State v. Taylor ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 118,792
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CAMERON MICHAEL TAYLOR,
Appellant.
MEMORANDUM OPINION
Appeal from Finney District Court; RICKLIN PIERCE, judge. Opinion filed October 30, 2020.
Affirmed in part, reversed in part, vacated in part, and remanded with directions.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
William C. Votypka, deputy county attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., ATCHESON and SCHROEDER, JJ.
ATCHESON, J.: A jury sitting in Finney County District Court found Defendant
Cameron Michael Taylor guilty of battery against a law enforcement officer, intentional
criminal threat, and possession of marijuana—all felony charges. We reverse the
marijuana conviction because the district court erred in denying Taylor's motion to
suppress the drugs as the product of an unconstitutional search and seizure. In turn, the
admission of the marijuana as evidence at trial was impermissibly prejudicial to Taylor
on the possession charge. We do not find Taylor's other claims of error sufficient to
reverse the remaining convictions, so we affirm them and the resulting sentences. We
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affirm in part, reverse in part, and remand to the district court with directions to both
suppress the marijuana and to grant Taylor a new trial on the possession charge.
DENIAL OF MOTION TO SUPPRESS
A. Marijuana
We begin with Taylor's motion to suppress the marijuana as a product of a police
detention violating his rights secured in the Fourth Amendment to the United States
Constitution to be free from unreasonable government searches and seizures. In
reviewing the district court's denial of that motion, we look at the evidence presented at
the hearing on the motion and at the preliminary hearing, since the parties agreed to the
admission of that testimony, as well. Taylor submitted that Garden City Police Officer
Richard Colburn had no valid reason to stop him as he walked down a street in that city
in the middle of the afternoon. The State countered that the officer had ample grounds to
detain and then search Taylor, resulting in the discovery of the marijuana.
Colburn provided the only relevant testimony describing the stop. Taylor testified
at neither the suppression hearing nor the preliminary hearing. The district court appears
to have credited Colburn's factual account, so we proceed accordingly. In reviewing a
ruling on a motion to suppress, we apply a bifurcated standard. We give deference to the
district court's findings of fact so long as they have support in the evidence; we then
make an independent determination of whether those findings justify the district court's
legal conclusion. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016); State v.
Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). The State bears the burden of proving
by a preponderance of the evidence that a search or seizure conforms to the Fourth
Amendment. Patterson, 304 Kan. at 272; State v. Pollman, 286 Kan. 881, 886, 190 P.3d
234 (2008).
2
Colburn was on routine patrol in the middle of the afternoon on April 26, 2017,
when he saw Taylor walking down the street in what has been characterized as a mostly
residential area of Garden City. According to Colburn, Taylor did nothing to suggest he
had just committed a crime or was preparing to do so. Colburn saw nothing to indicate
Taylor was carrying a handgun, illegal drugs, or other contraband. So Taylor did not
appear to be in the process of committing a crime.
But Colburn testified the neighborhood was a "high drug area," and police had
made two arrests for firearms and illegal drugs there in the preceding two weeks. Colburn
said he had "located firearms in that area" and had "located narcotics in that . . . particular
block." In addition, Colburn explained that at the police roll call the day before, a
detective announced that Taylor had been seen with a handgun and an unspecified
amount of methamphetamine. At the suppression hearing, Colburn agreed there were no
active warrants for Taylor's arrest.
Colburn testified that he had "prior knowledge of" Taylor that included an
understanding he was a "narcotics trafficker" and a member of a particular street gang.
Another officer had told Colburn that Taylor was skilled in martial arts. And Colburn
alluded without detail to Taylor's previous interactions with law enforcement.
Throughout the record in this case, there are veiled references to an incident several years
earlier that led to Taylor being charged with multiple counts of battery against a law
enforcement officer. A jury apparently found him not guilty in early 2015.
Colburn said he decided to stop Taylor because of the roll call bulletin from the
day before and the character of the neighborhood as a drug trafficking locale. As Colburn
described the encounter, he pulled his patrol car alongside Taylor, got out, and declared,
"Cameron, come over here." When Colburn spoke, Taylor began backing away and made
"furtive movements" with his hands around the waistband of his pants—actions Colburn
considered to be consistent with Taylor having a handgun. Colburn testified that he did
3
not consider Taylor free to leave and told him he was being "detained." He also said he
was concerned for his own safety if Taylor had a handgun.
At the preliminary hearing, Colburn testified he ordered Taylor to face away from
him with his hands raised above his head. Taylor complied and asked what he had done
wrong. By then, Colburn had requested a backup officer and told Taylor to wait until
another officer arrived so he could do a pat-down for weapons. According to Colburn,
Taylor denied having a gun. At the suppression hearing, Colburn testified that he ordered
Taylor to turn around, to get on his knees, and to place his hands on the back of his head.
After Officer Jairo Armenta arrived, Colburn did a pat-down search of Taylor and
felt something consistent with marijuana in a plastic bag in a pocket of Taylor's pants.
Colburn then handcuffed Taylor and removed what was, indeed, marijuana from the
pocket. Taylor, however, had no handgun or other weapons. Because Taylor had a
previous conviction for possession of marijuana, he was charged with felony possession
in this case. We pause our narrative of the events to consider the search and seizure issues
bearing on the discovery of the marijuana.
The Fourth Amendment prohibits government agents, including law enforcement
officers, from conducting unreasonable searches and seizures of persons or their effects.
For Fourth Amendment purposes, the courts have identified four general categories or
types of interaction between law enforcement officers and citizens: voluntary
encounters; investigatory or Terry stops; arrests; and public safety contacts. State v.
Cleverly, 305 Kan. 598, Syl. ¶ 4, 385 P.3d 512 (2016).
Taylor contends there was nothing voluntary about his interaction with Colburn
and the officer had insufficient grounds for an investigatory detention and search. The
State argues that Colburn and Taylor engaged in a voluntary encounter that morphed into
a constitutionally sufficient investigatory detention when Colburn ordered Taylor either
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to turn around and raise his hands or to kneel and place his hands behind his head,
followed by an equally permissible search. The State's argument partially aligns with the
district court's ruling in denying the motion to suppress. As we explain, however, both the
State and the district court have offered constitutionally untenable analyses. Our
discussion focuses on the hallmarks of voluntary encounters and investigatory detentions.
Neither the parties nor the district court analyzed the stop as an arrest. A
constitutionally proper arrest requires the arresting officer to have either probable cause
to conclude the person detained has committed a crime or a reasonable belief the person
is the subject of a valid warrant. Since probable cause is a higher standard than
reasonable suspicion, a seizure that cannot be factually justified as a Terry stop or
investigative detention necessarily fails as a constitutionally proper arrest. Nobody has
suggested this was a public safety contact—a species of interaction between government
agents and citizens quite different from investigatory detentions or arrests—in which a
law enforcement officer acts not in service of a criminal investigation but on an
objectively reasonable belief a person may be in peril. See State v. Messner, 55 Kan.
