State v. Ward

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,549

STATE OF KANSAS,
Appellee,

v.

YVONNE WARD,
Appellant.


SYLLABUS BY THE COURT


1.
K.S.A. 22-3423(1)(c) permits a trial court to declare a mistrial because of
prejudicial conduct, in or outside the courtroom, which makes it impossible to proceed
with the trial without injustice to the defendant or the prosecution. Applying the statute, a
trial court must engage in a two-step analysis. First, the trial court must decide if there is
some fundamental failure of the proceeding. If so, in the second step of the analysis, the
trial court must assess whether it is possible to continue the trial without an injustice. This
means that if there is prejudicial conduct, the trial court must determine if the damaging
effect can be removed or mitigated by admonition or instruction to the jury. If not, the
trial court must determine whether the degree of prejudice results in an injustice and, if
so, declare a mistrial.

2.
On appeal, the trial court's decision denying a motion for mistrial is reviewed
under an abuse of discretion standard.



2

3.
Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal
conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does
not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based.

4.
On appeal, the rubric for analysis of whether the trial court abused its discretion in
deciding if there was a fundamental failure in the proceeding varies with the nature of the
alleged misconduct, such as whether the allegation is based on the actions of a witness,
the actions of a bystander, prosecutorial misconduct, or evidentiary error.

5.
To determine whether an error makes it impossible to proceed with the trial
without injustice, a court must assess whether the fundamental failure affected a party's
substantial rights under Kansas' harmless error statutes, K.S.A. 60-261 and K.S.A. 60-
2105 if a right guaranteed by the United States Constitution is not implicated or else
under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied
386 U.S. 987 (1967), if such a constitutional right is implicated.

6.
Under the harmless error standards of K.S.A. 60-261, K.S.A. 60-2105, and
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386
U.S. 987 (1967), the test is whether the error affected substantial rights, meaning whether
the error affected the outcome of the trial. The degree of certainty by which the court
must be persuaded that the error did not affect the outcome of the trial will vary
depending on whether the error infringes upon a right guaranteed by the United States
3

Constitution. If it does not, the trial court should apply K.S.A. 60-261 and determine if
there is a reasonable probability that the error did or will affect the outcome of the trial in
light of the entire record. If the fundamental failure infringes upon a right guaranteed by
the United States Constitution, the trial court should apply the constitutional harmless
error standard defined in Chapman in which case the error may be declared harmless
where the party benefitting from the error proves beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of the trial in light of the entire
record, i.e., where there is no reasonable possibility that the error contributed to the
verdict. An appellate court will use the same analysis, applying K.S.A. 60-261 and
K.S.A. 60-2105 or else Chapman, depending on the nature of the right allegedly affected.

7.
A trial court almost always abuses its discretion to control the courtroom when it
allows a defendant, witness, or nonwitness to be brought before a jury in jail clothing
without an articulated justification explaining why it is necessary for the individual to
wear jail clothing and does not consider giving an admonition or instruction to the jury
that the jurors should not consider the clothing or the individual's incarceration.

8.
Where an appellate court finds that the trial court erred in its first step of analysis
on a motion for mistrial by finding there had not been a fundamental failure in the
proceeding and, consequently, did not move to the second step of making a prejudice
assessment, the appellate court, without benefit of the trial court's assessment, may assess
whether there was an injustice. The role of the appellate court in this circumstance is to
review the entire record and determine de novo if the fundamental failure in the trial was
harmless. This is a role an appellate court frequently undertakes, and K.S.A. 60-261,
K.S.A. 60-2105, and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705, reh. denied 386 U.S. 987 (1967), provide the tools for this assessment.

4

9.
The right to a fair trial and the right to be presumed innocent, fundamental
constitutional rights guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution, are implicated when an individual in jail clothing is identified to a
jury as an associate of a defendant. Consequently, in determining if a motion for mistrial
should be granted because of the identification, the party opposing the motion must meet
the standard stated in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705, reh. denied 386 U.S. 987 (1967). Under this standard, error may not be declared
harmless unless the party benefitting from the error proves beyond a reasonable doubt
that the error complained of will not or did not contribute to the verdict obtained.

10.
In a case that is before the Kansas Supreme Court on a granted petition for review,
an issue cannot be raised for the first time before the Supreme Court. Any issue that was
not presented to the Kansas Court of Appeals is deemed abandoned.

