State v. Alfaro-Valleda

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 122,301
STATE OF KANSAS,
Appellee,
v.
DENIS ANTONIO ALFARO-VALLEDA,
Appellant.
SYLLABUS BY THE COURT
1.
Autopsy photographs that illustrate the nature and extent of wounds are admissible
when they corroborate the testimony of a witness, including a witness who is not a
pathologist or a medical examiner.
2.
If a prosecutor uses the words "we know" when drawing inferences for the jury
rather than recounting uncontroverted evidence, the prosecutor errs even if drawing a
reasonable inference.
3.
When a judge admits evidence for a limited purpose but does not instruct the jury
about the limitation, an appellate court applies a clear error standard under K.S.A. 2020
Supp. 22-3414 if the party does not object before the jury retires to consider its verdict.
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4.
A district court judge does not err by listing on the verdict form the choice of
finding a criminal defendant guilty before listing the choice of finding the defendant not
guilty.
5.
An appellate court reviewing a cumulative error claim examines the errors in
context, considering whether the district court judge addressed any error; the nature and
number of errors; the relationship, if any, between the errors; and the strength of the
evidence. It applies the constitutional harmless error test of Chapman v. California,
386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), if any of the errors are
constitutional. For the court to affirm a jury verdict under that test, the party benefitting
from any error must establish beyond a reasonable doubt that the cumulative effect of the
errors did not affect the outcome.
Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed January 7,
2022. Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.
Daniel G. Obermeier, assistant district attorney, argued the cause, and Mark A. Dupree Sr.,
district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, C.J.: Denis Alfaro-Valleda directly appeals his conviction of first-
degree premeditated murder. Alfaro-Valleda raises five issues: (1) error in the admission
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of an autopsy photograph that he argues was more prejudicial than probative; (2)
prosecutorial error in closing argument arising from the prosecutor's repeated use of "we
know" before discussing controverted facts; (3) error in failing to instruct the jury on the
limited purpose for which the judge admitted the evidence; (4) error in listing the word
"guilty" before the words "not guilty" on the verdict form; and (5) error that cumulatively
prejudiced Alfaro-Valleda. We conclude the prosecutor erred in the closing arguments,
and we presume the district court erred in not instructing the jury on the limited purpose
for which the judge admitted some evidence. But we conclude those errors did not affect
the jury's verdict. We therefore affirm Alfaro-Valleda's conviction.
FACTS AND PROCEDURAL HISTORY
A jury convicted Alfaro-Valleda of the first-degree premeditated murder of Mike
Arita-Hurtado.
Evidence admitted at trial revealed that, in the hours before his death, Arita-
Hurtado took his girlfriend and her young son to a New Year's Eve party at an apartment
he shared with his sister. Arita-Hurtado and his girlfriend had been dating for only a brief
time. After midnight, Arita-Hurtado left the party to drive his girlfriend and her son to
their home.
Sometime later, as other guests began to leave the party, they heard several
gunshots. After the gunfire ended, one guest left to check what had happened. He quickly
returned, reporting, "They killed Mike." Arita-Hurtado's sister ran out and found her
brother lying face down near his car. The car was running, and the driver's door was
open. As they stood there, Arita-Hurtado's phone rang. His sister answered it and spoke
with Arita-Hurtado's girlfriend who, when asked, said she did not know why anyone
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would shoot Arita-Hurtado. The girlfriend then said that she had talked to Arita-Hurtado
while he was driving back to his sister's. He had told her that someone was following
him.
Patrol officers, responding to a dispatch call of shots fired, found Arita-Hurtado
lying face down near a car that was still running. He had suffered several gunshot
wounds. A crime scene investigator found .380 shell casings nearby.
At Alfaro-Valleda's trial, the lead detective detailed the investigation, which
included interviewing Arita-Hurtado's girlfriend and accessing her cell phone. During this
investigation, officers focused on Alfaro-Valleda as a potential suspect. Alfaro-Valleda
had been in a relationship with Arita-Hurtado's girlfriend and had fathered her child.
Police obtained Alfaro-Valleda's cell phone data information and assigned an
officer to surveil Alfaro-Valleda by using cell tower pings to find the location of his
mobile phone (and presumably him). While watching Alfaro-Valleda's house, an officer
saw a small child arrive at the house. He later observed a black Dodge Journey with
tinted windows arrive and leave the house. Sometime after the black Dodge Journey left,
a cell tower ping suggested Alfaro-Valleda's phone was southbound on I-35. The officer
and his partner left to look for the black Dodge Journey, and they asked the Kansas
Highway Patrol (KHP) for help. KHP located and stopped the vehicle. The car had three
occupants, two adults and a child. The officer saw no baggage or luggage in the car after
it was stopped. The officer identified one of the adults as Alfaro-Valleda and the child as
Alfaro-Valleda's son. A detective discovered Alfaro-Valleda had Mexican currency on
him when stopped.
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Jesus Herrera drove the black Dodge Journey. Law enforcement officers took both
men into custody and interviewed them separately. Herrera told officers that Alfaro-
Valleda said he needed to get out of town because he was accused of a killing. He
reported knowing that Alfaro-Valleda had owned a gun, although he did not see one in
the Journey.
At trial, Herrera testified that he had worked in construction with Alfaro-Valleda.
Alfaro-Valleda called Herrera on New Year's Day and asked for a ride to Texas. Herrera
picked Alfaro-Valleda and his son up at a house. Herrera confirmed that Alfaro-Valleda
did not have any bags or food for the trip. Herrera also testified that he knew Alfaro-
Valleda had a handgun because Herrera had bought a magazine for it, which he had
shipped to Alfaro-Valleda's house.
An officer testified his investigation revealed the magazine was a Hi-Point
magazine that Herrera ordered because Alfaro-Valleda did not have a debit or credit card
he could use to do so. The magazine could hold two different caliber bullets, one of
which matched the caliber used to kill Arita-Hurtado.
Officers interviewed Alfaro-Valleda on two separate days. They first interviewed
him in Ottawa, near where KHP had stopped Herrera's vehicle. During this interview,
Alfaro-Valleda denied any knowledge of the shooting. Officers interviewed him again the
next day after moving Alfaro-Valleda to Kansas City. During this interview, Alfaro-
Valleda made a statement that implicated him in the murder.
At trial, a detective authenticated Alfaro-Valleda's second statement. An audio
recording of the second statement, which was in Spanish, was played to the jury; the jury
could review an English-translated transcript while it played. Alfaro-Valleda told officers
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that his son's mother urged him to show his love for her by killing "whoever she was
with." He believed she set him up, saying, "She provided the rope[,] and I only provided
the neck," which he explained meant, "she set the trap up[,] and I fell into it."
