two occasions she had lain on a bed with her head in Garcia's lap while Norwood used both his hand and a pink vibrator to rape her. Ultimately, Norwood was charged with three counts of rape and four counts of aggravated indecent liberties with a child.
Norwood filed a number of pretrial motions. He asked the district court to order AJG and ALG to undergo a psychiatric evaluation on the grounds that the victims were transferring the substantial abuse they suffered at the hands of their biological parents onto him. The court ordered that the girls undergo a limited evaluation to determine whether they were capable of telling the truth. Norwood also sought to introduce evidence of prior sexual abuse and conduct to further his transference defense. The district court ruled that the fact that both girls were previously abused by their biological father and family was admissible, but any specific instances or descriptions of that abuse was not. Finally, Norwood filed a motion of recusal claiming that the district court was biased against him. This motion was denied by the district court.
At trial, Norwood attempted to undermine the credibility of the victims in order to bolster his transference defense. He introduced evidence regarding the mental instability of AJG and ALG including evidence of uncontrolled screaming, rage, suicidal ideation, and hallucinations. Norwood testified that AJG took his hand and placed it on her vagina. He testified that he was once woken by ALG sucking on his nipple. Norwood further testified to instances of theft and dishonesty by AJG and ALG. He claimed that ALG had access to the pink vibrator. Norwood also pointed out inconsistencies in the victims' multiple statements. During the preliminary hearing, ALG stated that Norwood had not penetrated her and that one incident had occurred on the couch, both of which conflicted with her trial testimony. Likewise, at Garcia's separate trial for abuse, which was held before Norwood's, AJG testified that she had not been penetrated, again conflicting with her testimony at Norwood's trial. AJG also testified that Garcia had previously given her the pink vibrator to play with. Broadly speaking, the record makes it clear that the district court permitted Norwood to offer a defense of transference that was supported by numerous attacks on the credibility of the victims' testimony.
The State, on the other hand, bolstered the victims' credibility with testimony from DeAnn Massey, Garcia's onetime cellmate. After Massey was released on probation, she reported to her probation officer a confession that Garcia allegedly made to her while the two were sharing a cell. Massey stated that Garcia asked her if she thought Garcia was a bad mother for failing to protect AJG and ALG from Norwood and from Joe Garcia before that. Massey testified that Garcia described an incident in which she held a child's head in her lap and stroked the child's head, keeping her calm and soothing her as Norwood raped her. Garcia denied that any of these conversations took place.
Norwood was convicted on all seven counts and was sentenced to a controlling sentence of two consecutive hard 25 prison terms. He timely filed this direct appeal.
ANALYSIS
On appeal, Norwood argues six claims: (1) The district court erred in not referring Norwood's motion to recuse to another district court judge; (2) the district court erred in denying Norwood's motion for a psychological evaluation of ALG and AJG; (3) the district court improperly applied the rape shield to exclude evidence; (4) the district court improperly allowed Massey to testify to Garcia's alleged statements; (5) the prosecutor committed reversible prosecutorial misconduct during closing argument; and (6) cumulative error. Finding no reversible error, we affirm the district court.
Norwood's Motion for Recusal
Acting pro se at the time, Norwood filed a pretrial document titled “Affidavit of Prejudice Motion to Change Judge Under KSA 1978 Supp. 20–311d Subsection (b) on Account of Personal Bias and Prejudice.” Much of this pleading complained of perceived inequities in previous rulings made by the district court. It also alleged the judge had a personal bias against Norwood claiming the district court had made statements disapproving of the multiethnic relationship between Garcia and Norwood. The district court denied this motion the same day without a hearing. In its order, the district court denied making any statements disapproving of Norwood's mixed race relationship
Norwood argues that the district court judge erred when it did not have another judge rule on the sufficiency of Norwood's affidavit pursuant to K.S.A. 20–3 lld(b). Norwood makes no argument as to whether the affidavit was legally sufficient, only that the district court did not follow the proper procedure. Whether the district court complied with the procedural steps in determining a motion pursuant to K.S.A. 20–311d is a question of statutory interpretation over which this court has unlimited review. State v.. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
K.S.A. 20–311d(a) states:
“If a party or a party's attorney believes that the judge to whom an action is assigned cannot afford that party a fair trial in the action, the party or attorney may file a motion for change of judge. The motion shall not state the grounds for the party's or attorney's belief. The judge shall promptly hear the motion informally upon reasonable notice to all parties who have appeared in the case. If the judge disqualifies the judge's self, the action shall be assigned to another judge by the chief judge. If the judge refuses to disqualify the judge's self, the party seeking a change of judge may file the affidavit provided for in subsection (b). If an affidavit is to be filed it shall be filed immediately.”