App. 2d 630, 635, 419 P.3d 642 (2018).
A voluntary encounter, as the phrase suggests, entails a law enforcement officer
approaching a person and initiating a conversation with the individual absent any legal
grounds to detain him or her or to otherwise compel any cooperation. Accordingly, the
individual freely may choose to stay and respond or may simply walk away. See Florida
v. Bostick, 501 U.S. 429, 434-35, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); State v.
McKeown, 249 Kan. 506, 509-10, 819 P.2d 644 (1991). The parameters of the interaction
are legally no different from two private citizens meeting by chance in a public place—
either may disregard the other at no more than the cost of appearing rude. See City of
Topeka v. Grabauskas, 33 Kan. App. 2d 210, 219, 99 P.3d 1125 (2004) (Fourth
Amendment voluntary encounter preserves right of citizen to refuse to answer questions
and to leave). Concomitantly, a law enforcement officer rebuffed during a voluntary
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encounter cannot treat the citizen's lack of cooperation as an indicator of criminality
warranting an investigatory stop or some other involuntary detention. McKeown, 249
Kan. at 509-10; Grabauskas, 33 Kan. App. 2d at 219; see also Florida v. Royer, 460 U.S.
491, 497-98, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality opinion) (citizen's
"refusal to listen or answer" during a voluntary encounter does not "furnish those
grounds" justifying a constitutionally permissible seizure or detention). If the law were
otherwise, the encounter couldn't be truly voluntary, since the citizen participant would
incur a material legal detriment for choosing to disengage.
In an investigatory detention or Terry stop, law enforcement officers may halt and
briefly question a person if they have a reasonable suspicion based on articulable facts
that the individual has just committed, is committing, or may be about to commit a crime.
Arizona v. Johnson, 555 U.S. 323, 326-27, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009);
Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); Terry
v. Ohio, 392 U.S. 1, 21-23, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The suspicion of
criminal involvement cannot rest on mere hunches or speculation, but an officer may rely
on training and experience to deduce nefarious implications from circumstances that
those outside the law enforcement field might view as entirely innocuous. See Terry, 392
U.S. at 22-23, 27; State v. Martinez, 296 Kan. 482, Syl. ¶ 4, 293 P.3d 718 (2013) (district
court erred in finding that an experienced officer with a hunch possessed a reasonable
suspicion of wrongdoing); accord Brown v. Texas, 443 U.S. 47, 52 n.2, 99 S. Ct. 2637, 61
L. Ed. 2d 357 (1979). Reasonable suspicion doesn't conform to a concise definition or a
precise quantification, but it is less demanding than probable cause and far less so than a
preponderance of the evidence. To be reasonable, however, the suspicion must be
supported by at least some objective facts indicating criminal involvement on the part of
the person stopped. State v. Jones, 47 Kan. App. 2d 866, 872, 280 P.3d 824 (2012), aff'd
300 Kan. 630, 333 P.3d 886 (2014). Having made an otherwise proper investigatory
detention, a law enforcement officer may conduct a limited pat-down search of the person
being detained based on a reasonable, factually anchored suspicion the person has a
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dangerous weapon and may pose a threat. Johnson, 555 U.S. at 326-27 (investigatory
Terry stop may entail frisk or pat-down search for weapons if officer reasonably suspects
individual may be armed and dangerous); Terry, 392 U.S. at 27, 29-30; State v. White, 44
Kan. App. 2d 960, 970-71, 241 P.3d 591 (2010).
Based on the totality of the circumstances, there was no voluntary encounter
between Colburn and Taylor. Colburn stopped his patrol car, got out, and ordered Taylor
over to him. Not to put too fine a point on it, that's not voluntary. A reasonable person
would not feel free to walk away from a fully uniformed, armed law enforcement officer
making a specific command to that person to come to the officer. See State v. Guein, 309
Kan. 1245, 1255-56, 444 P.3d 340 (2019). The dynamic is both factually and legally
more oppressive than an officer simply walking up to a person on the street and asking
neutral, nonaccusatory questions. An officer exerts a degree of dominion and control with
a command requiring a person to move in a particular manner or to a particular place that
undoes a sense of choice about compliance and substitutes something approaching
compulsion. 309 Kan. at 1255-56 (reasonable persons would view encounters as
involuntary when "officers immediately exert their authority. . . without advising [persons
they are] free to leave"); State v. Epperson, 237 Kan. 707, 713-14, 703 P.2d 761 (1985)
(Two individuals were seized or detained for Fourth Amendment purposes when a law
enforcement officer told them to "[w]ait" or "[w]ait a minute" as they were walking away
from their lawfully parked car, and the officer immediately began questioning them about
why they were there.).
Colburn's detention or seizure of Taylor would have been constitutionally
permissible at the outset if it were a proper investigatory or Terry stop. But Colburn had
no articulable factual basis to suspect Taylor of immediate criminal conduct as he walked
down the street. Colburn testified that he saw nothing to indicate Taylor had just
committed a crime, was in the process of committing a crime, or was about to commit a
crime—the circumstances justifying an investigatory stop. Taylor's presence in what
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Colburn described as an area with a high incidence of drug trafficking did not justify an
investigatory stop, even assuming the description was accurate. See Illinois v. Wardlow,
528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) ("An individual's presence
in an area of expected criminal activity, standing alone, is not enough to support a
reasonable, particularized suspicion that the person is committing a crime."); State v.
Anguiano, 37 Kan. App. 2d 202, 207, 151 P.3d 857 (2007) (same).
The roll call report from the detective the day before didn't provide Colburn with a
sufficient constitutional basis to stop Taylor or to continue to detain him. The State,
however, suggests the report should be considered under what's called the collective-
knowledge doctrine. Through the collective-knowledge doctrine, one officer may rely on
information or directives to act received from other officers, so their aggregate
understanding of the circumstances may furnish the reasonable suspicion for an
investigatory detention or probable cause for an arrest. See State v. Miller, 49 Kan. App.
2d 491, 496-97, 308 P.3d 24 (2013) (outlining collective-knowledge doctrine); see also
State v. Niblock, 230 Kan. 156, 161, 631 P.2d 661 (1981) (recognizing doctrine without
describing its contours). The officer acting on the shared knowledge or the directive need
not be familiar with details of the imparted information or independently verify its
reliability. But the totality of the information must be constitutionally sufficient to justify
the action taken. Miller, 49 Kan. App. 2d at 497.