The State also presented a witness who moved Alfaro-Valleda's car from his house
to another location. And they showed the jury video footage from along the path between
Arita-Hurtado's girlfriend's house and his sister's apartment. Officers detailed the path
and pointed out images of two cars that resembled those of Arita-Hurtado and Alfaro-
Valleda. But nothing specifically showed the vehicles belonged to Arita-Hurtado or
Alfaro-Valleda because the license plates were not visible in any of the video clips.
Alfaro-Valleda tried to undermine the State's case through cross-examination of
State witnesses. For example, cross-examination highlighted that his girlfriend had told
detectives that she perceived that no one, including Alfaro-Valleda, was aware of her
relationship with Arita-Hurtado; the investigation never found the firearm used to kill
Arita-Hurtado; no DNA evidence supported the State's case; and no eyewitnesses saw the
murder.
Alfaro-Valleda called one defense witness, who was married to his uncle and who
spent New Year's Eve at her home with Alfaro-Valleda and others. She testified that
Alfaro-Valleda left the house for about 10 to 12 minutes around 11:30 p.m. He otherwise
remained and was still in the house around 1 a.m., when she went to bed. She said he was
very drunk, but otherwise acting normally, both before she went to bed and when she
woke up the next morning. On cross, she conceded her door was closed to her bedroom
and she may not have known if Alfaro-Valleda left the house.
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A jury convicted Alfaro-Valleda of first-degree murder, and a district court judge
imposed a life sentence with no possibility of parole for 50 years. Alfaro-Valleda timely
appealed, and we have jurisdiction under K.S.A. 2020 Supp. 22-3601(b)(3).
ANALYSIS
ISSUE 1: No error in admitting an autopsy photograph
Alfaro-Valleda phrases his first issue on appeal as: "The district court erred by
admitting an autopsy photograph even though the state did not introduce testimony from
a coroner." The photograph, identified as Exhibit 73, shows Arita-Hurtado's head where it
had been opened by the coroner to reveal a bullet.
Before trial, the defense objected to all autopsy photographs. The district court
judge ruled on the defense's objections, admitting some photographs. Then, during a trial
recess during which the jury was not in the courtroom, the admissibility of Exhibit 73
was again discussed by the judge and the attorneys. Defense counsel renewed his
objection and pointed out the autopsy photographs were the same as those "from last
time. There are a few that are duplicative of—a farther away and a close-up photograph
of a wound on a few instances . . . . I would just continue my objection to that Court's
ruling." The judge responded that he thought the State had withdrawn its request to
introduce photographs that were subject to the defense's cumulative evidence objection
during the previous hearing. At that point an off-the-record discussion occurred.
When the record reopened, defense counsel said, "[F]or the record, it's going to be
State's Exhibit 73." He then explained, "This is the photograph that I objected to last time
as gruesome." The district court judge questioned the prosecutor about relevance and
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then, before the prosecutor could answer, said, "I assume you're going to have your
pathologist here to testify?" The State responded it had decided to not call a pathologist
as a witness because the one who performed the autopsy had left the country, omitting
pathologist testimony would speed the trial, and the defense was not disputing the cause
of death. Instead, the State planned to call the crime scene investigator who attended the
autopsy and to have that witness authenticate the photographs he took during the autopsy.
The court again asked, "Then what's the relevance of the photographs?" The
prosecutor replied, "It's going to show where the bullet was removed from the victim.
And I believe any layman can see that a bullet in the head is not good." The State also
pointed out that this was the only photograph that shows where the pathologist removed
the bullet from Arita-Hurtado's head.
The defense responded by explaining that "there's really no objection to the fact
that [Arita-Hurtado] is deceased. I think it's just the State showing that . . . they collected
multiple bullets. . . . [S]o I don't have an objection, Judge, by any means. But I do object
to the . . . gruesomeness of this one."
The judge then ruled that Exhibit 73 "does not appear to rise to the level to be so
gruesome that it would prejudice the defense or would prejudice the jury in such a way. It
appears to be relevant, so the Court will allow it."
When defense counsel again objected just before the photograph's admission, the
judge ruled, "I'll allow that being relevant and find it's not unduly prejudicial."
The crime scene investigator then testified about each of 29 photographic exhibits.
The State reviewed each exhibit with the witness. For most exhibits, the State asked just
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one question about the exhibit and the witness answered with one or two sentences
describing the photograph. This was the case for Exhibit 73:
"Q: And State's Exhibit No. 73, (indicating).
"A: That is the—it's upside down. That's the bullet that was removed from the
victim's skull."
After the investigator testified about each exhibit, the State formally offered the
autopsy photographs for admission, defense counsel objected only to Exhibit 73, and
another discussion occurred outside the hearing of the jury. The judge asked the
prosecutor, "And as I understand, it would assist him as to where he recovered bullets."
The prosecutor responded, "Yes," and the judge ruled that he would allow the admission
of Exhibit 73, noting he would find it was relevant and not unduly prejudicial. The
exhibits were then published to the jury.
On appeal, Alfaro-Valleda again objects to the admission of Exhibit 73. He argues
that "[b]ecause the state did not call a coroner to testify in this case . . . the legion of cases
. . . allowing gruesome photographs to be admitted to 'assist a pathologist in explaining
the cause of death' are inapplicable." The defense argues that other photographs showed
the wounds inflicted and that showing the gruesome autopsy photograph without the
coroner's testimony had only one purpose—to inflame the minds of the jurors.
In response, the State contends Alfaro-Valleda did not preserve the objections he
is now raising on appeal. It also argues the district court judge did not err in finding that
Exhibit 73 was relevant and that its probative value outweighed any prejudice arising
because of a juror's potential sensitivity to photographs of an autopsy.
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1.1 Preservation
We first consider the State's argument that Alfaro-Valleda did not preserve the
issue he raises on appeal because he made a different objection during trial. The basis for
the State's argument is K.S.A. 60-404, which requires a "timely interposed" objection that
is stated so "as to make clear the specific ground of objection" before a verdict can be
reversed because of error in introducing evidence.