Subsection (b) of the same statute states that once the motion is denied and an affidavit filed:
“the chief judge shall at once determine, or refer the affidavit to another district judge for prompt determination of, the legal sufficiency of the affidavit. If the affidavit is filed in a district court in which there is no other judge who is qualified to hear the matter, the chief judge shall at once notify the departmental justice for the district and request the appointment of another district judge to determine the legal sufficiency of the affidavit. If the affidavit is found to be legally sufficient, the case shall be assigned to another judge.” K.S.A. 20–311d(b).
Our Supreme Court has stated that prior to filing an affidavit, the complaining party must file a motion, and upon denial of that motion produce an affidavit. State v. Sawyer, 297 Kan. 902, 908, 305 P.3d 608 (2013). In this case, Norwood filed what appears to be a motion but is labeled an affidavit. “Judges must liberally construe a pro se pleading to ‘give effect to the pleading's content rather than the labels and forms used to articulate the defendant's argument’. [Citation omitted.]” Makthepharak v. State, 298 Kan. 573, 581, 314 P.3d 876 (2013). While Norwood labeled his filing an “affidavit” at the top of each page, it is not an affidavit. The filing refers to itself as a motion. It begins with a legal argument and includes attachments of transcripts from previous hearings, orders, and a hand written communication between Norwood and his prior attorney.
In State v. Knight, our Supreme Court held that the district court did not err in failing to refer to another judge a defendant's pro se “Motion for a Change of Judge and Affidavit of Prejudice” because the document was merely a document acknowledged by a notary public. 219 Kan. 863, 867, 549 P.2d 1397 (1976). Our Supreme Court has said that an affidavit is “a written statement, under oath, sworn to or affirmed by the person making it before some person who has authority to administer an oath or affirmation.” Knight, 219 Kan. at 867. It is essential to an affidavit's validity that it be sworn or affirmed or else it is not an affidavit. 219 Kan. at 867.
Norwood's filing was not made under oath. Thus, there was no affidavit filed pursuant to K.S.A. 20–311d(b). Because there was no affidavit filed pursuant to K.S.A. 20–311d(b), the district court did not err in refusing to refer the motion to another judge. “It is the filing of the affidavit which triggers the judge's obligation to transfer the case to another judge.” Eferakeya v. Twin City State Bank, 13 Kan.App.2d 197, 200, 766 P.2d 837 (1988).
Psychological Examination
Norwood asked the district court to order AJG and ALG to undergo a mental health examination. Norwood argued both AJG and ALG had suffered sexual abuse at the hands of their biological parents. He detailed a substantial history of psychiatric problems allegedly suffered by both girls and suggested that as a result, ALG and AJG could not be truthful witnesses. Following a hearing, the district court ordered a limited evaluation to determine whether the witnesses understood the difference between a truth and a lie.
On appeal, Norwood argues the district court erred in denying his request for a full psychological evaluation. When examining whether the district court's denial of a psychological evaluation is proper, we review for an abuse of discretion. A district court abuses its discretion only when no reasonable person would take the view adopted by the trial court. State v. Sellers, 292 Kan. 346, Syl. ¶ 1, 253 P.3d 20 (2011).
Recently our Supreme Court has said:
“A psychiatric evaluation of a complaining witness in a sexual abuse case is appropriate when the defendant can show the totality of the circumstances demonstrate compelling reasons for the evaluation. See Berriozabal, 291 Kan. 568, Syl. ¶ 4, 243 P.3d 352 ; but see State v. Simpson, 299 Kan. 900, 997–1000, 327 P.3d 460, (2014) (Moritz, J., dissenting) (suggesting need to reconsider and overrule Gregg ). In determining whether compelling circumstances exist, a district court considers the following nonexhaustive list of factors: ‘(1) whether there was corroborating evidence of the complaining witness' version of the facts, (2) whether the complaining witness demonstrates mental instability, (3) whether the complaining witness demonstrates a lack of veracity, (4) whether similar charges by the complaining witness against others are proven to be false, (5) whether the defendant's motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.’ Berriozabal, 291 Kan. 568, Syl. ¶ 5.” State v. McCune, 299 Kan. 1216, 1231, 330 P.3d 1107 (2014).