Here, however, the roll call report fails in at least two respects. First, it lacked the
immediacy to support an investigatory detention. The report itself was 24 hours old, and
the State never established when the detective received the underlying information that
Taylor purportedly had been in possession of methamphetamine and a handgun. So the
information was too remote to support an investigative detention.
Second, nothing in the record established the origin of the information about
Taylor and, thus, its reliability. Even under the collective-knowledge doctrine, the joint
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reconnaissance must come from reliable sources to justify a constitutionally valid seizure.
Frimmel Management v. United States, 897 F.3d 1045, 1052 (9th Cir. 2018) (for Fourth
Amendment purposes, source of information must be trustworthy and have obtained
information in demonstrably reliable way); Grossman, Whither Reasonableness: The
Supreme Court's Functional Abandonment of the Reasonableness Requirement for
Fourth Amendment Seizures, 53 Am. Crim. L. Rev. 349, 349 (2016) ("Before information
leading to probable cause or its lesser iteration of reasonable suspicion is found to exist,
the government must demonstrate in some meaningful way the reliability of the person
providing the information or of the information itself."). If, for example, an undercover
officer bought drugs from a suspect who was carrying a handgun, that would be reliable
information. Likewise, an informant's tip to a detective that he or she had just heard a
named individual offering to sell large quantities of illegal drugs would be reliable if the
tipster had previously supplied accurate reports of criminal activity. The record here
offers no such verification of the underlying information in the roll call report.
Similarly, the record fails to show how recent the underlying information was.
Even originally reliable information may cease to be so with the passage of time. Thus, a
controlled buy or a tip from weeks earlier, though reliable then, would be too old to
support a valid investigatory detention of a suspect simply spotted walking down the
street. The law enforcement officer making the stop would lack a factual basis to
reasonably infer the suspect then possessed illegal drugs or was otherwise immediately
involved in some other criminal activity. See United States v. Brookins, 345 F.3d 231,
236 (4th Cir. 2003) (officers' observations furnishing probable cause for warrantless
search of motor vehicle for drugs had not become stale in 15 minutes but would have
been so two weeks later). In short, the collective-knowledge doctrine cannot elevate a
constitutionally inadequate basis for a search or seizure to constitutional sufficiency
simply because some of the information had been transmitted from one government agent
to another.
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When Colburn saw Taylor walking down the street, nothing about Taylor's
appearance or conduct cued Colburn that, in the words of Terry, "criminal activity may
be afoot." 392 U.S. at 30. Colburn, therefore, had no reasonable basis compatible with the
Fourth Amendment to detain Taylor. In sum, Colburn unconstitutionally seized Taylor.
In its ruling, the district court described Colburn as "detaining" Taylor when he
got out of the patrol car and sought to question him. The district court explained that
Colburn "should have let him go" but for Taylor's evasive and "furtive gestures"
prompting his continued detention for a pat-down search. The district court correctly
concluded Colburn seized Taylor for Fourth Amendment purposes at the outset of their
contact, meaning there never was a voluntary encounter. The district court found Colburn
both objectively and subjectively believed Taylor had a handgun and his belief supported
a pat-down for weapons.
The flaw in the district court's reasoning lies in its failure to identify a
constitutional basis for the Terry stop or detention of Taylor. As we have explained, the
record does not support one. And the State has attempted to avert that deficiency with its
similarly flawed argument that the contact began as a voluntary encounter. But a law
enforcement officer can search a person for weapons only if the detention itself comports
with the Fourth Amendment as an investigatory stop or a valid arrest. See Terry, 392 U.S.
at 30. In other words, a Terry pat-down must be ancillary to a constitutionally proper
investigatory detention. See Johnson, 555 U.S. 326-27; United States v. Green, 946 F.3d
433, 439 (8th Cir. 2019); cf. State v. Bannon, 306 Kan. 886, 892, 398 P.3d 846 (2017)
(constitutionally valid "stop and frisk" under Terry requires officer "reasonably suspect"
both immediate criminal activity and person detained to be "armed and presently
dangerous"). If the detention itself violates the Fourth Amendment, the pat-down cannot
be independently justified as a constitutionally reasonable search.[1]
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[1]A law enforcement officer could make a full body search—not just a pat-
down—of a suspect arrested on probable cause or a warrant. Arizona v. Gant, 556 U.S.
332, 339, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009); United States v. Robinson, 414 U.S.
218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). Likewise, an officer could pat down a
person during a voluntarily encounter if the person freely and clearly consented. State v.
Lee, 283 Kan. 771, 777-78, 156 P.3d 1284 (2007). This case fits within neither of those
scenarios.
In conclusion, Colburn's pat-down search, yielding the marijuana, flowed directly
and really inextricably from his unconstitutional seizure of Taylor. There was no causal
break or intervening event attenuating the seizure and the search. See Wong Sun v. United
States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The district court should
have granted Colburn's motion to suppress the marijuana as evidence against him.
Without belaboring the obvious, the State's introduction of the marijuana during the trial,
therefore, was error, and it prejudicially compromised Taylor's right to a fair hearing in
front of the jury on the marijuana charge.
We, therefore, reverse Taylor's marijuana conviction, vacate that sentence, and
remand to the district court with directions to grant Taylor's motion to suppress the
marijuana and to conduct any further proceedings consistent with our ruling.
B. Evidence of Battery Against a Law Enforcement Officer and Criminal Threat
Taylor argued in the district court and again on appeal that testimony and other
evidence supporting the charges of battery against a law enforcement officer and making
a criminal threat should be suppressed because the circumstances followed his
unconstitutional detention on the street. Although we have found Colburn violated
Taylor's Fourth Amendment rights in seizing him, we do not find his argument on this
point constitutionally sound.
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We pick up our narrative account of the events of April 26, 2017, to supply the
relevant facts. For purposes of this issue, we rely on the officers' account of what
happened—again because Taylor did not testify at the suppression hearing or the
preliminary hearing. Colburn arrested Taylor after he did the pat-down, handcuffed
Taylor, and extracted the marijuana. Colburn and Armenta then walked Taylor in the
direction of Armenta's patrol car to transport him to jail. According to the officers' later
testimony, Taylor became obstreperous and demanded they "'show some respect.'" Taylor
then began to physically resist and broke free from Colburn, turned toward Armenta, and
headbutted him. Armenta testified the blow split his lip and he cut his finger trying to
subdue Taylor. The officers regained control of Taylor and put him in Armenta's patrol
car.
When Taylor and Armenta arrived at the jail, Taylor continually stared intently at
Armenta in a way the officers described as "confrontational" and even belligerent. A
sergeant at the jail told Taylor to knock it off. Taylor continued what he knew by that
point to be provocative behavior and told Armenta, "I'll be seeing you." At trial, Armenta
testified that those words caused him to fear for his safety.
