IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 95,088
STATE OF KANSAS,
Appellee,
v.
WILLIAM BRADLEY KING,
Appellant.
SYLLABUS BY THE COURT
1. In Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), the United States Supreme Court held that a prosecutor's use of a defendant's postarrest silence to impeach that defendant's credibility violates the Fifth and Fourteenth Amendments to the United States Constitution.
2. K.S.A. 60-404 requires a timely and specific objection to the admission of evidence at trial in order to preserve issues arising from that admission for appellate review.
3. The contemporaneous-objection requirement of K.S.A. 60-404 is a salutary procedural tool that gives the district court the opportunity to conduct the trial without using tainted evidence, and thus avoid possible reversal and a new trial. The contemporaneous-objection requirement is practically one of necessity if litigation is ever to be brought to an end.
4. Failure to comply with the contemporaneous-objection rule or some other state procedural requirement may bar a challenge, even upon federal constitutional grounds, to a conviction in a state court.
5. In accordance with the plain language of K.S.A. 60-404, evidentiary claims--including claims concerning questions posed by a prosecutor and responses to those questions during trial--must be preserved by way of a contemporaneous objection before those claims may be reviewed on appeal.
6. When a defendant raises an issue on appeal in the prosecutorial misconduct context that is truly an evidentiary question--that is, any claim relating to a prosecutor's questions or answers during direct or cross-examination, or any other claim relating to the admission or exclusion of evidence--the defendant's characterization of the issue cannot avoid the statutory requirement of K.S.A. 60-404 requiring a timely and specific objection at trial. Without objection, such claims are not preserved for appellate review.
7. Alleged Doyle violations that occur during a prosecutor's questioning of a witness involve the improper admission of impeachment evidence; thus, appellate review of such conduct is subject to the contemporaneous-objection rule in K.S.A. 60-404.
8. Appellate courts do not require a contemporaneous objection to preserve questions of prosecutorial misconduct for comments made during a prosecutor's voir dire, opening statement, or closing argument. Instead, such allegations of prosecutorial misconduct are subject to a two-step analysis, which inquires (1) whether the prosecutor's conduct was outside the wide latitude allowed prosecutors when arguing cases; and (2) if so, whether that conduct deprived the defendant of a fair trial.
9. Because it is the duty of the prosecutor in a criminal matter to see that the State's case is properly presented with earnestness and vigor and to use every legitimate means to bring about a just conviction, prosecutors are given wide latitude in arguing the cases before them. Inherent in this wide latitude is the freedom to craft an argument that includes reasonable inferences based on the evidence.
10. Although prosecutors may argue reasonable inferences from the evidence, prosecutors may not comment upon facts outside the evidence. When a prosecutor argues facts that are not in evidence, appellate courts have consistently found that the first prong of the prosecutorial misconduct test is met.
11. Exposing the bias or motive for testifying is a proper subject for cross-examination, and, by extension, the prosecutor is free to argue this point to the jury.
12. An appellate court's review of a restitution plan under K.S.A. 21-4603d(b)(1) can involve three standards of review. Questions concerning the amount of restitution and the manner in which it is made to the aggrieved party are reviewed under an abuse of discretion standard. A district court's factual findings relating to the causal link between the crime committed and the victim's loss will be affirmed if those findings are supported by substantial competent evidence. Finally, appellate courts have unlimited review over legal questions involving the interpretation of the underlying statutes.
13. The language and structure of K.S.A. 21-4603d(b)(1) make clear that restitution is the rule and a finding that restitution is unworkable is the exception, and that it is a defendant's burden to come forward with evidence of his or her inability to pay. When a defendant fails to present evidence before the district court regarding his or her ability to pay restitution, the defendant does not meet this burden, and the district court's order of restitution will not be set aside on appeal.
Review of the judgment of the Court of Appeals in an unpublished opinion filed July 13, 2007. Appeal from Crawford district court; JOHN C. GARIGLIETTI, judge. Judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed. Judgment of the district court is affirmed in part and reversed in part, and the case is remanded with directions. Opinion filed March 27, 2009.
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of the same office, was with him on the briefs for appellant.