Here, Alfaro-Valleda timely interposed an objection to Exhibit 73. The question is
whether the grounds for the objection were specific to the issue on appeal. We have
explained that the Legislature's purpose for enacting the requirements that an objection to
evidence must be both timely and specific is to give the district court "the opportunity to
conduct the trial without using . . . tainted evidence, and thus avoid possible reversal and
a new trial." Baker v. State, 204 Kan. 607, 611, 464 P.2d 212 (1970). Appellate courts
thus will not entertain an evidentiary objection on appeal if the objection does not meet
the requirements of K.S.A. 60-404. See State v. Richmond, 289 Kan. 419, 429, 212 P.3d
165 (2009).
As we will explain more when discussing each aspect of Alfaro-Valleda's
appellate argument related to Exhibit 73, the arguments presented to the district court
judge gave him the opportunity to consider the objections and to rule on them. We thus
conclude Alfaro-Valleda's objection to the evidentiary ruling sufficed to preserve his
appellate arguments for our review.
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1.2 Exhibit 73 relevant
In considering Alfaro-Valleda's arguments, we apply a multistep analysis. We first
consider whether the photograph is relevant. State v. Morris, 311 Kan. 483, 492, 463 P.3d
417 (2020).
As to the question of preservation, the judge's questions to the prosecutor about the
purpose for using Exhibit 73 reveal the judge understood the need to consider relevance
when ruling on Alfaro-Valleda's objection and, indeed, the judge repeatedly and
specifically found the photograph relevant. We thus conclude Alfaro-Valleda preserved
the issue.
We next consider whether the photograph was relevant—that is, whether it has a
reasonable tendency to prove a material fact. Morris, 311 Kan. at 492. Courts split this
test into two questions: (1) Is the evidence material; and (2) is it probative? See State v.
Miller, 308 Kan. 1119, 1167, 427 P.3d 907 (2018). A material fact is one that has some
real bearing on the decision in the case. State v. Richard, 300 Kan. 715, 721, 333 P.3d
179 (2014). Materiality presents a question of law that appellate courts consider de novo
without deferring to the district court judge. Miller, 308 Kan. at 1166. Evidence is
probative if it has any tendency to prove any material fact. 308 Kan. at 1167. We
examine a probative determination for an abuse of discretion by the judge. 308 Kan. at
1166. A district court judge commits an abuse of discretion by (1) adopting a ruling no
reasonable person would make, (2) making a legal error or reaching a legal conclusion
not supported by factual findings, or (3) reaching a factual finding not supported by
substantial competent evidence. State v. James, 309 Kan. 1280, 1305-06, 443 P.3d 1063(2019).
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As to materiality, "photographs which serve to illustrate the nature and extent of
the wounds inflicted are admissible when they corroborate the testimony of witnesses or
are relevant to the testimony of a pathologist as to the cause of death." State v. Verge, 272
Kan. 501, 515, 34 P.3d 449 (2001); see State v. Dupree, 304 Kan. 43, 64, 371 P.3d 862(2006) (quoting Verge, 272 Kan. at 515). Alfaro-Valleda focuses on the second of these
two options—support of the testimony of a pathologist about cause of death. While the
judge at first explored this option, he eventually found the photograph relevant even
though no pathologist testified. But Alfaro-Valleda argues error occurs in admitting the
autopsy photograph for any reason other than support of the pathologist's testimony. For
support, Alfaro-Valleda cites State v. Rodriguez, 295 Kan. 1146, 1157, 289 P.3d 85(2012). Granted, Rodriguez and many other decisions discussing gruesome photographs
tie a photograph's relevance to its support of some aspect of a pathologist's or medical
examiner's testimony. E.g., 295 Kan. at 1157 ("Although [the photographs] may
sometimes be gruesome, autopsy photographs that assist a pathologist in explaining the
cause of death are relevant and admissible."). But none of the decisions hold a
pathologist's or medical examiner's testimony is a prerequisite to the admission of an
autopsy photograph. This case offers an example of materiality despite no testimony from
a pathologist about cause of death.
The judge's colloquy with the attorneys and the crime scene investigator's answer
to the single question posed about Exhibit 73 revealed two alternative rationales leading
to the judge's holding. First, the photograph corroborated the crime scene investigator's
testimony about seeing a bullet removed from the decedent's head during the autopsy.
This testimony verified a step in the chain of custody of the physical evidence that
became important because other evidence showed that the retrieved bullet was of a type
that could have been fired from the magazine Herrera bought for Alfaro-Valleda. Second,
as the prosecutor had first argued, the photograph displaying the bullet retrieved from
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Arita-Hurtado's head also tends to prove the fact and manner of death, both of which
were material facts in the trial even if not controverted. See State v. Seba, 305 Kan. 185,
213-14, 380 P.3d 209 (2016); Dupree, 304 Kan. at 64.
Evidence tying Alfaro-Valleda to the cause of death was both material and
probative. Upon our de novo review, we hold the evidence was material. And we
conclude the district court judge did not abuse his discretion in weighing the probative
nature of the photograph.
1.3 Exhibit 73 not unduly prejudicial
That brings us to the second step of our review. At this step, the judge may still
exclude relevant evidence if the risk of undue prejudice outweighs the probative value of
the evidence. Morris, 311 Kan. at 492. A district court errs by admitting gruesome
photographs that serve only to inflame the jury. State v. Love, 305 Kan. 716, 721, 387
P.3d 820 (2017); Rodriguez, 295 Kan. at 1157. Alfaro-Valleda contends the district court
judge unreasonably disregarded or minimized the gruesome nature of Exhibit 73, and he
argues the State sought its admission for an inflammatory purpose.
As to whether Alfaro-Valleda preserved this objection, his appellate counsel
contends his trial counsel's repeated use of the single word "gruesome" was shorthand for
an objection that the photograph's potential for prejudice outweighed its probative value.
The district court judge appears to have understood that to be the argument because the
judge addressed that balancing in making his ruling. We thus conclude the issue was
preserved.
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When an appellant questions the district court judge's weighing of probative value
and prejudice before us, we review the judge's ruling for abuse of discretion. Alfaro-
Valleda, the party arguing prejudice, bears the burden of proving an abuse of discretion.
Morris, 311 Kan. at 492. Alfaro-Valleda does not argue that the district court judge made
an error of law or fact in conducting this weighing. We thus examine his argument to see
whether the district court judge's weighing was arbitrary, fanciful, or unreasonable. State
v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018).