The State charged Taylor with battery against a law enforcement officer, a severity
level 7 person felony violation of K.S.A. 2016 Supp. 21-5413(c)(2)(B), based on the
headbutt of Armenta, and with criminal threat, a severity level 9 person felony violation
of K.S.A. 2016 Supp. 21-5415(a)(1), based on the statement to Armenta in the jail.
Taylor's theory for suppressing the officers' testimony and other evidence of the
battery and the threat rests on two legal flaws: first, a misapplication of Wong Sun and
the fruit of the poisonous tree doctrine drawn from that decision; and second, an
overextension of the exclusionary rule as a remedy for Fourth Amendment violations.
The exclusionary rule requires suppression of evidence government agents obtain in
violation of a criminal defendant's Fourth Amendment rights, meaning that evidence
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cannot be used to convict the defendant. United States v. Leon, 468 U.S. 897, 908-09, 104
S. Ct. 3405, 82 L. Ed. 2d 677 (1984) ("The Court has, to be sure, not seriously
questioned, 'in the absence of a more efficacious sanction, the continued application of
the rule to suppress evidence from the [prosecution's] case where a Fourth Amendment
violation has been substantial and deliberate.'"). Courts continue to view the exclusionary
rule as the most effective way to deter Fourth Amendment violations on the theory that
law enforcement officers will avoid unconstitutional conduct precisely because the
government will be deprived of the resulting inculpatory evidence in prosecuting accused
criminals. In other words, law enforcement officers will strive to comply with the Fourth
Amendment to avoid the exclusion of otherwise damning evidence of criminal
wrongdoing. See Herring v. United States, 555 U.S. 135, 139-40, 129 S. Ct. 695, 172 L.
Ed. 2d 496 (2009) (The exclusionary rule is "'designed to safeguard Fourth Amendment
rights generally through its deterrent effect.'") (quoting United States v. Calandra, 414
U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 [1974]).
The exclusionary rule, however, can exact a substantial cost in any given case and
may thwart the successful prosecution of a guilty defendant. See Hudson v. Michigan,
547 U.S. 586, 592, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). The relief typically accrues
to defendants who aren't especially deserving based on their own conduct; they benefit as
a byproduct of exacting a punitive price from transgressing government agents to induce
better conduct from them in the future. Accordingly, the evidence suppressed ought to
have a comparatively tight nexus or legally recognized connection to the Fourth
Amendment violation. United States v. Mosley, 743 F.3d 1317, 1323 (10th Cir. 2014);
United States v. Kornegay, 410 F.3d 89, 93-94 (1st Cir. 2005). That's where the fruit of
the poisonous tree doctrine comes in.[2]
[2]The exclusionary rule provides no direct relief to innocent individuals after
government agents violate their Fourth Amendment rights. Those unconstitutional
searches and seizures yield no incriminating evidence to suppress precisely because the
individuals are innocent. In theory, however, the exclusionary rule should deter
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government agents from violating the Fourth Amendment in the first place—heading off
most illegal searches and seizures before they happen.
To apply the doctrine, a court must determine whether government agents have
secured evidence "'by exploitation of'" the violation of the defendant's Fourth
Amendment rights—typically requiring suppression of the fruit (the derivative evidence)
of the poisonous tree (the impermissible search or seizure)—or whether the evidence was
"'purged of the primary taint'" of that violation—typically permitting its use at trial. Wong
Sun, 371 U.S. at 488; see Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056, 2061, 195 L. Ed.
2d 400 (2016) (recognizing doctrine as calling for suppression of evidence "derivative" of
Fourth Amendment violation). So if the challenged evidence is sufficiently purged of the
Fourth Amendment violation or, in legal parlance, "attenuated" from the violation, it may
be used against the defendant. See Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct.
2254, 45 L. Ed. 2d 416 (1975); Wong Sun, 371 U.S. at 487-88; State v. Williams, 297
Kan. 370, 381-82, 300 P.3d 1072 (2013). As with much else in Fourth Amendment law,
an attenuation analysis depends upon the totality of the circumstances. But three factors
typically take center stage: (1) the lapse of time between the Fourth Amendment
violation and the acquisition of the challenged evidence; (2) material intervening
circumstances proximately separating the violation from the acquisition; and (3) the
purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04; Williams,
297 Kan. at 381.
Particularly pertinent here, the fruit of the poisonous tree doctrine rejects but-for
causation as too sweeping a basis to suppress evidence for a Fourth Amendment
violation. Hudson, 547 U.S. at 592. That is, evidence should not be suppressed simply
because it comes to light or arises in some fashion following or "but for" a government
agent's unconstitutional search or seizure. Suppression should be ordered when it serves
"the interest protected by the constitutional guarantee that has been violated." 547 U.S. at
593.
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Those principles necessarily negate Taylor's argument for suppressing evidence of
his own actions in a criminal prosecution for those actions simply because they
immediately followed an unconstitutional seizure and search. Taylor's own intentional
acts that are, at the very least, arguably criminal amount to the sort of intervening
circumstance that would attenuate the preceding Fourth Amendment violation from
evidence regarding or arising from those acts. So, for example, if a law enforcement
officer arrests a person without probable cause and the person flees, the officer may
pursue and arrest the person for obstruction. See K.S.A. 2019 Supp. 21-5904(a)(3) (crime
of interference with law enforcement includes "knowingly obstructing, resisting, or
opposing" a law enforcement officer in discharge of duties). The law enforcement officer
may then constitutionally search the person incident to the second arrest even though the
initial arrest violated the Fourth Amendment. See United States v. Bailey, 691 F.2d 1009,
1018-19 (11th Cir. 1982). And the person may be charged with obstruction. To reiterate,
a person's criminal conduct typically entails a compelling intervening circumstance
driving the attenuation analysis of a Fourth Amendment violation and overriding the fruit
of the poisonous tree doctrine.
And it follows that the criminal conduct itself should not be suppressed as fruit of
the poisonous tree. Here, Taylor's purported criminal conduct was not the result of the
officers directly exploiting the initial and unconstitutional detention in some way—in
contrast to the search of his pockets. Rather, the Fourth Amendment violation and
Taylor's later actions have no more than a but-for causal relationship, and that is
insufficient to suppress them or evidence of them under the exclusionary rule.
More broadly, the expansive exclusionary rule for which Taylor advocates far
exceeds the necessary and sensible deterrent function of such a rule. As this case
illustrates, the rule would insulate from prosecution defendants who intentionally attack
government agents during a detention violating the Fourth Amendment. Most cases
15
would be difficult or impossible to prosecute without the officers' testimony and evidence
from in-car or body video cameras. In his briefing, Taylor advances a categorical rule for
suppression. So his position comes with no outer boundaries and apparently would
require suppression even when an unconstitutionally detained person then uses deadly
force against government agents. That is plainly not the sort of tailored deterrent remedy
the United States Supreme Court has historically crafted or now endorses for Fourth
Amendment violations.