Brian P. Duncan, assistant county attorney, argued the cause, and Steve Stockard, assistant county attorney, John Gutierrez, county attorney, and Paul Morrison, attorney general, and Phill Kline, former attorney general, were with him on the briefs for appellee.
The opinion of the court was delivered by
DAVIS, J.: William Bradley King was convicted of rape and aggravated criminal sodomy. During the trial, the prosecutor asked King about his continued silence after receiving Miranda warnings. King did not object to these questions and attempts to raise the alleged violation of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), on appeal based upon a claim of prosecutorial misconduct. The Court of Appeals held that in the absence of a contemporaneous objection under K.S.A. 60-404, King's Doyle claim was not preserved for review. State v. King, No. 95,088, unpublished opinion filed July 13, 2007. We granted King's petition for review on this issue and on a question involving the requirements for ordering restitution pursuant to K.S.A. 21-4603d(b)(1).
In granting King's review on the Doyle issue, we requested and the parties filed supplemental briefing on the following two questions:
"(1) Whether the contemporaneous objection rule, which has been applied to bar consideration of alleged violations of the rule of Doyle v. Ohio, 426 U.S. 610 (1976), can be avoided when the alleged violation is subject to characterization as prosecutorial misconduct.
"(2) Whether prosecutorial misconduct analysis should distinguish between behavior involving admission or exclusion of evidence (e.g., questioning of witnesses on topics covered by a previously granted motion in limine or on a defendant's invocation of his [or] her right to silence or right to counsel) and behavior involving a prosecutor's direct communication with members of the jury (e.g., voir dire, opening statement, closing argument)." State v. King, Order of the Kansas Supreme Court (No. 95,088, issued November 14, 2007).
These questions were prompted by this court's previous recognition of a "potential conflict" between our prosecutorial misconduct analysis and K.S.A. 60-404 in the context of potential Doyle violations. See State v. Hernandez, 284 Kan. 74, 79, 159 P.3d 950 (2007). Today, we clarify that a contemporaneous objection under K.S.A. 60-404 must be lodged by a defendant at trial in order to preserve a Doyle issue for appellate review when the alleged error arises during a prosecutor's questioning of a witness.
Facts
On May 3, 2003, L.E. and her aunt drove from Pittsburg, Kansas, to Joplin, Missouri, because L.E. had just broken up with her boyfriend. In Joplin, the two women spent time drinking at a bar until around 1 a.m. the following day; they then went to a local juice bar. There, L.E. met King, who agreed to drive her back to Pittsburg.
L.E. testified that on the way to Pittsburg, King stopped his truck on a deserted country road near Lamar, Missouri. L.E. explained that King removed L.E.'s clothing and engaged in sexual intercourse with her, although she repeatedly "[told] him no." L.E. stated that she did not physically resist King because she "was scared" because she "didn't know where to go" and "didn't know where [she] was." L.E. also testified that when they were finished having intercourse, King grabbed her by the hair and forced her to perform oral sex on him. L.E. testified to three incidents of attempted or completed intercourse and two incidents of forced oral sex.
According to L.E.'s testimony, after these incidents took place, King told her to put her clothes back on so he could take her home. She stated that King acted regretful and "kept apologizing for raping" her. L.E. also stated that King "told [her] that he had been in prison before and that he was not going back for nothing not even this."
After the truck crossed the state line into Kansas, L.E. testified that King "stopped and . . . said he was going to finish what he started." L.E.'s testimony at this point described a more violent repetition of the earlier sexual assaults in Missouri. According to L.E., King bit her lips and neck and pulled her hair while they had intercourse; he then forced her to perform oral sex on him outside the truck while he continued to hold her hair.
L.E. explained that King got in the truck and drove away when L.E. drew the attention of another vehicle on the road, and L.E. watched as King drove back toward Missouri. She then went to a nearby home, knocked on the door, and informed the residents that she had been raped. Roughly 4 hours passed between the time that King and L.E. left Joplin and the time that the resident of the house called 911 to report the incident.