We conclude the district court judge reasonably decided the photograph was not
unduly prejudicial. The judge's conclusion reflects Kansas law about the admissibility of
autopsy photographs. As this court has stated, "[g]ruesome crimes result in gruesome
photographs." State v. Green, 274 Kan. 145, 148, 48 P.3d 1276 (2002). As a result,
judges regularly admit gruesome photographs in murder cases—often in greater numbers
and reflecting more gruesome images than that shown in Exhibit 73. And we regularly
hold no abuse of discretion occurred in admitting them. E.g., Morris, 311 Kan. at 494-96
(detailing many photographs showing decedent, his injuries, decomposition, and animal
damage to the decedent's body); Seba, 305 Kan. at 213-15 (holding no abuse of discretion
in district court's admission of photograph showing trajectory of bullet through decedent's
brain and photographs of decedent's deceased fetus).
Alfaro-Valleda attempts to distinguish these cases by arguing the photograph here
served no purpose other than to prejudice the jury because he did not contest the cause of
death. He also argues that more prejudice results when the coroner does not testify
because the jury can distinguish between the alterations to the body caused by the
criminal act and those caused by the autopsy procedure if the coroner testifies. As to the
first of those points, we recently rejected a similar argument because "[t]he prosecution
ha[s] the burden to prove beyond a reasonable doubt all elements of the crime charged,
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including the fact and manner of the death and its violent nature, even if those limited
aspects of the case were undisputed." State v. Randle, 311 Kan. 468, 479, 462 P.3d 624(2020). Alfaro-Valleda does not persuade us that a different result is warranted here
where the district court judge admitted only one photograph over Alfaro-Valleda's
objection. As to the second point, the crime scene investigator's testimony, though very
brief, made clear he shot Exhibit 73 during an autopsy and that it depicted where the
bullet was retrieved. These explanations alleviated any potential confusion and explained
the purpose of showing the photograph. That purpose was not to inflame the jurors'
passions but to supply relevant information about the investigation and the evidence from
which they could infer Alfaro-Valleda's involvement as the shooter.
Finally, Alfaro-Valleda argues that Exhibit 73 was unnecessary because other
photographs show Arita-Hurtado's wounds. Alfaro-Valleda's trial counsel raised, and the
judge considered, this objection during the pretrial hearing. Then, during the trial, Alfaro-
Valleda's counsel broadly incorporated his earlier objections. The State noted that Exhibit
73 was the only photograph showing where the pathologist removed the bullet from
Arita-Hurtado's head. The record bolsters the State's argument. Thus, Exhibit 73 was
relevant even if it may have overlapped with other photographs that showed the entry
points of the bullets and the extent of damage they caused.
In summary, Exhibit 73 was relevant, and it was not unduly prejudicial. It was a
moment in a three-day trial; the photograph was introduced and admitted through one
question and one two-sentence answer. The district court did not abuse its discretion in
admitting the photograph.
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ISSUE 2: Harmless prosecutorial error
For his second issue, Alfaro-Valleda points to seven times during the State's
closing argument when the prosecutor pointed the jury to circumstantial evidence and
suggested to the jury that from that evidence "we know" something is a fact—such as that
Alfaro-Valleda shot Arita-Hurtado or that Alfaro-Valleda followed Arita-Hurtado.
Alfaro-Valleda argues the prosecutor effectively asked the jury to accept several
conclusions as known facts, even though he contested the conclusions. And he argues
that our decisions hold a prosecutor commits error by saying conclusions based on
inferences are known or true. E.g., State v. King, 308 Kan. 16, 30-35, 417 P.3d 1073(2018).
The State responds by asking us to overrule King and similar cases in which we
cautioned prosecutors to avoid using the phrase "we know" and found error when they
did not heed the warning. It alternatively argues the prosecutor's statements would not
violate that caselaw. Finally, it argues that any error by the prosecutor did not affect the
jury's verdict.
We analyze these arguments by discussing our caselaw warning against the
practice of using the phrase of "we know" and addressing the State's arguments about
why we should overrule those cases. Because we reject that invitation, we next discuss
whether each of the seven instances was error. Then, because we find the prosecutor
erred, we examine whether the error affected the outcome of the verdict.
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2.1 Legal framework for analyzing prosecutorial error
Looking first at the legal framework, we apply a two-step analysis when
evaluating claims of prosecutorial error. First, we ask whether the prosecutor's comments
fall outside the wide latitude afforded prosecutors. We allow prosecutors to pursue the
State's case and try to obtain a conviction in a manner that does not offend the defendant's
constitutional right to a fair trial. Second, if we decide prosecutorial error occurred, the
State must show beyond a reasonable doubt that any error did not affect the outcome of
the trial—that is, there is no reasonable possibility the error contributed to the verdict.
King, 308 Kan. at 30.
As to the first step, when considered in the context of the arguments raised by
Alfaro-Valleda, a prosecutor's wide latitude does not extend to announcing the
prosecutor's opinion on issues for the jury, including the defendant's guilt or innocence or
witness credibility. In 2016, we cautioned against the use of "I think" or words of similar
import because those words convey a prosecutor's opinion or personal view, and the
prosecutor's view is irrelevant to the jury's task. We suggested prosecutors should replace
such language with "less potentially subjectively loaded phrase[s]," such as "the evidence
shows" or "I submit." State v. Charles, 304 Kan. 158, 175, 372 P.3d 1109 (2016). Two
years later, we concluded a prosecutor errs by using the phrase "we know" during closing
argument in the context of making inferences for the jury because that use conveyed the
prosecutor's opinion, which is irrelevant. See King, 308 Kan. at 34. We warned that this
holding applies "even if the inferences being drawn were reasonable." See King, 308
Kan. at 31, 34-35. But use of a "we know" statement is not prosecutorial error when the
evidence being discussed is not controverted. See 308 Kan. at 34-35.
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We recently reaffirmed King in State v. Douglas, 313 Kan. 704, 490 P.3d 34(2021). Reviewing the prosecutor's closing argument to the jury, we noted he used "we
know" three times in the context of discussing uncontroverted evidence, and we held he
did not commit error by doing so. But we held the prosecutor committed error by saying
"we know" when inferring, based on evidence, that the defendant fired the fatal shot. We
reiterated the general rule that an inference, even a reasonable one, captures the
prosecutor's thought process or opinion and is not an uncontroverted fact. See 313 Kan. at
714-15.
Likewise, we applied King's rationale to another challenged statement in State v.
Blevins, 313 Kan. 413, 485 P.3d 1175 (2021). There, the prosecutor stated, "'There's no
question that there was a plan that was created . . . ,'" and then recited facts the State
argued supported the inference. 313 Kan. at 431. We concluded the "statement veered
over the line of fair comment" because the factual premises that followed supported the
inference a plan existed, not that there was no question on the point. 313 Kan. at 432. We
relied on the King distinction between uncontroverted facts and statements drawing
inferences for the jury in concluding the statement was prosecutorial error.