Courts considering comparable arguments have been consistently unswayed. See
State v. Peterman, 42 Kan. App. 2d 761, 765-66, 216 P.3d 710 (2009); United States v.
Sprinkle, 106 F.3d 613, 618-20 (4th Cir. 1997); United States v. Waupekenay, 973 F.2d
1533, 1537-38 (10th Cir. 1992); Commonwealth v. Mock, 54 Mass. App. Ct. 276, 284-85,
764 N.E.2d 924 (2002); State v. Lorenzo, 358 P.3d 330, 335 (Utah Ct. App. 2015); 1
LaFave, Search and Seizure § 1.13(b) (6th ed. 2020). We join them. The district court
properly declined to suppress evidence supporting the charges against Taylor for battery
on a law enforcement officer and criminal threat.
ASSERTED TRIAL ERRORS
Taylor has alleged an array of trial errors that he says individually or collectively
deprived him of a fair hearing in front of the jury. Before taking up those arguments, we
offer an overview of the trial evidence.
During the trial, Colburn and Armenta testified essentially as we have already
outlined and thus consistently with what they said in the pretrial hearings. The sergeant at
the jail testified about Taylor's arrival and what he saw during the booking process. He
testified that he did not hear Taylor threaten Armenta. We augment their accounts with
details pertinent to the specific issues.
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Taylor testified in his own defense and offered a starkly different version of what
happened. He told the jury he was walking down the street when Colburn hailed him and
told him to stop. Taylor said that when he did not, Colburn drew a handgun, pointed it at
him, and ordered him to stop, saying he would "pop [your] bitch ass" if he refused to
comply. According to Taylor, Colburn ordered him to his knees and directed him to put
his hands behind his head. After handcuffing Taylor, Colburn kneed him in the back and
asked if he "like[d] to beat up cops." Taylor explained that in January 2015 a jury found
him not guilty of seven counts of battery against a law enforcement officer.
Taylor testified that when Armenta arrived, the two officers roughed him up.
When he asked why, Colburn replied that they were looking for a gun. According to
Taylor, he then asked why he was being arrested since he had no gun. Armenta
supposedly told Taylor, "[S]hut your mouth." Taylor testified he told Colburn to instruct
Armenta to show him some respect. Armenta supposedly responded that he didn't care
who Taylor thought he was or what respect he thought he deserved and then punched
Taylor in the face. According to Taylor, the officers threw him to the ground and held
him there for about 10 minutes. According to Taylor, Armenta transported him to the jail.
He told the jury nothing happened during the trip or while he was booked into jail.
Taylor testified that he did not have any marijuana when Colburn stopped him, he
did not headbutt or otherwise strike Armenta, and he said nothing to Armenta when they
were at the jail. At trial, Taylor submitted that the officers planted the marijuana and
falsely accused him of striking and later threatening Armenta, presumably to retaliate for
the case in which the jury found him not guilty of battering other law enforcement
officers.
In their appellate briefs, the parties agree that the officers had various audio and
video recording devices available to them during the April 26, 2017 encounter with
Taylor. But none of the devices captured the interaction between Colburn and later
17
Armenta and Taylor on the street. Colburn testified that he failed to activate his audio and
video recorders. Armenta's recording devices worked only intermittently, and his patrol
car's video camera was pointed in the wrong direction. The trip from the street to the jail
was recorded and is uneventful. At the jail, Armenta's devices cut in and out and did not
capture Taylor's statement on which the criminal threat charge was based. The sergeant
testified that his recording devices were inoperative that day.
A. Orders in Limine
Taylor contends the State violated three orders in limine the district court entered
before and during the trial and, as a result, the jurors heard testimony that sufficiently
compromised his right to a fair verdict on the charges. Although we agree two of the
orders were violated, the violations did not rise to the level of reversible error.
A district court's order in limine precludes the parties from even raising, let alone
discussing, certain topics in the jury's presence because their mere mention likely would
create prejudice to one side or the other that would then be difficult to dispel. See State v.
Santos-Vega, 299 Kan. 11, 25, 321 P.3d 1 (2014); State v. Shadden, 290 Kan. 803, 815-
16, 235 P.3d 436 (2010). District courts typically enter orders in limine before trial on a
party's motion, but they may do so during a trial. As an advance ruling on anticipated trial
evidence, the order is interlocutory and subject to revision as the case progresses. State v.
Breedlove, 295 Kan. 481, 494, 286 P.3d 1123 (2012); State v. Adkins, No. 102,560, 2011
WL 1196906, at *6 (Kan. App. 2011) (unpublished opinion). Because the orders exclude
evidence based on undue prejudice relative to any probative value, a district court
exercises broad judicial discretion in policing and remedying possible violations. Those
rulings typically will be reviewed on appeal for abuse of discretion. Breedlove, 295 Kan.
at 494; State v. Crum, 286 Kan. 145, 160, 184 P.3d 222 (2008); cf. State v. Brazzle, 311,
Kan. 754, 466 P.3d 1195, 1200 (2020) (balancing prejudice and probative value of
otherwise relevant evidence entrusted to district court's discretion).
18
Here, the district court entered orders precluding: (1) characterizations of the
neighborhood where the officers and Taylor interacted on April 26, 2017, as being a high
drug or high crime area; (2) references to more than one roll call bulletin about Taylor;
and (3) any purported gang affiliation or membership of Taylor. We first set out the
testimony and related trial circumstances Taylor contends violated each of those orders
and then discuss the legal implications of those claims.
During the trial, the district court granted Taylor's motion in limine to preclude
testimony describing the neighborhood where Colburn stopped him as a "high crime" or
"high drug" area. The issue came up during Colburn's testimony. Outside the presence of
the jury, the district court ordered that the neighborhood be characterized as "residential"
without mention of drug trafficking or criminal activity generally. Colburn was present
when the district court entered the order.
After Colburn resumed his testimony in front of the jury, the prosecutor asked an
open-ended question about what happened. In the midst of his answer, Colburn appeared
to be about to mention recent drug arrests or other crimes in the area. Both lawyers
objected, and Taylor's lawyer immediately asked for a hearing. The district court excused
the jury. Taylor moved for a mistrial, a request the district court declined. The district
court, however, took the opportunity to explain directly to Colburn the limine order. The
jury returned, and Colburn concluded his testimony without straying into forbidden
territory about the neighborhood.