L.E. was examined by a sexual assault nurse in Pittsburg; this examination showed bruises, reddened areas, or scratches on L.E.'s shoulder, arm, abdomen, thigh, and feet. The nurse noted that L.E. had a "copious amount of hair falling out" and that she had a bald spot.
Steven Weston, chief deputy of the Barton County, Missouri, sheriff's department, was dispatched to Pittsburg on the morning of May 4, 2003, because "there had been an offense . . . or attempt . . . in Missouri, and then also again in Kansas." Deputy Weston testified at trial that although he interviewed L.E., he "limited [his] questions just to what had occurred on the Missouri side of the border."
Deputy Weston took custody of L.E.'s clothing, which was tested at a crime lab in Joplin. The rape kit associated with L.E.'s case was tested in Missouri and Louisiana. The final results of these tests were obtained in May 2004. An analysis of the vaginal swab indicated DNA from both King and L.E.'s former boyfriend.
Deputy Weston then located King at his place of work. King indicated that he had been with L.E. on the night in question and agreed to come to the sheriff's department later to discuss the incident. Later that day, King voluntarily appeared at the Barton County sheriff's department, signed a waiver of his Miranda rights, and provided Deputy Weston with a handwritten statement. The deputy testified at trial that, in general, King's version of the events matched L.E.'s version "almost word for word with the exception of he left out any mention of any kind of sexual contact." The deputy noted that other than this exception, King provided "pretty much the same story" as L.E. King's written statement was admitted into evidence but was not made part of the record on appeal.
In his trial testimony, King stated that he offered L.E. a ride home from Joplin. Once in his truck they returned to the home of his parents–-a farm near Lamar, Missouri, where King also lived--to obtain gas money. He testified that he and L.E. had consensual sexual intercourse in his vehicle a short distance from his parents' house.
King explained that after he retrieved the money from the house near Lamar, he continued driving toward Pittsburg. King stated that he told L.E. while they were driving that he did not have a girlfriend but would "get together and have sex" two or three times per week with the mother of his son. King testified that L.E. changed at this point, stating "[i]t was like Jekyll and Hyde. She [L.E.] said I used her for sex" and told King to pull the truck over so "she could get some air." According to King, this occurred just inside the Kansas state line.
King testified that L.E. remained "just kind of like Jekyll and Hyde," so he said "forget this and . . . left her there." King explained that he went to Pittsburg to put gasoline in his truck and then returned because he "kind of felt bad and . . . was going to pick her up." He did not find L.E., but he "knew she had her cell phone . . . so [he] just went home."
The jury convicted King of rape and aggravated criminal sodomy. The court sentenced him to 221 months' imprisonment for the rape conviction and 109 months' imprisonment for the sodomy conviction and ordered that the two sentences run concurrently. The court also ordered King to pay restitution in the amount of $317 to L.E. and $1,210.07 to the Crime Victims Compensation Board.
King appealed, claiming reversible error in (1) the admission of prior crimes evidence without a limiting instruction; (2) prosecutorial misconduct; (3) cumulative error; (4) ordering him to pay restitution without making findings on the record regarding his ability to pay these amounts; (5) ordering him to reimburse the Board of Indigents' Defense Services (BIDS) for attorney fees without making findings on the record regarding his ability to pay; and (6) using his prior criminal convictions to enhance his criminal history score without submitting these to a jury. The Court of Appeals affirmed the defendant's convictions and sentence and remanded the case to the district court for a determination as to King's ability to pay BIDS fees in light of this court's decision in State v. Robinson, 281 Kan. 538, 548, 132 P.3d 934 (2006). King petitioned this court for review of all issues save the BIDS claim.
We granted review on the questions of prosecutorial misconduct and restitution and ordered supplemental briefing on the question of whether Doyle issues raised in the context of prosecutorial misconduct require a contemporaneous objection to be preserved for review. Additional facts necessary for resolution of these issues are set forth in this opinion.
(1) May a violation of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), be raised on appeal through a claim of prosecutorial misconduct absent a contemporaneous objection required by K.S.A. 60-404?
In Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), the United States Supreme Court held that a prosecutor's use of a defendant's postarrest silence to impeach that defendant's credibility violates the Fifth and Fourteenth Amendments to the United States Constitution. Shortly thereafter, this court adopted the Doyle rationale as the law of this state in State v. Mims, 220 Kan. 726, 730, 556 P.2d 387 (1976). King argues that the prosecutor violated his rights under these opinions by asking a series of impermissible questions during cross-examination of the defendant at trial. We agree with the Court of Appeals and hold that because King failed to object to the prosecutor's questions at trial, the contemporaneous-objection rule of K.S.A. 60-404 forecloses our consideration of this issue for the first time on appeal.
Contrary to his written statement admitted into evidence, King testified at trial that he and L.E. did have sex during their encounter but insisted that the sex was consensual. King explained at trial that he "lied about" not having sex with L.E. in his earlier handwritten statement because he had been to prison before and did not want the police to harass him or to charge him for something he did not do. The prosecutor questioned King on cross-examination about his decision not to include the fact that he and L.E. had consensual sex in his original handwritten statement, when the following exchange took place:
"Q. [PROSECUTOR] . . . but you never told the officers in a handwritten statement that you had consensual sex with [L.E.]?
"A. [KING] No, ma'am.
"Q. To this day you still have never given a handwritten statement that says you had consensual sex with [L.E.]?
"A. Nobody asked me to again.
. . . .
"Q. Did you ever contact the police to give a handwritten statement ever about consensual sex?
"A. No. You're not supposed to if you have an attorney is what I'm told.
"Q. Wouldn't you want them to investigate further?
"A. That's why you tell your lawyer.
"Q. But you had no problems talking to the police when you were first accused of it; right?"
The defendant did not object to any of these questions at trial. Ordinarily, this lack of objection would bar appellate review of the prosecutor's questions. See State v. Sanchez, 282 Kan. 307, Syl. ¶ 1, 144 P.3d 718 (2006). On appeal, however, King claims that the prosecutor's questions during this exchange were impermissible comments on his postarrest silence in violation of Doyle and rose to the level of reversible prosecutorial misconduct. We have recently indicated that a defendant is not required to preserve claims of prosecutorial misconduct at trial by way of a contemporaneous objection--regardless of whether the alleged misconduct results from a prosecutor's questions of a witness or a prosecutor's comments during closing argument. See State v. Manning, 270 Kan. 674, 697, 19 P.3d 84 (2001). In light of the facts of this case, which involve a prosecutor's questions and a defendant's answers to those questions at trial but no allegedly improper comments by that prosecutor during final argument, we now reexamine our decision in Manning.
The Court of Appeals found that King's failure to object to the prosecutor's questions at trial precluded the court from considering the issue on appeal. The Court of Appeals acknowledged the "'potential conflict'" between the requirement that a defendant object to an alleged violation under Doyle to preserve that issue for appeal and claims of prosecutorial misconduct, for which no objection is necessary to preserve review. Slip op. at 15-16 (quoting State v. Hernandez, 284 Kan. 74, 159 P.3d 950 [2007]). The court concluded, however, that because the essence of King's claim involved the admission of evidence of his postarrest silence, the specific objection rule in K.S.A. 60-404 controlled. The Court of Appeals explained that "the gravamen of King's complaint is that a Doyle violation occurred during questioning of King that caused the erroneous admission of evidence." Slip op. at 18. Because King "[did] not complain of any Doyle-related prosecutorial misconduct as a result of the State's closing argument," the Court of Appeals held that the Doyle issue was not preserved for appeal. Slip op. at 18.
Our past decisions have recognized this conflict between the statutorily mandated contemporaneous-objection rule and the appellate standard for reviewing claims of prosecutorial misconduct. See State v. Drayton, 285 Kan. 689, 704-05, 175 P.3d 861 (2008); Hernandez, 284 Kan. at 79. We have declined to address that conflict until now, however, where the issue is squarely presented and the parties have been given the opportunity to fully brief and address the issue in oral argument. See Drayton, 285 Kan. at 705.
Discussion
The contemporaneous-objection rule is codified in K.S.A. 60-404 and provides that a timely and specific objection to evidence at trial is required to preserve issues arising from that admission on appeal:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection."