2.2 King reaffirmed
Conceding that at least one of the seven times the prosecutor used "we know"
when drawing an inference violates the line drawn in King, the State argues we should
overrule King's holding. Yet, "'[w]e do not overrule precedent lightly and must give full
consideration to the doctrine of stare decisis.'" City of Kingman v. Ary, 312 Kan. 408,
416, 475 P.3d 1240 (2020). We take this position because application of stare decisis
promotes stability and continuity, assuring each branch of government—including the
judicial branch—is bound by law. 312 Kan. at 416. While stare decisis is not a "rigid
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inevitability," we generally follow our precedent "unless clearly convinced that the rule
was originally erroneous or is no longer sound because of changing conditions and that
more good than harm will come by departing from precedent." 312 Kan. at 416. The
State did not expressly address principles of stare decisis in its briefing on this issue, but
its briefing implies that the King rule on prosecutorial error was originally erroneous.
One way in which the State constructs this argument is by examining how King
expanded the holding of the case on which it relied, State v. Corbett, 281 Kan. 294, 315-
16, 130 P.3d 1179 (2006). In King, the court quoted a passage from Corbett in which the
court found that the prosecutor used the phrase "we know" only when talking about
uncontroverted evidence. King, 308 Kan. at 31 (quoting Corbett, 281 Kan. at 315-16).
Given that, the Corbett court held "[t]he phrase 'we know' does not indicate his personal
opinion, but demonstrates that the evidence was uncontroverted. Thus, the use of the
phrase 'we know' under these facts is not improper. " Corbett, 281 Kan. at 315-16. The
State argues nothing in Corbett prohibited the use of the phrase "we know" when drawing
an inference.
Granted, Corbett did not explicitly address use of "we know" in the context of an
inference. Yet King's holding is a logical extension of Corbett's discussion of the issue.
The Corbett court explained that a prosecutor crosses the line of permissible argument by
offering the prosecutor's opinion about the evidence because such statements offer
"unsworn, unchecked testimony, not commentary on the evidence of the case." 281 Kan.
at 315. A prosecutor inferring from evidence and adding that "we know" the inference is
valid crosses the line by giving the prosecutor's opinion about the strength and meaning
of the evidence. Although phrased as "we know" instead of "I know," the "we" includes
the prosecutor. But it is the jury's job, not the prosecutor's, to draw those conclusions.
19
The State also argues this court has taken a view different from most other courts.
These courts, the State argues, view "we know" statements as a rhetorical device that
conveys reasonable people would draw the same inference as the one offered by the
prosecutor given the evidence. In this context, these courts conclude the prosecutor does
not offer the prosecutor's opinion, vouch for the evidence, or imply that the State knows
something the jury does not. See, e.g., Crutchfield v. United States, 779 A.2d 307, 320
(D.C. 2001). The State also cites two United States Supreme Court cases for the
propositions that an appellate court must consider counsel's arguments in context and
courts should not infer an ambiguous remark was intended to have its most damaging
meaning. Boyde v. California, 494 U.S. 370, 385, 110 S. Ct. 1190, 108 L. Ed. 2d 316(1990); Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S. Ct. 1868, 40 L. Ed. 2d 431(1974).
Certainly, other courts have chosen a different approach to a prosecutor's use of
"we know," although these courts often discuss the potential problems that can arise. E.g.,
State v. Acuna Valenzuela, 245 Ariz. 197, 218, 426 P.3d 1176 (2018) (noting "these
comments from the prosecutor come close to the line" and cautioning "prosecutors to
refrain from using 'we know' and similar phrases to suggest that their argument bears the
imprimatur of the state"). This court has adopted a stronger approach aimed at thwarting
potential prejudicial conduct because these statements can—and in the context of several
Kansas cases have—amounted to a prosecutor stating the prosecutor's opinion. Simply
because other courts decided not to do the same does not mean King's rule about a
prosecutor's use of "we know" statements was originally mistaken.
Finally, the State argues King and its progeny deviates from our standard
prosecutorial error approach of examining a prosecutor's statement in context. We
disagree. King itself recognizes the importance of examining context. King, 308 Kan. at
20
33 ("Rather than isolating a prosecutor's comment and analyzing it in the abstract,
appellate courts question the comment in the context that it was made."). And the King
holding that the use of "we know" does not automatically create error shows that a court
must look to context when deciding whether a prosecutor errs.
We also note from a stare decisis standpoint that the cases cited by the State
predate this court's decision in King and the more recent decision in Douglas. The cited
cases do not therefore reveal changing conditions that warrant overturning precedent.
And while Kansas may view the use of "we know" in the cases before it differently from
other jurisdictions, we are not persuaded that our original rule was wrong or is no longer
sound. We thus decline the State's request that we abandon our holding in King.
2.3 Error under King
We now consider each "we know" statement to determine whether the statement
constitutes prosecutorial error.
Alfaro-Valleda's first claim of error involves the prosecutor's statement, "The party
ended for Mike when the defendant shot him dead in the parking lot at 2920 Oakland
Avenue. And how do we know that it was the defendant?"
Yet, Alfaro-Valleda controverted the shooter's identity. As outlined above, the
case against Alfaro-Valleda involved circumstantial evidence and his statement to police.
We thus do not know it was Alfaro-Valleda who shot Arita-Hurtado. Instead, concluding
that he was the shooter requires inferring from the evidence presented.
21
Next, Alfaro-Valleda points to this statement: "And how do we know that it was
the defendant? Well, when [Arita-Hurtado] left [his girlfriend's] house, he called [her]."
The State then outlined the call, in which Arita-Hurtado reported he was being followed
by a truck. The testimony that Arita-Hurtado perceived himself to be followed does
nothing to establish Alfaro-Valleda killed Arita-Hurtado or even that Alfaro-Valleda was
the person driving the truck Arita-Hurtado saw following him. It at best provides a link in
the chain of inferences that may support Alfaro-Valleda's conviction.
The next "we know" statement similarly requires inferences be drawn to link
Alfaro-Valleda to the murder. He said: "And how do we know it was the defendant that
was following [Arita-Hurtado]? Well, take [the video], and you see that blue Honda
CRV." The State established a dark Honda SUV, possibly a CRV, was following Arita-
Hurtado shortly before he was killed. And the State established Alfaro-Valleda registered
and drove a blue Honda CRV. But the video did not show that the Honda following
Arita-Hurtado was the same one registered to Alfaro-Valleda or that Alfaro-Valleda was
driving the Honda following Arita-Hurtado. Those conclusions require inferences.