The State recalled Colburn as a rebuttal witness the next day. In resetting the scene
for the events of April 26, the prosecutor directly asked Colburn what kind of
neighborhood he was in when he saw Taylor. Colburn responded that it was a residential
neighborhood that he considered to be "a high crime, high drug area." The answer drew
an immediate objection from Taylor that the district court sustained. At the State's
19
request, the district court told the jury to disregard the characterization of the
neighborhood and to consider it only as residential.
In a second order in limine, the district court precluded testimony about any roll
call reports concerning Taylor apart from the one the detective made the day before
Colburn stopped Taylor. During the trial, the prosecutor asked Colburn about that report,
and he recounted being told Taylor possibly had been seen with a handgun and "a large
amount" of methamphetamine. Taylor's lawyer lodged a hearsay objection that's not
relevant to the appellate issue. The prosecutor then asked Colburn, "Was that the only roll
call that you received regarding Mr. Taylor?" Colburn replied, "[N]o, sir." And the
prosecutor followed up with, "When did you receive another roll call[?]" Taylor's lawyer
again objected, this time based on a violation of the order in limine.
Outside the jury's presence, Taylor again moved for a mistrial. Without directly
ruling on the request or finding a violation of the limine order, the district court
admonished the prosecutor there would be "no more evidence" on roll call reports or
statements made by other officers about Taylor.
Finally, Taylor contends Armenta violated the order in limine about gang
membership during his rebuttal testimony. On cross-examination, Armenta was asked
what he knew about the earlier prosecution of Taylor for multiple counts of battery
against a law enforcement officer that resulted in not guilty verdicts. Armenta testified he
understood the charges arose from Taylor's involvement in "an altercation with several
gang members in a bar." Neither side lodged an objection to the testimony. We dispose of
this claimed error without further legal analysis because the testimony did not even
arguably violate the order. Based on Armenta's terse explanation, Taylor wound up in a
bar fight with some gang members. That doesn't make him a gang member, and Armenta
never said he was. To find a violation of the order, we (and the jury) would have to rely
on an inference that gang members get into fights only with other gang members
20
(whether their own or of a rival gang). And that seems patently unreasonable, especially
when it comes to bar fights. We do not consider this purported violation further.
On appeal, both Taylor and the State analyze the remaining violations under the
standard governing prosecutorial error. We presume that's because the offending
testimony appears to have been prompted, at least in part, by focused questions from the
prosecutor tending to invite those responses. A prosecutor's impertinent or prejudicial
questioning of a witness can amount to trial error. See State v. Kleypas, 305 Kan. 224,
322-23, 382 P.3d 373 (2016); State v. Simmons, 45 Kan. App. 2d 491, 496, 249 P.3d 15
(2011) ("In considering whether a prosecutor's questioning of a witness constitutes error,
the appellate courts apply the same methodology used to evaluate improper statements in
a closing argument."). We assume without deciding that the parties have correctly framed
the errors and the governing analytical principles, since the resulting review is more
favorable to Taylor than the abuse of discretion standard applicable to a district court's
handling of violations of orders in limine.
The Kansas Supreme Court retooled the analysis of prosecutorial trial error in
State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). Although Sherman dealt
specifically with closing argument, the court has since applied the test to the examination
of witnesses during trial. See Kleypas, 305 Kan. at 323-24. The analytical model first
considers whether an error has occurred and then assesses any prejudice to the
defendant's right to a fair trial flowing from the error. Sherman, 305 Kan. at 109.
If an appellate court finds the challenged trial conduct to be prosecutorial error, it
measures prejudice by the test set out in State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d
801 (2011), for a constitutional wrong. The State, as the party benefiting from the error,
must demonstrate "'beyond a reasonable doubt'" that the mistake "'did not affect the
outcome of the trial'" taking account of the full trial record. Sherman, 305 Kan. at 109
(quoting Ward, 292 Kan. 541, Syl. ¶ 6). That is, the appellate court must determine if the
21
error deprived the defendant of a fair trial—a constitutional protection rooted both in due
process and in the right to trial itself. Sherman, 305 Kan. at 98, 109. The prejudice
analysis in Sherman replaced a multifactor standard that also considered the prosecutor's
bad intent or ill will—breaches of professional conduct the court has concluded can be
addressed more directly in other ways. 305 Kan. at 114-15.
The district court found the violation resulting from Colburn's characterization of
the neighborhood to be inadvertent and unintentional. As an appellate court, we are not in
a position to substitute our assessment for that conclusion, especially since the district
saw and heard the violation as it happened. Our vantage point in looking at a
disembodied transcript isn't nearly so informative or nuanced. And we are not prepared to
say the district court's conclusion was clearly erroneous. Colburn's testimony,
nonetheless, violated the order in limine, so we turn to the matter of prejudice.
The prejudice to Taylor was two-fold. First, of course, the jurors heard Colburn's
description of the area as one given to criminal activity generally and drug trafficking in
particular. The jurors, then, might impermissibly infer some guilt by association of
Taylor with the neighborhood. The purpose of the motion and the order in limine was to
avoid just that sort of unfair prejudice. We assume the district court's admonition to the
jurors to disregard Colburn's characterization had some ameliorative effect. See State v.
Mattox, 305 Kan. 1015, 1027, 390 P.3d 514 (2017) (appellate courts presume jurors
follow instructions district court gives them).
The second form of prejudice arose because Taylor's lawyer had to object in front
of the jury to challenge testimony that the State should never have presented. And the
situation unfolded only because the State violated an order in limine. Common wisdom
teaches that jurors do not like objections and typically view them as an effort by the
objecting lawyer to hide something. See Moss, Rethinking Texas Rule of Evidence 103,
56 Baylor L. Rev. 503, 561 (2004) ("Certainly, in criminal cases, with a citizen's freedom
22
on the line, a rule of evidence should not force an accused to choose between appearing
to hide evidence from the jury and waiving his objections to the evidence."); Woodall,
Common Sense Principles of Civil Litigation, 52 Am. Jur. Trials 1, § 64 (1994) ("[A]n
evidentiary fuss in the presence of a jury, particularly when ongoing, gives the
impression of hiding evidence from the jury or serves to reemphasize the objectionable
evidence."). Courts have regularly recognized that in criminal cases a defense lawyer
may make a legitimate strategic decision to forgo a valid evidentiary objection to mildly
prejudicial testimony rather than appear deceptive or obstructionist in front of the jury.
See People v. Mims, No. A147608, 2017 WL 3446606, at *8 (Cal. App. 2017)
(unpublished opinion); People v. Allen, No. 291334, 2010 WL 3666819, at *9 (Mich.