Reviewing the totality of the circumstances we conclude that the district court did not abuse its discretion. The witnesses' testimony was corroborated; their previous allegations against others were not false; and neither witness was found to be incapable of giving truthful testimony. While it is true that there was some evidence of a history of mental instability, given the depth of the corroboration and lack of evidence that they had a history of making false accusations, we cannot say that no reasonable person could have reached the same result as the district court. In fact, a panel of this Court has already determined that the district court did not err in denying a full psychological evaluation in Garcia's case. See State v. Garcia, No. 108,993, 2014 WL 1508623, at *4–6, (Kan.App.2014) (unpublished decision).
Evidence of Prior Sexual Activity
Next, Norwood appeals the district court's denial of his pretrial motion pursuant to K.S.A. 21–3525 (now K.S.A.2013 Supp. 21–5502 ). Norwood argued that it was crucial to his defense that the jury be advised of the prior sexual abuse and resulting psychological trauma of AJG and ALG. In an attached affidavit, Norwood stated that both ALG and AJG told Norwood that they had been raped and sodomized by their biological father and also abused by their biological mother, uncles, and other family members.
At a hearing on the motion, the district court noted that Norwood was seeking this testimony and evidence to pursue a defense theory that the witnesses had transferred previous experiences and were now attributing them to Norwood. But the district court concluded that none of the prior alleged events bore any sustained factual similarity to the crimes Norwood was accused of committing, saying:
“And, all the things that are alleged to have happened to these kids in no way, shape, or form did any of them, as to the little girl, involve laying on a bed with their head in Ms. Garcia's lap, and Mr. Norwood purportedly doing these things to them....They're not the same. They're not the same and it doesn't transfer down to that. There are ... some tremendous differences.”
Norwood tried to argue certain similarities and the court ruled:
“Mr. Roe, here's what, here's the very best you're going to get. The very best you're going to get is that both of these girls in the past have been sexually abused. Now, you can argue from there that they transferred it, or whatever else, actually, you will get that both of these girls have been sexually abused by their natural father and other family members. And, that's he very best you're going to get is that both of these girls in the past have been sexually abused. Now, you can argue from there that they transferred it, or whatever else, actually, you will get that both of these girls have been sexually abused by their natural father and other family members. And, that's the best you're going to get. I'm not allowing you to go into all the uncles and brothers and cousins and everything else and what they did to them. I do not believe that that is any relevant evidence in this case. I think by giving you, and, and I would like to see it done in the form of a stipulation between the parties, that these girls were sexually abused by their natural father and other relatives prior to this case. And that's the best you're going to get.”
On the first day of trial, before voir dire, Norwood asked to be allowed to testify that one of the girls had told Norwood that, at one time, she believed herself to be pregnant, and that the father could be one of at least 12 individuals. Norwood then argued that this information was relevant to show that “she's got an imagination that gets carried away. And if she imagined that, she could imagine this.”
The district court denied this request stating:
“[O]ther than your client saying that, we have no independent proof of that from any other source and it's not a fact that's ever been out in discovery, and I still believe that the rape shield prohibits any conversations regarding that. So that's out. That's not gonna come in by virtue of the rape shield act.”
Norwood appeals these decisions, arguing that the district court's erroneous application of the rape shield statute denied him his constitutional right to present his defense. Whether a district court's ruling interfered with a defendant's constitutional right to present a defense is a legal question reviewed de novo. State v. Carter, 284 Kan. 312, 318–19, 160 P.3d 457 (2007).
In relevant part, the rape shield statute states:
“Except as provided in subsection (c), in any prosecution to which this section applies, evidence of the complaining witness' previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in any proceeding before the court, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness .... The motion shall state the nature of such evidence or testimony and its relevancy shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated .... The defendant, defendant's counsel and prosecutor shall be prohibited from disclosing any matters relating to the motion, affidavits and any supporting or responding documents of the motion. The court shall conduct a hearing of the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question the witnesses in accordance with the order of the court .” K.S.A.2013 Supp. 21–5502(b).