This court considered the legislature's purpose for enacting the contemporaneous-objection rule in Baker v. State, 204 Kan. 607, 611, 464 P.2d 212 (1970), where we explained that the objection requirement is a "salutary procedural tool" that gives the district court "the opportunity to conduct the trial without using . . . tainted evidence, and thus avoid possible reversal and a new trial." Baker also noted that the contemporaneous-objection requirement is "practically one of necessity if litigation is ever to be brought to an end." 204 Kan. at 611.
Although our previous opinions have recognized a tension between K.S.A. 60-404 and our prosecutorial misconduct analysis in the context of Doyle questions, we have stressed the importance of the contemporaneous-objection requirement and the goals furthered thereby in a number of contexts. For example, in State v. Fewell, 286 Kan. 370, 389, 184 P.3d 903 (2008), this court recently found that the defendant's allegations that the prosecutor committed reversible misconduct by commenting on the credibility of witnesses was truly an evidentiary question that was not preserved for appeal. Fewell explained:
"The purpose of the rule requiring a timely and specific objection is to give '"the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial."' State v. Moore, 218 Kan. 450, 455, 543 P.2d 923 (1975). Fewell's claim of prosecutorial misconduct thwarts the purpose of the specific objection rule. This court has reiterated that '"[t]he law of this state is realistic. Substance prevails over form."' Murray v. Modoc State Bank, 181 Kan. 642, 647, 313 P.2d 304 (1957) (quoting Travis v. Bishoff, 143 Kan. 283, 285, 54 P.2d 955 [1936]). Fewell's prosecutorial misconduct claim is truly an evidentiary issue that has not been preserved for appellate review." 286 Kan. at 389.
Similarly, in State v. White, 284 Kan. 333, 344, 161 P.3d 208 (2007), the court held that the defendant's claim of prosecutorial misconduct, which was based on allegations that the prosecutor impermissibly elicited a narrative response from a witness, "more accurately concerns the alleged erroneous admission of evidence rather than prosecutorial misconduct." The court in White recognized that the defendant's prosecutorial misconduct claim "is presumably framed in this fashion, however, because he failed to object at trial, a requirement for appellate review of evidentiary complaints but not prosecutorial misconduct." 284 Kan. at 344.
Our case law has long held that because Doyle involves the improper admission of impeachment evidence, Doyle questions are likewise subject to the contemporaneous-objection rule of K.S.A. 60-404. Parties must therefore raise a timely and specific objection to alleged Doyle violations in order to preserve those issues for appellate review. See Sanchez, 282 Kan. 307, Syl. ¶ 1 ("An appellate court does not review an alleged violation under Doyle . . . when the defendant fails to raise a timely objection with the trial court."); State v. Haddock, 257 Kan. 964, 973, 897 P.2d 152 (1995), abrogated on other grounds by State v. James, 276 Kan. 737, 79 P.3d 169 (2003) ("A timely and specific objection to the challenged question or comment is necessary to preserve a Doyle issue for appeal."); State v. Fisher, 222 Kan. 76, 84, 563 P.2d 1012 (1977) ("Because the appellant failed to make timely, specific objections to the testimony he now urges was erroneously admitted, the point is not properly before this court on appeal.").
Fisher involved an appeal from the defendant's conviction of indecent liberties with a child and aggravated sodomy. Among the issues raised on appeal, Fisher argued that his constitutional rights had been violated when the prosecutor elicited testimony from a police detective and during Fisher's cross-examination regarding his postarrest silence. This court noted that this testimony would normally raise a question under Doyle and Mims. But because Fisher failed to object to the testimony at trial, the court held that the issue was not preserved for appeal. The Fisher court explained:
"Failure to comply with the contemporaneous objection rule or some other state procedural requirement may bar a challenge, even upon federal constitutional grounds, to a conviction in a state court. Henry v. Mississippi, 379 U.S. 443, 13 L. Ed. 2d 408, 85 S. Ct. 564 [1965]. In State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255, we held that the accused had failed to preserve his claim of due process deprivation where no objection to the offending testimony was interposed at trial. Likewise, in State v. Shepherd, 213 Kan. 498, 516 P.2d 945, we said that the alleged error of eliciting testimony of the accused's post-arrest silence was not properly before this court where no objection was interposed at trial." Fisher, 222 Kan. at 83-84.