11.
When examining the sufficiency of the evidence in a criminal case, the standard of
review is whether, after reviewing all the evidence in the light most favorable to the
prosecution, the appellate court is convinced that a rational factfinder could have found
the defendant guilty beyond a reasonable doubt.

12.
The weighing of a witness' credibility is solely within the province of the jury. An
appellate court does not reweigh evidence, assess the credibility of a witness, or resolve
conflicting evidence.

13.
A conviction of even the gravest offense may be based on circumstantial evidence.
5


Review of the judgment of the Court of Appeals in an unpublished opinion filed February 20,
2009. Appeal from Seward District Court; TOM R. SMITH, judge. Opinion filed July 29, 2011. Judgment
of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, argued the cause and was on the briefs for
appellant.

Don L. Scott, county attorney, argued the cause, and Steve Six, attorney general, was with him on
the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Defendant Yvonne Ward appeals her convictions for 14 felonies
related to four separate cocaine sales. She argues the trial court erred in denying her
motion for mistrial, which she made after witnesses for the prosecution identified two
individuals who were sitting in the courtroom and wearing orange jail jumpsuits as
people who were with Ward during one or more of the sales, and she challenges the
sufficiency of the evidence. A panel of the Court of Appeals affirmed, State v. Ward, No.
99,549, 2009 WL 454947 (Kan. App. 2009) (unpublished opinion), and we granted
review. Before us, Ward adds a new issue regarding whether the State proved that a
school located within 1,000 feet of a laundromat where some of the drug sales occurred
was used by a unified school district or an accredited nonpublic school. We decline to
address this issue because it was not presented to or considered by the Court of Appeals
and was not presented in the petition seeking review of the Court of Appeals' decision.
Therefore, the issue was abandoned. Addressing the two issues considered by the Court
of Appeals, we affirm the district court and the Court of Appeals, concluding the trial
court did not abuse its discretion in denying the motion for mistrial and the evidence was
sufficient.

6

In our discussion of the motion for mistrial, we focus on the standard of review
because the parties' arguments and the Court of Appeals' decision reveal potential
inconsistencies in our past decisions and resulting confusion regarding the application of
Kansas' harmless error statutes, K.S.A. 60-261 and K.S.A. 60-2105, and Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987
(1967), which applies when an error implicates a right guaranteed by the United States
Constitution.
FACTS AND PROCEDURAL BACKGROUND

Ward's 14 felony convictions include two counts of the sale or delivery of cocaine
within 1,000 feet of a school (K.S.A. 65-4161[d]; repealed and recodified at K.S.A. 2010
Supp. 21-36a05(a), (c); see L. 2009, ch. 32, secs. 5, 64); two counts of conspiracy to
commit the sale or delivery of cocaine within 1,000 feet of a school (K.S.A. 65-4161[d];
K.S.A. 21-3302); two counts of the sale or delivery of cocaine (K.S.A. 65-4161); four
counts of possession of cocaine without a drug tax stamp (K.S.A. 79-5204); and four
counts of the unlawful use of a communication facility to arrange a drug transaction
(K.S.A. 65-4141); repealed and recodified in 2009 at K.S.A. 2010 Supp. 21-36a07.

All of the counts arose when Ward allegedly sold crack cocaine to Candy Stinnett,
who agreed to cooperate with Detective Jared Wagenseller of the Seward County
Sheriff's Office. Stinnett's cooperation resulted in her buying crack cocaine from Ward
during controlled buys that occurred on January 11, January 25, January 31, and February
7, 2007. In exchange for Stinnett's cooperation, the State agreed to dismiss multiple
criminal charges that Stinnett faced.

Because Ward argues the evidence was insufficient to support her convictions, a
detailed discussion of the evidence is required.


7

Trial Evidence

In describing the first controlled drug buy, Stinnett testified that on January 11,
2007, she was searched, fitted with a wire transmitter, carried documented funds from
law enforcement, and went to a telephone booth at a particular laundromat located within
1,000 feet of Garfield School in Liberal, Kansas. She called Ward and "told her that I
wanted 120," meaning $120 worth of crack cocaine. Ward responded, "I'm on my way,"
and Stinnett pulled her car to the side of the building and waited for Ward to arrive. A
blue Suburban arrived shortly thereafter. A man later identified as Broderick West was
driving, and Ward was sitting in the back seat behind West. Stinnett saw one or two other
individuals in the vehicle, one of whom was later identified as Ward's daughter, "Ms.
Jackson." Stinnett walked up to the passenger-side window and reached inside, holding
the money in her hand. She testified that West took the money and handed it to Ward,
who reached between the seats to pick up the crack cocaine. Ward then handed the drugs
to Stinnett. Stinnett drove to her meeting location with law enforcement officers and gave
the cocaine to Detective Wagenseller. Wagenseller testified that he was parked near the
laundromat and recognized West and Ward. Stinnett subsequently identified Ward and
Jackson in a photo lineup.