This court has previously outlined factors that should be considered when determining whether the prior sexual conduct of a complaining witness is relevant to the issues of consent and credibility. These factors are:
“(1) whether there was prior sexual conduct by complainant with defendant; (2) whether the prior sexual conduct rebuts medical evidence on proof of origin of semen, venereal disease, or pregnancy; (3) whether distinctive sexual patterns so closely resembled defendant's version of the alleged encounter so as to tend to prove consent or to diminish complainant's credibility on the questioned occasion; (4) whether prior sexual conduct by complainant with others, known to the defendant, tends to prove he or she believed the complainant was consenting to his or her sexual advances; (5) whether sexual conduct tends to prove complainant's motive to fabricate the charge; (6) whether evidence tends to rebut proof by the prosecution regarding the complainant's past sexual conduct; (7) whether evidence of sexual conduct is offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the acts charged; and (8) whether the prior sexual conduct and the charged act of the defendant are proximate in time.” State v. Perez, 26 Kan.App.2d 777, Syl. ¶ 3, 995 P.2d 372 (1999).
Here, most of the above listed factors are simply inapplicable to this case. There was no alleged prior sexual conduct between Norwood and the girls, there was no medical proof introduced, Norwood alleged that no encounter took place, consent was not at issue, and the prosecution did not introduce evidence of previous sexual history that wasn't already agreed to by all parties. Norwood argues that factors five and seven are present. Sexual history may be admissible if the “evidence of sexual conduct is offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the acts charged.” Perez, 26 Kan.App.2d 777 Syl. ¶ 3. Here, there was no such expert testimony. Likewise, alleged prior sexual history may be admissible if it tends to demonstrate a motive for a victim to fabricate allegations. Norwood pursued a defense of transference. The district court allowed that defense and allowed evidence of prior abuse to be admitted. However, because the details of the past abuse were not similar in nature to the crimes Norwood was charged with, the district court excluded those details from evidence
Norwood points to State v. Bourassa, 28 Kan.App.2d 161, 15 P.3d 835 (1999), in support of his position. In Bourassa, the defendant was convicted of molesting V.R. on the morning of March 28, 1998, after he picked V.R. up from a park and molested her in a van before dropping her off. The defendant sought to introduce evidence that V.R. had previously accused her father of molesting her based upon a defense that V.R. may have been molested by her father earlier that day. This court found that the district court abused its discretion in denying his motion because it “substantially prevented Bourassa from pursuing his theory of defense that appears to have been based upon V.R.'s own allegations of past sexual abuse at the hands of her father and credible evidence she had been in his custody before going to the park.” Bourassa, 28 Kan.App.2d at 168.
The facts of this case are not similar. The events that Norwood was seeking to present to the jury happened more than 2 years before the alleged crimes. While Norwood was offering the same type of defense as the defendant in Bourassa, the fact that he could not point to any similar incident in close time or place proximity clearly distinguishes Norwood's defense from that offered in Bourassa. The rape shield rules are intended to prevent a defendant from “dredg[ing] up the complaining witness' entire sexual history to embarrass or humiliate her ... [or from] proffering evidence of the complaining witness' sexual behavior months or weeks before the alleged rape.” Perez, 26 Kan.App.2d at 781–82. The district court did not abuse its discretion when it excluded certain evidence concerning prior abuse suffered by the victims.
Norwood also claims the district court erred when it refused to admit a statement made by ALG to Norwood that she could have been pregnant by 12 different people. This allegation was made the day of trial just prior to voir dire and was not a part of Norwood's previous motion to include evidence of prior sexual abuse. The district court initially denied this request based upon the fact that the rape shield prohibits evidence of prior sexual conduct. However, Norwood then explained that the information was not sought to prove that ALG actually had sex with 12 different people, but rather to show “that she's got an imagination that gets carried away. And if she imagined that she could imagine this.” The district court refused this request, noting first that there was no independent proof of the statement and it was absent from discovery, but ultimately ruled that the rape shield prohibited the statement.