This court applied Fisher in Haddock and concluded the contemporaneous-objection rule precluded appellate review of the two alleged Doyle violations for lack of objection. See Haddock, 257 Kan. at 974. Haddock alleged that the prosecutor twice made comments that the defendant, who was charged with the murder of his wife, had never expressed any fear for his children's safety, which would have been the natural response had he been innocent. The court found Haddock "failed to preserve this issue for appeal because no objection was made to the statements on that ground during trial." 257 Kan. at 974 (citing Fisher, 222 Kan. at 83-84).
Our current case law does not, however, require a contemporaneous objection to preserve issues of prosecutorial misconduct for appellate review. See State v. Swinney, 280 Kan. 768, 779-80, 127 P.3d 261 (2006). The decision to review allegations of prosecutorial misconduct regardless of whether a specific objection has been raised is a fairly recent development in our case law. As recent as 1998, this court explained that "Kansas does not follow the 'plain error' rule; reversible error cannot be predicated upon prosecutorial misconduct during closing argument where no contemporaneous objection has been lodged." State v. Heath, 264 Kan. 557, Syl. ¶ 14, 957 P.2d 449 (1998).
In State v. Sperry, 267 Kan. 287, 308-09, 978 P.2d 933 (1999), this court broke with its previous case law and adopted the "plain error" rule for cases of prosecutorial misconduct where "the prosecutor's misconduct is so prejudicial or constitutes a constitutional violation which, if not corrected, will result in injustice or a miscarriage of justice." This newly adopted rule was explained more fully in State v. McCorkendale, 267 Kan. 263, 979 P.2d 1239 (1999), which was decided the same day as Sperry:
"Recently, this court set forth the standards to be followed on appeal in determining whether improper remarks made by a prosecutor during closing argument provide a basis for reversal. [Citations omitted.] In those cases, we stated that Kansas does not ordinarily apply the plain error rule and reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. If the prosecutor's statements, however, rise to the level of violating a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. [Citation omitted.] Where the appellate court, in examining a claimed error of prosecutorial misconduct, determines that the misconduct may rise to the level of violating a defendant's right to a fair trial, the claimed error will be considered. Thus, the plain error rule is recognized where the prosecutor's misconduct is so prejudicial or constitutes a constitutional violation that if not corrected will result in injustice or a miscarriage of justice. [Citation omitted.]" (Emphasis added.) McCorkendale, 267 Kan. at 278.
The McCorkendale court further explained:
"In cases where the issue of prosecutorial misconduct is preserved by objection at trial, and in cases where not so preserved but where the claimed error has been determined to implicate a defendant's right to a fair trial and, thus, rises to the level of a denial of the defendant's Fourteenth Amendment right to due process, the appellate standard of review is the same. [Citation omitted.]" 267 Kan. at 278.
Notably, McCorkendale limited its application of the plain-error rule to cases involving allegations of prosecutorial misconduct during closing argument. See 267 Kan. at 278. In State v. Miller, 268 Kan. 517, 997 P.2d 90 (2000), this court again distinguished between claims of prosecutorial misconduct pertaining to the State's questioning of witnesses and claims involving closing argument. The court dismissed the claims regarding the questioning because "the evidence admitted without objection falls under our contemporaneous objection rule." 268 Kan. at 524. The Miller court found that the claims as to the closing argument were without merit because the "improper arguments were not so gross and flagrant as to have prejudiced the jury against the accused and denied him a fair trial." 268 Kan. at 524; see also State v. Hazley, 28 Kan. App. 2d 664, 19 P.3d 800 (2001) (denying review of an alleged Doyle violation that occurred during the prosecutor's direct examination of a witness because no objection was raised to the testimony, but finding prosecutor's comments on this testimony during closing argument constituted prosecutorial misconduct).
Nevertheless, in Manning, which was decided about a year after Miller, this court held that the same plain-error rule applied when considering closing arguments "also applies when a prosecutor is cross-examining a defendant who has chosen to take the stand." 270 Kan. at 69