Stinnett also testified regarding the second controlled drug buy, which took place
around January 25, 2007. She met again with law enforcement officers, was searched,
was fitted with a wire transmitter, and went to the same laundromat to call Ward. This
time Ward told Stinnett to come to Ward's house. After getting permission from officers,
Stinnett drove to Ward's house, where she knocked on the door and was invited inside.
Stinnett testified that, besides Ward, other people were in the house, including West and
Jackson. Stinnett walked up to Ward, told her she "needed 80," and gave Ward $80. Ward
then handed Stinnett four rocks of crack cocaine. Afterward, Stinnett returned to the
designated meeting location and turned over the drugs to Detective Wagenseller.

8

As for the controlled drug buy on January 31, 2007, Stinnett gave similar
testimony about the search process, being fitted for a wire transmitter, accepting $100
from law enforcement officers for purchasing drugs, going to the laundromat, and calling
Ward to tell her she "needed 100." Again, Ward told Stinnett to come to her house. As
before, while officers waited in the vicinity of Ward's house, Stinnett was invited inside.
Stinnett testified that she heard Ward tell someone to "[l]et her in." Stinnett walked up to
Ward, who was sitting on the living room sofa, and gave her the $100. In return, Ward
gave Stinnett five rocks of crack cocaine. Stinnett then met with officers and gave the
drugs to Detective Wagenseller.

The last drug transaction between Stinnett and Ward occurred on February 7,
2007. Stinnett testified that, wearing a wire transmitter and carrying $80 provided by
officers, she called Ward from the laundromat. This time Ward told Stinnett, "I'm on my
way," and met her around the side of the building. Ward, again, arrived in the blue
Suburban. West was driving, and Ward sat in the passenger seat. Stinnett approached the
passenger-side window. Stinnett described a "rock" sitting on the center console, off of
which Ward cut four rocks of crack cocaine with a razor blade. Ward handed the four
rocks to Stinnett. When the Suburban left, Detective Wagenseller recognized the
occupants as West and Ward. He followed the Suburban to Ward's residence before
returning to the designated meeting place, where he met Stinnett who handed over the
drugs.

After these controlled drug buys, Ward was arrested. The events surrounding the
arrest and investigation were detailed at trial by several law enforcement officers.
Detective Wagenseller's trial testimony gave rise to the motion for mistrial that is the
focus of an issue on appeal. The motion was made by defense counsel after Detective
Wagenseller identified Ward's associates, West and Jackson, by pointing them out while
they sat in the courtroom. Both individuals were dressed in orange jail jumpsuits.

9

Detective Wagenseller identified West while explaining that Ward had been a
passenger in a blue Suburban during the January 11, 2007, sale. When the detective was
asked who was driving, the detective indicated it was West. The prosecutor then asked,
"And is Mr. West in the courtroom today?" Wagenseller responded affirmatively and,
when asked to point to West, stated, "He's sitting in the back of the courtroom, wearing
oranges."

Later in Detective Wagenseller's testimony he identified Jackson, who was also
dressed in an orange jumpsuit. This identification occurred when the prosecutor asked
Detective Wagenseller to explain a photo lineup he used to confirm Stinnett's
identification of Ward. The detective responded that he gave Stinnett a photo lineup of
six unnamed females and asked Stinnett to identify Ward. Stinnett marked two photos,
identifying one as Ward and the other as Jackson. The prosecutor's next question was
whether Jackson was in the courtroom; Wagenseller answered that she was and that she
was "seated in the first row, the second individual wearing oranges, the smaller female."
(There were three individuals wearing jail clothing, but only two of them were identified
by witnesses during the State's case-in-chief.)

Both of these identifications occurred without immediate objection. A short time
later, defense counsel objected outside the presence of the jury and asked for a mistrial,
arguing that West and Jackson were not listed as witnesses and allowing them to remain
in the courtroom in jail clothing after being associated with Ward would prejudice Ward.
In response, the prosecutor explained that he wanted to show that Stinnett knew the
individuals she was identifying, that West was identified as an alleged coconspirator in
the case, and that the State was trying to preclude Ward from claiming that "some other
dude did it." The trial court denied the motion for mistrial, without making any finding or
conclusion other than mentioning there was no evidence of prejudice.