App. 2010) (unpublished opinion) ("The jurors could reasonably have thought that
defendant was attempting to hide some damning evidence had an objection been
raised."); State v. Bloom, No. 03-1537-CR, 2004 WL 744475, at *3 (Wisc. App. 2004)
(unpublished opinion). Again, an order in limine aims to avoid placing a lawyer in
precisely that dilemma; and it works if the other side abides by the order.
Here, the unsavory description of the neighborhood bore on the marijuana
possession charge and the impermissible inference that Taylor had illegal drugs because
he was in a place where drug trafficking ostensibly was common. Although the jury
convicted Taylor of that charge, we do not dwell on the prejudice component of the
Sherman analysis in assessing the issue. We have reversed Taylor's marijuana conviction
based on the improper admission of the marijuana as evidence at trial and have ordered
he receive a new trial on that charge. Taylor would get the same remedy for a violation of
the order in limine. As a result, the issue is moot.
But Colburn's testimony about the character of the neighborhood was wholly
divorced from the charges against Taylor for battery and criminal threat. We fail to see
any initial or residual prejudice against Taylor on those charges. And he makes no
argument to that effect.
23
Turning to the order in limine about roll call reports on Taylor, we assume the trial
testimony amounted to a violation of the order, although the district court made no formal
ruling one way or the other. But armed with that assumption, we discern no material
prejudice to Taylor under the constitutional standard for error identified in Sherman. The
improper testimony—a one-word answer to a single question from the prosecutor—
established only that Taylor was the subject of more than one roll call report. In the
overall scheme of the trial, the exchange could not have tipped the balance for the jury
from not guilty to guilty. There is a respectable argument that the testimony actually
advanced Taylor's theory of defense that the law enforcement officers sought to harass
and frame him because he had been acquitted in the 2015 trial. That is, the department
regularly circulated false reports about Taylor's possible criminal activity to set him up
for precisely the sort of stop Colburn made in this case. Taylor has not shown a basis for
relief because of what we have assumed to be a violation of this order in limine.
B. Cross-Examination of Taylor
As we have outlined, Taylor testified in his own defense and described a
conspiracy among local law enforcement officers to frame him on the charges in this
case. While cross-examining Taylor, the prosecutor challenged his account by asking if
"this is the first time you've presented any of this information to the Court?" In context,
the question appears to refer to the ostensible police setup and fabrication of evidence
against Taylor. And the implication of the question is that Taylor would have come
forward sooner with his account if it were true.
On appeal, Taylor argues the question amounts to an impermissible comment on
his silence after being arrested and likens it to what is commonly called a Doyle violation.
See Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976)
(explaining violation of defendant's due process rights); State v. Kemble, 291 Kan. 109,
24
121, 238 P.3d 251 (2010) (noting rule in Doyle). We are unpersuaded Taylor has shown
the violation of a right analogous to or derivative of the protection the United States
Supreme Court fashioned in Doyle.
A Doyle violation occurs when a prosecutor attempts to impeach a defendant's trial
testimony by pointing out that the defendant declined to answer questions from
government agents who had advised him or her of the right to remain silent and,
therefore, did not provide the exculpatory account at that time. Doyle, 426 U.S. at 617-19.
At the start of a custodial interrogation, law enforcement officers are required to inform a
suspect of various constitutional protections, including the right to remain silent and to
refuse to answer questions. See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966); State v. Aguirre, 301 Kan. 950, 954, 349 P.3d 1245
(2015). In that circumstance, the government effectively invites the suspect to say
nothing—an invitation that necessarily extends to any exculpatory narrative.
In its most corrosive form, a Doyle violation, then, entails the prosecutor cross-
examining a defendant at trial about why he or she didn't disclose that version of events
(or any version, for that matter) during an earlier interview with a law enforcement
officer, thereby suggesting that silence demonstrates the trial testimony to be unworthy of
belief. See 426 U.S. at 613-14. But, as the Court pointed out, the silence could just as
likely be the product of the law enforcement officer's admonition to the defendant that he
or she had the right to decline to answer questions. The Court characterized the
circumstance as "insolubly ambiguous" and recognized it would be inherently unfair to
burden the exercise of that fundamental right by allowing the prosecution to use the
resulting silence to impeach the defendant on cross-examination or to assail his or her
credibility in closing argument. 426 U.S. at 614 n.5, 617-18. The Court held doing so
would violate a defendant's the Fourteenth Amendment due process rights. 426 U.S. at
619.
25
Here, however, the record does not show that law enforcement officers ever
attempted to question Taylor or informed him of his right to remain silent. So the factual
predicate for a Doyle violation is missing. Taylor acknowledges as much and argues that
the district court's appointment of a lawyer to represent him shortly after he was charged
is somehow the equivalent to law enforcement officers informing defendants of their
right to remain silent. And, in turn, the prosecutor's cross-examination of Taylor about
not coming forward with his account impermissibly intrudes upon that right. The
argument, however, is flawed in several respects.
First, the vice of a Doyle violation lies in the government effectively whipsawing a
defendant by inviting his or her silence through the Miranda warnings and then attacking
him or her at trial for accepting that invitation. The appointment of a lawyer to represent
an indigent defendant isn't the same in no small part because an appointed lawyer can't be
likened to a government agent. The lawyer has a constitutional, ethical, and fiduciary
duty of independent allegiance to the defendant and, therefore, is not a government agent
even though he or she may be paid by the State.
Second, in any given case, a defense lawyer and his or her client could decide that
disclosing an exculpatory version of events or some other information to the prosecutor
in advance of trial might be advantageous. By the same token, however, defendants can
choose to keep their accounts confidential as a matter of trial strategy. But they may be
cross-examined about the resulting silence without intruding upon constitutional
protections rooted in due process and the right against self-incrimination. By testifying, a
defendant relinquishes the shield against self-incrimination and may be properly
questioned about what he or she tells the jury as long as the questioning does not trade
upon the defendant's invocation of the right to silence prompted by the State's invitation
to remain silent. See Fletcher v. Weir, 455 U.S. 603, 606-07, 102 S. Ct. 1309, 71 L. Ed.
2d 490 (1982); State v. Massey, 247 Kan. 79, 82, 795 P.2d 344 (1990) (Doyle "stand[s]
for the principle that a defendant's silence induced by government action cannot be used
26
to impeach his credibility"); United States v. Wright, 777 F.3d 769, 778 (5th Cir. 2015)
("The Court's holding in Doyle demonstrates that it is not the arrest and custody that
trigger Doyle protections, but rather the assurance of Miranda warnings.").
Taylor asserts no alternative ground for attributing error to the prosecutor's
question. We find that Taylor has shown no constitutional error emanating from Doyle or
some other purportedly improper use of or comment on his postarrest silence.