The State also asked the jury to draw inferences linking the gun used to kill Arita-
Hurtado to Alfaro-Valleda: "And we know the defendant has a gun because [Arita-
Hurtado] was shot multiple times." The fact that Arita-Hurtado was shot does not
establish that Alfaro-Valleda had a gun, or that Alfaro-Valleda owned or used the gun
that killed Arita-Hurtado.
Next, the State argued Alfaro-Valleda's gun had a magazine containing the type of
ammunition used to kill Arita-Hurtado: "And what does that magazine contain? .380
ammo. And how do we know that? Because .380 ammo was what was surrounding the
body of [Arita-Hurtado]." This conclusion requires inferences, including: Alfaro-Valleda
22
still owned the gun; the purchased magazine was used to hold .380 ammunition even
though it could hold another caliber; and Alfaro-Valleda used the magazine with the .380
ammunition to kill Arita-Hurtado.
Alfaro-Valleda then calls this court's attention to the State's claim, "How do we
know that it was his conscious objective to [shoot Arita-Hurtado]? He put multiple
bullets inside of [Arita-Hurtado's] body." It may be reasonable to infer that someone who
shot a person multiple times held the conscious objective to kill, but the conclusion still
asks the jury to draw an inference. But other evidence, including Alfaro-Valleda's
insistence he did not know Arita-Hurtado was dating his son's mother, might lead a juror
to reject any inference that person was Alfaro-Valleda.
Finally, on rebuttal, the State argued, "This is beyond coincidence, and this is
personal. How do we know it's personal?" The State then argues stippling observed near
Arita-Hurtado's eye indicates the shooter fired the gun from close range. Proximity to the
victim may support an inference that a killing is personal, but it does not prove that it
was.
We thus conclude the prosecutor made all the "we know" statements in the context
of asking the jury to make an inference about matters that Alfaro-Valleda contested.
Even so, the State argues against the conclusion that any of these "we know"
statements were error, contending the "we know" phrases asserted nothing because they
were mere verbal tics and the prosecutor embedded most in a question. We disagree that
these points lead to a different outcome.
23
An example of a similar phrase being used in a manner that we considered to be a
tic can be found in Charles, 304 Kan. 158. There, we examined claims of error arising
from the prosecutor's repeated use of "I think" during closing arguments. We concluded
that "on repeated reading in context, we are convinced that the 'I thinks' littering the
transcript in this case are mere verbal tics—transitions and time fillers akin to 'um' or 'uh.'
As such, we hold that they were not outside the wide latitude given the prosecutor." 304
Kan. at 175. Here, however, the "we knows" were not transitions or fillers. Each was key
to the meaning of the sentence. And in Charles we cautioned against future use of "I
think" during closing. In contrast, this court in King had admonished prosecutors to avoid
using "I/we know" about a year before the closing argument during Alfaro-Valleda's trial.
We also reject the State's attempt to distinguish King and its progeny because the
prosecutor couched the use of "we know" in a question. This court has ruled a
prosecutor's question to the jury can be error. See State v. Robinson, 303 Kan. 11, 259-61,
363 P.3d 875 (2015), disapproved of on other grounds in State v. Cheever, 306 Kan. 760,
800, 402 P.3d 1126 (2017). We recognized a question can invoke the same meaning as a
declarative sentence and invite the jury to reach a certain conclusion. In Robinson, the
question invited the jury to speculate about events not supported by the evidence. 303
Kan. at 260-61. Here, each "we know" question invited the jury to understand that the
conclusion was fact, something to be known, rather than an inference the jury must draw
on its own or reject after weighing the evidence and arguments. Phrasing the request as a
question rather than a declaration does not change the nature of the communication,
which was an expression of the prosecutor's opinion. And offering that opinion is error
under Kansas precedent. See King, 308 Kan. at 31, 34-35.
24
2.4 Each statement individually harmless
Each of the "we know" statements that Alfaro-Valleda criticizes constitutes
prosecutorial error under our precedent. But any error resulting from any one of these
"we know " statements was individually harmless. A prosecutor's error during closing
argument may be harmless if the State shows beyond a reasonable doubt that any error
did not affect the outcome of the trial—that is, there is no reasonable possibility the error
contributed to the verdict. King, 308 Kan. at 30. We conclude the State met its burden.
The prosecutor followed up each "we know" statement with an explanation of the
evidence he argued supported it. And the court instructed the jury that arguments and
remarks of counsel are intended to help understand the evidence, but counsel's arguments
and remarks are not themselves evidence. Much as in Blevins, 313 Kan. at 432-33, the
prosecutor overplayed his hand by using "we know" when inferences were required. But
it appears unlikely any individual instance affected the verdict given the evidence against
Alfaro-Valleda, including his own statement, and the district court's instruction on
arguments of counsel. We believe beyond a reasonable doubt that the verdict was not
affected by any individual "we know" statement.
2.5 Cumulative impact of the "we know" statement
Although we find each instance of prosecutorial error outlined above was
individually harmless, we now consider the cumulative impact of these statements. In this
context, the State has the burden to convince us beyond a reasonable doubt that the
cumulative impact of the errors did not affect the verdict. Cf. Blevins, 313 Kan. at 433-
34.
25
Alfaro-Valleda argues the evidence of identity here was "hardly voluminous," and
therefore there is a reasonable probability that the jury would have formed reasonable
doubt and reached a different verdict without the State's comments on identity and motive
combined with its characterization of the distance of the shooting as showing it was
personal. We disagree.
The most persuasive evidence at trial was likely Alfaro-Valleda's second
statement. Although in it he did not explicitly say he killed Arita-Hurtado, he implies he
did. He shared that he knew police had caught him and he had gained nothing with his
actions. He offered a reason for his actions—he did it for the mother of his son. He
offered that she told him she would be with another man and that he should prove his
love for her. He also said he was sorry for what he did, and he recognized he would not
see his son. The circumstantial evidence presented at trial established Alfaro-Valleda had
means and opportunity to kill Arita-Hurtado. His own words explained why he did so.
Another factor weighs toward finding the prosecutor's errors did not affect
the verdict. The district court judge instructed the jury:
"Instruction No. 3. Statements, arguments, and remarks of counsel are intended
to help you in understanding the evidence and in applying the law, but they are not
evidence. If any statements are made that are not supported by evidence, they should be
disregarded."
We presume juries follow the instructions. State v. Hillard, 313 Kan. 830, 845, 491 P.3d
1223 (2021).