On appeal, Norwood cites to State v. Barber, for the proposition that prior false allegations are not covered by the rape shield. 13 Kan.App.2d 224, 766 P.2d 1288 (1989). Norwood is correct that Barber stands for the proposition that prior false accusations can be used to attack a witness' credibility. However, such “prior accusations are admissible only after the trial court has made a threshold determination that a reasonable probability of falsity exists.” Barber, 13 Kan.App.2d at 227. Moreover, mere bragging about consensual sexual activity does not fall under the Barber rule. State v. Plaskett, 271 Kan. 995, 1013, 27 P.3d 890 (2001). The alleged statement of ALG was not a false accusation of prior abuse. Norwood was merely trying to taint the credibility of ALG by characterizing her as promiscuous, exactly the kind of thing the legislature sought to prevent in enacting K.S.A.2013 Supp. 21–5502. The district court did not err in refusing to allow this statement to be introduced as evidence.
Massey's Testimony
Prior to trial, the State obtained a statement from DeAnn Massey, Garcia's onetime cellmate, that corroborated the claims made against Norwood. Norwood sought to exclude this statement as hearsay. He relied on Bruton v. United States, 391 U.S. 123, 135–37, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which holds that when a confession of a codefendant is submitted by a third party, the Confrontation Clause is violated if the accused cannot cross examine the codefendant. The district court granted Norwood's motion but held that if the State were able to get Garcia to testify—and thus be subjected to cross-examination—then Massey would also be able to testify as Bruton would no longer apply. The State proceeded to issue a grant of use and derivative use immunity to Garcia covering the State's direct examination and Norwood's cross-examination.
Prior to voir dire, all the parties discussed Garcia's testimony, and it was indicated by the State that the only questions that would be asked went to her alleged conversations with Massey while in jail awaiting trial. Just prior to Garcia's trial testimony, outside the presence of the jury, the district court stated that it wanted to be clear that the testimony was only going to involve the conversations she had in jail with Massey. The State again indicated that it intended to question Garcia only about those conversations with Massey and nothing else. Norwood then indicated that he had subpoenaed Garcia, as he wished to question her as to whether she had ever given the pink vibrator to AJG and ALG. Garcia then explained that she would invoke the Fifth Amendment if those questions were asked as the grant of immunity did not cover such questions.
The jury returned and the State called Garcia to testify. The State noted that she was a codefendant and admitted the grant of immunity into evidence. After establishing that Garcia shared a cell with Massey, the State began to ask questions about conversations she may have had with Massey. For example, the State asked Garcia if she had ever discussed with Massey her feelings of being a bad mother, her participation in any abuse of ALG and AJG with Norwood including stroking AJG's hair while Norwood abused AJG, or her helping clean AJG in a shower after Norwood abused her. Garcia denied making these or any other similar statements to Massey.
On cross-examination, Norwood elicited from Garcia that she kept documents related to Garcia's criminal case in an unlocked tote in the cell she shared with Massey. Garcia admitted that the events she allegedly described to Massey were also described in those documents. Norwood then asked her if she had made any admissions about her case, which she denied. The next question Norwood asked was, “Okay. Now she asked you about a pink vibrator. Did you ever give AJG and ALG a pink vibrator to play with?” At this point, the district court instructed Garcia not to answer, and forbade Norwood from asking any questions beyond the scope of the State's direct examination, per its earlier ruling.
The State then called Massey as a witness and questioned her about conversations she had with Garcia, to which Norwood made a hearsay objection. Norwood requested that the jury be sent out in order to make a full record of his objection, which the district court allowed. After the jury was removed, Norwood stated that he was objecting on the grounds of hearsay as to anything Garcia told Massey while in jail arguing that Norwood was unable to cross examine Garcia as to the content of the conversations between Massey and Garcia because the content of those conversations were not brought up in direct examination. The district court overruled the objection and stated that it believed that it had done everything it could to make Garcia available for the limited purpose of cross-examination concerning the jail conversations.
On appeal, Norwood reprises his argument to the district court by claiming that Garcia was not available for cross-examination and, thus, Massey's testimony was inadmissible. Because Norwood's claim implicates both his constitutional rights of confrontation and the proper interpretation of K.S.A.2013 Supp. 60–460(a), our review is unlimited. State v. Friday, 297 Kan. 1023, 1043, 306 P.3d 265 (2013) ; State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
We are not convinced that Garcia was unavailable for cross-examination on the subject of her alleged conversations with Massey. On direct examination, the State specifically asked Garcia about those conversations, in some detail, and Garcia denied that they took place. Norwood apparently wished to discuss with Garcia the alleged facts of the conversation so as to contest those facts before the jury. That Norwood was thwarted in this attempt because Garcia maintained that the conversations never happened does not mean she was unavailable for cross-examination on the subject. Norwood simply was not satisfied with her answers. Because Garcia was fully available for cross-examination with respect to the statements Massey alleged she made, the district court did not err in permitting Massey's testimony.