C. State's Closing Argument
On appeal, Taylor contends the prosecutor committed two reversible errors during
closing argument to the jury. We have already briefly set out the Sherman standard for
prosecutorial error. In applying that test to a closing argument, an appellate court first
must determine if the prosecutor's comments have exceeded the broad latitude afforded
lawyers in crafting their arguments to juries and, therefore, amount to error. Sherman,
305 Kan. at 109 (The "wide latitude" extended prosecutors in closing argument and
otherwise in presenting the State's case for conviction of a defendant must be exercised
within the duty "to obtain a conviction in a manner that does not offend the defendant's
constitutional right to a fair trial."). If the argument amounts to error, prejudice must be
measured against a criminal defendant's constitutional right to a fair trial, as we have
already discussed. See 305 Kan. at 98, 109.
First, Taylor cites several references by the prosecutor to Taylor's supposed
testimony that Colburn drew his pistol and put it to Taylor's head, touching his hair. But
Taylor actually testified that Colburn pointed the pistol at him and ordered him to kneel
on the sidewalk—not that Colburn made physical contact with the handgun. Colburn, of
course, denied drawing or brandishing his pistol.
27
Lawyers are not supposed to misstate the evidence in their closing arguments,
although they may ask the jurors to draw reasonable inferences from the testimony and
exhibits. State v. Anderson, 294 Kan. 450, 463, 276 P.3d 200 (2012). And the
misstatement is error whether the lawyer acts intentionally or inadvertently. The
prosecutor's comments were, therefore, error. But we fail to see any tangible prejudice
flowing from the rather narrow deviation between the argument and the evidence. The
overarching question for the jury rested on the credibility of Taylor's broad claim that he
had been framed. Part of that included how Colburn treated him during their encounter.
In Taylor's version, Colburn acted abusively by holding him at gunpoint and roughing
him up. Colburn's account cast Taylor as defiant and combative. In those competing
narratives, whether Colburn touched Taylor with his pistol as he brandished it is a
distinction without any legal or factual significance. The error could not have influenced,
let alone shaped, the jury's verdicts.
Second, in describing the evidence of Taylor's guilt to the jury, the prosecutor
declared, "[W]e don't think there's any reasonable doubt." Lawyers are not permitted to
express their personal opinions about the credibility of witnesses or, more generally, the
overall strength of the evidence. State v. Peppers, 294 Kan. 377, 396, 276 P.3d 148
(2012). They may invite the jurors to reach their own reasonable conclusions about
credibility or guilt based on the evidence; and as good advocates, they should guide the
jurors to testimony or exhibits of particular significance. But an advocate's expression of
personal opinion only muddies what is supposed to be the jurors' logical process of
evaluating the evidence and finding facts. And a personal opinion is no less so because it
is couched in a first-person plural or royal "we" rather than a first-person singular "I." See
State v. King, 308 Kan. 16, 34-35, 417 P.3d 1073 (2018). Here, again, we have an
instance of prosecutorial error.
But the error entailed an isolated remark during an extended closing argument. As
a single statement, it appropriately might be labeled a "technical" mistake. The
28
impermissible impact on the jurors would have been somewhere between negligible and
nonexistent. Taylor's claim for reversible error is empty. Moreover, even taking the two
errors in combination, they did not adversely affect the fairness of the trial.
D. Cumulative Error
Taylor argues that even if the various errors he has identified do not individually
require that he be granted a new trial, their cumulative corrosion of the process does.
Appellate courts will weigh the collective impact of trial errors and may afford relief if
their overall effect deprived the defendant of a fair hearing, requiring reversal of a
conviction. State v. Harris, 310 Kan. 1026, 1041, 453 P.3d 1172 (2019); State v. Smith-
Parker, 301 Kan. 132, 167-68, 340 P.3d 485 (2014). An appellate court examines the
entire trial record to assess the aggregate effect of multiple trial errors. 301 Kan. at 167-
68. The assessment takes account of "how the trial judge dealt with the errors as they
arose; the nature and number of errors and their interrelationship, if any; and the overall
strength of the evidence." State v. Miller, 308 Kan. 1119, 1176, 427 P.3d 907 (2018).
We undertake that task here. We have identified two errors arising from violations
of the orders in limine and two errors in the prosecutor's closing argument. Of these, the
violation of the order in limine regarding how the neighborhood should (or should not)
have been characterized was the most significant. As we have explained, however, it bore
on the marijuana conviction that we have reversed for other reasons. The residual impact
of the error on the other convictions was negligible. The violation of the other in limine
order with the single reference to another roll call report about Taylor was similarly
minimal. As we have just explained, the errors in the closing argument seem more
technical than truly tangible and likely had no impact whatsoever on the outcome of the
trial.
29
We are, then, left with no more than minor errors bearing on the convictions for
battery and criminal threat. They remain minor in their collective effect on the trial and
Taylor's right to a fair adjudicatory process. See State v. Cruz, 297 Kan. 1048, 1075, 307
P.3d 199 (2013) ("As we have recognized for decades, '[a] defendant is entitled to a fair
trial but not a perfect one[.]'") (quoting State v. Bly, 215 Kan. 168, 178, 523 P.2d 397
[1974]). Likewise, these were not errors that catalytically had a greater impact because
one enhanced the prejudice of some or all of the others. See Smith-Parker, 301 Kan. at
167-68; State v. Genzel, No. 120,602, 2020 WL 3481499, at *12 (Kan. App. 2020)
(unpublished opinion) ("errors on two fronts . . . infect[ing] the forensic evidence, and . . .
the closing argument" deprived defendant of fair trial).
As we have indicated, the jurors had to give at least some credence to Taylor's
claim that he had been framed to find him not guilty. After observing the officers and
Taylor testify, they did not. The trial errors caused no readily discernible degradation of
that specific decision-making either singularly or collectively. The claim for reversal
based on cumulative error, therefore, evaporates.[3]
[3]Taylor has also argued on appeal that the district court erred in denying his
motion for a new trial. But the motion simply collected errors replicating those he has
raised on appeal. We have found those errors don't warrant a new trial. They weren't
anymore efficacious because they were assembled in a motion presented to the district
court after the verdicts. The district court's denial of the new trial motion, therefore, does
not furnish an independent ground for relief on appeal.
CONCLUSION
Taylor's conviction for possession of marijuana is reversed and that sentence is
vacated. That charge is remanded to the district court with directions to grant Taylor's
motion to suppress as it pertains to the marijuana obtained as a result of his seizure and
search. The district court should permit a new trial on the marijuana charge and take any
30
other action necessary to or consistent with this opinion. Taylor's remaining convictions
and sentences are affirmed.
Affirmed in part, reversed in part, vacated in part, and remanded with directions.
31