26
In sum, between Alfaro-Valleda's statement, the evidence presented, and the jury
instruction to disregard counsel's arguments not supported by the evidence, we find the
prosecutor's errors here cumulatively harmless. Cf. Blevins, 313 Kan. at 436. The
prosecutor asked the jury to draw reasonable inferences made compelling by the
evidence. Cf. King, 308 Kan. at 35. We are convinced beyond a reasonable doubt that the
verdict was not affected by the cumulative effect of the seven "we know" statements.
ISSUE 3: No error in not instructing on limited use of out-of-court statements
The next issue arises because the district court judge allowed two witnesses to
testify about statements made by other people who did not testify during the trial. Several
analytical questions arise any time evidence includes a statement made by a witness who
will not testify in court. One of the threshold considerations is: Was the statement
hearsay? K.S.A. 2020 Supp. 60-460 instructs that "[e]vidence of a statement which is
made other than by a witness while testifying at the hearing, offered to prove the truth of
the matter stated, is hearsay evidence and inadmissible except" under circumstances set
out in the rest of the statute.
We must consider whether the two statements met this definition. To determine
this, we must consider the nature of the two statements. In the first one, the State asked
Arita-Hurtado's sister what Arita-Hurtado said when he left the party about what he
intended to do. The district court judge allowed her to testify about Arita-Hurtado's out-
of-court statement, holding the State did not offer it for the truth of the statement—that is,
to represent the truth of what he intended to do—but to show his state of mind. Arita-
Hurtado's sister then testified that he said he would take his girlfriend home and then
would come back and continue to celebrate. The second statement came in the context of
the testimony of a witness who said he had received a text message from an unidentified
27
person who asked him to move Alfaro-Valleda's vehicle. The State asked the witness
what the text said, and Alfaro-Valleda's attorney objected on hearsay grounds. The
district court judge again admitted the evidence, holding the text was not hearsay because
the statement was not being admitted for the truth of the text but only to explain the
witness' actions. The witness then said the text asked him to move the vehicle because of
concern about needing to secure the tools in it.
Alfaro-Valleda's attorney did not ask the judge to instruct the jury—either when
admitting the evidence or when giving closing instructions—about the limited purpose of
the two statements. So the judge did not inform the jury that it should consider the first
statement only to the extent it revealed Arita-Hurtado's state of mind or the second only
as an explanation of the witness' actions. Despite the issue of an instruction not being
discussed at trial, on appeal Alfaro-Valleda argues the district court judge erred by not
instructing the jury on the limited purposes for which it could consider the evidence.
3.1 Framework for reviewing claim
We apply a three-step inquiry for claims of jury instruction error. First, we
consider whether Alfaro-Valleda preserved the issue. Second, we ask whether the
instruction was legally and factually appropriate, using unlimited review of the entire
record and viewing the evidence in the light most favorable to the requesting party. Third,
if error is found, we consider whether the error is reversible. Douglas, 313 Kan. at 709.
Usually, if a party does not preserve the instruction error by requesting the instruction or
objecting to the wording of a given instruction, we review for clear error. K.S.A. 2020
Supp. 22-3414(3); see Douglas, 313 Kan. at 710. Appellate courts applying the clear
error standard reverse a verdict only if an error occurred and the court is firmly convinced
the jury would have reached a different verdict if the instruction error had not occurred.
28
At this point, Alfaro-Valleda, as the party claiming a clear error, has the burden to show
the necessary prejudice. See K.S.A. 2020 Supp. 22-3414(3); State v. McLinn, 307 Kan.
307, 318, 409 P.3d 1 (2018).
Alfaro-Valleda concedes he did not request a jury instruction informing the jury
that the two out-of-court statements could not be used to prove the truth of the matter
asserted. That typically means the clear error standard applies. Here, however, the parties'
arguments raise a question about the application of the clear error standard when a judge
admits evidence for a limited purpose. That question arises because of the wording of
K.S.A. 60-406.
K.S.A. 60-406 states: "When relevant evidence is admissible as to one party or for
one purpose and is inadmissible as to other parties or for another purpose, the judge upon
request shall restrict the evidence to its proper scope and instruct the jury accordingly."
Here, the State asked the district court judge to limit the scope of the evidence to, in one
instance, apply only to Arita-Hurtado's state of mind and, in the other instance, to explain
the witness' actions. Given that request, was the judge required to sua sponte instruct the
jury? And does the statute displace the clear error standard? We conclude the answer to
both questions is, "No."
We read the words "upon request" in K.S.A. 60-406 to apply to both (1) restricting
the proper scope of the evidence and (2) instructing the jury. Our caselaw suggests a
district court may appropriately give a limiting instruction sua sponte. But that caselaw
does not require a judge to do so without a request from counsel, except if K.S.A. 60-455
applies. See State v. Race, 293 Kan. 69, 75-77, 259 P.3d 707 (2011); see also State v.
Kidwell, 199 Kan. 752, 755, 434 P.2d 316 (1967) ("When evidence is introduced for a
limited purpose the trial court should explain the limitation to the jury and limit its
29
application for that purpose." [Emphasis added.]). But see State v. Sims, 308 Kan. 1488,
1505, 431 P.3d 288 (2018) (limiting jury instruction required when evidence admitted
under K.S.A. 2020 Supp. 60-455). K.S.A. 2020 Supp. 60-455, which deals with evidence
of other civil wrongs or crimes, does not apply here.
Outside that context, we see no statutory or other reason to limit counsel from
making the strategic decision to not request an instruction that might bring added
attention to the evidence. We thus hold that limiting evidence under K.S.A. 60-404 and
K.S.A. 60-406 does not automatically lead to a district court judge's duty to instruct the
jury on the limitation.
From that conclusion, it follows that K.S.A. 60-406 does not displace the clear
error standard in K.S.A. 2020 Supp. 22-3414(3). Through that statute the Legislature has
imposed a clear error review for jury instruction issues unless a party objected to "the
giving or failure to give an instruction" and lodged the objection "before the jury retires
to consider its verdict stating distinctly the matter to which the party objects and the
grounds of the objection." This statute reinforces our reading of K.S.A. 60-406 to not
require a judge to sua sponte give a limiting jury instruction. And we hold that, even if
the circumstances implicate K.S.A. 60-406, an appellate court can reverse a verdict for
the failure to give an instruction only if that failure was clear error, unless a party
objected to the failure before the jury retired to consider its verdict.
3.2 No clear error
We next apply the traditional steps of clear error analysis to a claim of jury
instruction error. In doing so, we presume the giving of an instruction here would have
been legally and factually proper. But we conclude the district court judge did not
30
commit clear error by not giving the instruction because we are not convinced the jury
would have reached a different result had the judge given an instruction. See State v.