Prosecutorial Misconduct
Norwood next alleges reversible prosecutorial misconduct. During closing arguments, the State's argument began:
“[State]: Yesterday the defendant sat right there and told you what AJG's vagina felt like. And of course he'd have you believe that it wasn't him, fifty year old male, that attacked these girls, but it was the eleven year old who went after him. It was the eleven year old that grabbed his hand, forced it into her crotch.
“It was the eleven year old that went into his room while he was sleeping and woke him up while fondling him in a sexual way.
“[Norwood]: Judge, I'm gonna object to this. Started this argument that totally misstates the evidence.
“[Court]: In what way?
“[Norwood]: The way would be that the testimony was that the little girl had grabbed Mr. Norwood's hand, put it on her vagina while he was awake, baby-sitting three other little children. There was no testimony whatsoever that happened in anybody's room.
“[State]: The
“[Court]: The jury-The jury will—will remember the testimony as to where they were, awake, not awake. Confine it to the facts.
“Continue.
“[State]: If you recall, Mr. Norwood did discuss a tale where the eleven year old woke him up, sucking on his breast, or something to that extent. He did testify to that, claim that happened. It's ridiculous.”
Norwood began his closing argument by reminding the jury that the burden of proof rested with the State, calling extra attention to the fact that the jury could not make a decision based on either prejudice against Norwood or sympathy for ALG and AJG. After noting perceived deficiencies in the investigation and factual oddities, Norwood noted the previous abuse suffered by ALG and AJG and the effects it may have on their credibility, stating:
“Unfortunately, Ladies and Gentlemen, these poor children that you saw before—the evidence is before you, they were terribly sexually and physically abused in a prior relationship by their own father. Again, goes to Instruction Number 16. I know it's a terrible thing, but it's not something that you can consider other than what motive they have had to tell the story that they told.
“And [Norwood] testified about some occasions where these girls had told stories that were fairly unbelievable. He testified of observations he had where these girls acted sexually inappropriately, both towards him and towards each other. These girls have a terrible history.
“Folks, I want you to please go back there and analyze this case in great detail. Look at the inconsistencies here. Consider what Mr. Norwood told you about these kids. Consider what we know about their previous history.”
On rebuttal, the State countered:
“And of course it sounds like defense is—is, uh, making a damaged goods defense. These girls are damaged goods. They had a bad history before so can't believe what they say. Oh, is that really true? Does prior abuse from 200early 2007 and before affect their ability to come in 2012 and tell you what happened? Are we just supposed to use that to kinda write ‘em off. I'd ask you not to write ‘em off. And again, you have the testimony and evidence before you.’'
Norwood makes two separate claims of prosecutorial misconduct. First, he argues that the prosecutor improperly expressed a personal opinion as to Norwood's credibility when it stated “If you recall, Mr. Norwood did discuss a tale where the eleven year old woke him up, sucking on his breast, or something to that extent. He did testify to that, claim that happened. It's ridiculous.” Second, he claims the prosecutor improperly appealed to the jury's sympathy when asking the jury to not “write ‘em off while referring to ALG and AJG.
Review of prosecutorial misconduct claims requires a two step analysis. First, we must determine whether the comments were outside a wide latitude the prosecutor is afforded in discussing the evidence. If misconduct is found, it must be determined whether the improper comments constitute plain error, that is, whether the statements prejudiced the jury against the defendant, denying him a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
We begin with Norwood's claim that when the prosecutor asked the jury not to “write ‘em off the State made an improper appeal to the sympathy of the jury. A prosecutor has a duty to insure that only competent evidence is submitted to the jury, guarding against anything that could prejudice the jury and hinder them from considering only the evidence adduced, such as appeals to sympathy or prejudice. State v. Cravatt, 267 Kan. 314, 333, 979 P.2d 679 (1999). “However, in determining if the remark is within the wide latitude allowed a prosecutor during his or her argument, an appellate court may consider whether the prosecutor's remark is provoked or made in response to defense counsel's remarks.” State v. Miller, 293 Kan. 535, 551, 264 P.3d 461 (2011).
In isolation, asking the jury to not “write ‘em off may appeal to the sympathies of the jury. However, taken in context, it is clear that the prosecutor was not asking the jury to make a decision based on sympathy, but rather was merely directing the jury to consider all the evidence produced at trial. The prosecutor said:
“Does prior abuse from 200––––early 2007 and before affect their ability to come in 2012 and tell you what happened? Are we just supposed to use that to kinda write ‘em off. I'd ask you not to write ‘em off. And again, you have the testimony and evidence before you.’'
Here, the prosecutor was simply asking the jury not to disregard the victims' testimony because of prior abuse. This was proper as it referred the jury directly to the evidence presented at trial and was in response to Norwood's attack on their credibility. These comments are well within the wide latitude afforded a prosecutor in discussing the evidence. There was no misconduct in this statement.
Norwood also claims that the prosecutor committed misconduct by improperly commenting on Norwood's credibility. Prosecutors generally are barred from offering their personal opinion on the credibility of the witnesses as these comments are a form of unsworn, unchecked testimony and not commentary on the evidence. State v. Peppers, 294 Kan. 377, 396, 276 P.3d 148 (2012). Here, the prosecutor said: “If you recall, Mr. Norwood did discuss a tale where the eleven year old woke him up, sucking on his breast, or something to that extent. He did testify to that, claim that happened. It's ridiculous.” While Norwood did testify that he was once woken by AJG sucking on his nipple, the phrase “[i]t's ridiculous” is an impermissible personal opinion from the prosecutor on the credibility of this testimony. As such, we must engage in the second prong of analysis.
If it is found that the prosecutor overstepped the wide latitude afforded him or her, we must determine (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the part of the prosecutor; and (3) whether the evidence was of such direct and overwhelming nature that the misconduct would likely have caried little weight in the mind of the jurors. State v. McCullough, 293 Kan. 970, 985, 270 P.3d 1142 (2012). No single factor is determinative, and before the third can outweigh the first two, the Court must determine that the harmlessness satisfies both the tests set out in K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, 22, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967). McCullough, 293 Kan. at 990.
In assessing whether gross and flagrant conduct has occurred, appellate courts should look to whether the prosecutor repeated or emphasized the misconduct. Peppers, 294 Kan. at 400. Here, the objectionable statement was not repeated or emphasized. It was not gross or flagrant. “A prosecutor's ill will is usually ‘reflected through deliberate and repeated misconduct or indifference to a court's rulings.’ “ State v. Inkelaar, 293 Kan. 414, 430, 264 P .3d 81 (2011). Ill will can be found if the prosecutor's comments were “intentional and not done in good faith.” State v. Miller, 284 Kan. 682, 719, 163 P.3d 267 (2007). Our Supreme Court has noted that instances of “a prosecutor's indifference to a court's rulings, mocking of a defendant, or repeated acts of misconduct” have all shown ill will. Miller, 284 Kan. at 719. Here, the prosecutor did not mock Norwood or stop to draw attention to him. One comment in a lengthy transcript does not indicate ill will. See State v. Washington, 275 Kan. 644, 672, 68 P.3d 134 (2003). The record before us does not demonstrate any ill will on the part of the State.
“Was the evidence of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors?” State v. Wells, 296 Kan. 65, 81, 290 P.3d 590 (2012). To answer this question, the State must be able to prove beyond a reasonable doubt that there is “ ‘no reasonable possibility that the error affected the defendant's substantial rights.’ “ Peppers, 294 Kan. at 401. Given the weight of the evidence and the relative insignificance of the State's one erroneous statement, we are satisfied that there is no reasonable possibility that the error affected the defendant's substantial rights. While the prosecutor erred in offering a personal opinion on Norwood's credibility, the error was harmless.
Cumulative Error
Finally, Norwood claims cumulative error denied him a fair trial. “Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Here, we have found one harmless error, and a single error cannot constitute cumulative error. State v. Haberlein, 296 Kan. 195, 212, 290 P.3d 640 (2012). As such, we find no cumulative error.
Affirmed.