Nunez, 313 Kan. 540, 55, 486 P.3d 606 (2021). The evidence about Arita's-Hurtado's
state of mind when leaving the New Year's Eve party and the reasons given for having
someone move Alfaro-Valleda's truck had de minimis meaning and were unlikely to
sway a jury.
Alfaro-Valleda claims Arita-Hurtado's statements about his state of mind were
used to support the State's theory that Arita-Hurtado was innocently transporting his
girlfriend and her son home and was "not engaged in any other behavior that could have
precipitated the incident that resulted in his death." But the jury heard other evidence that
Arita-Hurtado followed through on the plans reflected in his statement. Arita-Hurtado's
girlfriend testified he drove her home. Video along the route between the girlfriend's and
the sister's residences showed a car consistent with Arita-Hurtado's driving back toward
his sister's apartment. And the timeline left little room for a detour—either geographically
or in purpose. Given this corroborating evidence, an instruction limiting the purpose for
which the jury could consider the sister's testimony was unlikely to change the jury's
verdict.
Nor would an instruction directing the jury not to consider the truth of the reason
given for moving Alfaro-Valleda's vehicle have influenced the verdict. The person who
moved Alfaro-Valleda's vehicle testified he did so at the request of an unknown person
who pulled the vehicle out of a garage and handed over the keys, suggesting that person
had authority to make the request. Cross-examination clarified that the request to move
the car did not come from Alfaro-Valleda. And, if the jury accepted as true the statement
that the purpose of the move was to protect the tools in the vehicle, the statement likely
supported Alfaro-Valleda's innocence because it offered an innocent explanation rather
31
than leaving the inference the purpose was to hide evidence of guilt. Any damage caused
by not limiting why the jury could consider any text message would not have affected the
verdict.
The evidence complained of here was de minimis given the evidence presented at
trial. As we have already noted, Alfaro-Valleda's second statement, although obscure,
strongly implied he had shot Arita-Hurtado. Alfaro-Valleda has not carried his burden to
firmly convince us that a limiting instruction would have affected the verdict.
ISSUE 4: No error in listing guilty first on a verdict form
Next, Alfaro-Valleda claims error occurred when the district court listed the jury's
choice of finding him guilty before listing the option of not guilty on the verdict form.
Alfaro-Valleda asked the district court judge to reverse the order of the two choices, but
the judge denied the request. We hold the judge did not err.
We recently considered a similar argument in State v. Fraire, 312 Kan. 786, 481
P.3d 129 (2021). There, as here, defense counsel objected to placing the guilty option
before the not guilty option, and the district court denied the objection. We applied the
same standard of review as we apply when reviewing jury instructions, concluding the
verdict form "is part of the packet sent with the jury which includes the instructions and
assists the jury in reaching its verdict." 312 Kan. at 795 (quoting Unruh v. Purina Mills,
LLC, 289 Kan. 1185, 1197-98, 221 P.3d 1130 [2009]). Using that standard, we rejected
the claim of error. We concluded the defendant had made no showing that "the order in
which the verdict form presents the options has any bearing on the likelihood of a jury
reaching one verdict or the other." 312 Kan. at 796. We also observed that "[r]ealistically,
jurors are probably not closely examining the verdict form before they begin their
32
deliberations, and it is unrealistic to suggest they change their collective conclusion when
the foreperson starts to fill out the form." 312 Kan. at 796.
While the State and Alfaro-Valleda cite dueling social science studies, Alfaro-
Valleda gives us no persuasive legal reason to depart from Fraire. Here, as in Fraire, the
district court gave a presumption of innocence instruction:
"Instruction No. 9: The State has the burden to prove the defendant is guilty. The
defendant is not required to prove he is not guilty. You must presume that he is not guilty
unless you are convinced that he is guilty.
"The test you must use in determining whether the defendant is guilty or not guilty is this:
If you have a reasonable doubt as to the truth of any of the claims required to be proved
by the State, you must find the defendant not guilty. If you have no reasonable doubt as
to the truth of each of the claims required to be proved by the State, you should find the
defendant guilty."
We are not persuaded that a jury would ignore this instruction or be swayed by the order
in which options appear on a verdict form. Under our precedent, as reaffirmed in Fraire,
the district court did not err in placing guilty first on the verdict form. And Alfaro-
Valleda does not persuade us to overrule that precedent. See City of Kingman, 312 Kan.
at 416 (discussing stare decisis principles).
ISSUE 5: Cumulative error harmless
Cumulative trial errors, considered collectively, may require reversal when the
errors, under the totality of the circumstances, substantially prejudiced a defendant and
denied a fair trial. When we review a cumulative error claim, several well-established
standards guide us. First, we examine the errors in context, considering whether the
33
district court judge addressed any error; the nature and number of errors; the relationship,
if any, between the errors; and the strength of the evidence. State v. Thomas, 311 Kan.
905, 914, 468 P.3d 323 (2020). Second, we apply the constitutional harmless error test of
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), if, as here,
any of the errors are constitutional. Finally, under the Chapman test, the party benefitting
from the error, here the State, "must establish beyond a reasonable doubt that the
cumulative effect of the errors did not affect the outcome." Thomas, 311 Kan. at 914.
We have decided the prosecutor erred several times during the closing arguments.
And we presumed the district court erred by not giving an instruction limiting the scope
of the jury's consideration of two out-of-court statements. The prosecutor's errors during
closing argument implicated Alfaro-Valleda's right to a fair trial, which means we will
apply the Chapman constitutional harmless error standard.
Even under that heightened standard, we are not persuaded to reverse the jury's
verdict. As we have already discussed, we see no reasonable possibility the seven "we
know" statements of the prosecutor contributed to the verdict here, and any error was
harmless beyond a reasonable doubt. We are not persuaded the calculus changes when we
add into the mix the judge's failure to instruct the jury about the limited use of the two
out-of-court statements. The statement about why Alfaro-Valleda's vehicle was moved
had negligible probative value. The statements about Arita-Hurtado's state of mind
overlapped with evidence introduced at trial in other ways. And allowing the two hearsay
statements without instructing the jury about the limited reason for admitting the
statement had little to no impact on the prosecutorial errors or their impact.
34
We are convinced the jury would have drawn the same inferences and reached the
same verdict without the prosecutorial error and with a jury instruction limiting the
purpose for which the jury considered the two out-of-court statements.
Affirmed.
35