10

In addition, the trial court allowed West and Jackson to remain in the courtroom,
which led to another identification of West as an associate of Ward. This subsequent
identification occurred when Stinnett identified West as the Suburban's driver during the
January 11, 2007, sale; she pointed out that he was "in the orange suit sitting next to the
gentleman in the gray shirt." Then, after she testified he also drove the Suburban on
February 7, 2007, the prosecutor asked her to confirm that West was in the courtroom.
She referred to West as "the only gentleman in the orange, sitting in the back of the
courtroom."

Based on this evidence and some additional evidence we will discuss as necessary,
the jury convicted Ward on the multiple counts related to these cocaine sales.

Court of Appeals' Decision

Ward appealed to the Court of Appeals and argued the trial court erred in denying
her motion for mistrial and the State's evidence was insufficient to support the jury's
verdict.

Regarding Ward's assertion that the trial court erred in failing to grant her motion
for mistrial, the Court of Appeals, after finding no guidance on the issue of whether
witnesses for the prosecution may identify individuals as associates of the defendant
while those individuals are dressed in jail clothing and seated in the courtroom, stated:

"It seems elemental that to avoid potential prejudice, the State should be
discouraged from needlessly associating defendants with individuals whose attire
identifies them as inmates. Here, however, the district court accepted the State's argument
that the identification of West and Jackson served legitimate purposes. The district court
has a distinct advantage over this court in determining whether actions in the courtroom
are sufficiently prejudicial to warrant a mistrial. See K.S.A. 22-3423." Ward, 2009 WL
454947, at *5.
11


Additionally, the Court of Appeals held that even if it were to conclude that the
trial court abused its discretion in denying Ward's motion for mistrial, Ward failed to
establish that her substantial rights were prejudiced by the error. Because of the
substantial evidence supporting Ward's convictions, the panel concluded that the
witnesses' identifications of West and Jackson as associates of Ward had little, if any,
likelihood of changing the outcome of the trial. Ward, 2009 WL 454947, at *5.

Regarding the sufficiency of evidence issue, Ward made general assertions that (a)
the only evidence linking Ward to the crimes was Stinnett's testimony and that testimony
lacked credibility and (b) the State failed to present audio, video, forensic, or other direct
evidence connecting Ward to the crimes.

In rejecting these arguments, the Court of Appeals panel pointed out that the jury
was made aware of Stinnett's cooperation with law enforcement in exchange for the
dismissal of charges against her, some of which were drug related, and Ward was asking
the court to reweigh credibility. Ward, 2009 WL 454947, at *1. The court also noted
there was more than sufficient evidence, both direct and circumstantial, from which "a
reasonable jury could infer that Ward was connected to the drug transactions." Ward,
2009 WL 454947, at *2.

Having rejected both of Ward's arguments, the Court of Appeals affirmed. Ward
filed a petition for review, which this court granted. Our jurisdiction arises from K.S.A.
20-3018(b) and K.S.A. 22-3602(e).

I. MOTION FOR MISTRIAL

We will first consider Ward's argument that the trial court erred in denying her
motion for mistrial in which she alleged that allowing Detective Wagenseller to identify
12

West and Jackson while they were sitting in the courtroom wearing orange jail jumpsuits
was "highly prejudicial." Ward did not renew this objection later in the trial when
Stinnett made another identification of West and did not renew her motion for mistrial at
that time or at the conclusion of all of the evidence. Hence, the trial court considered this
mistrial issue mid-trial.

On appeal, Ward argues that the presence of her associates in distinctive jail
clothing prejudiced her rights to a fair trial and to a presumption of innocence as
guaranteed by both the United States Constitution and the Kansas Constitution. The State
responds that Ward "made no showing of prejudice and it was not an abuse of discretion
to deny the defendant's motion for mistrial."

A. Legal Principles/General Standard of Review

K.S.A. 22-3423(1)(c) permits a trial court to declare a mistrial because of
"prejudicial conduct, in or outside the courtroom, which makes it impossible to proceed
with the trial without injustice to the defendant or the prosecution." Applying this statute,
a trial court must engage in a two-step analysis. First, the trial court must decide if "'there
is some fundamental failure of the proceeding.'" State v. White, 284 Kan. 333, 343, 161
P.3d 208 (2007) (quoting State v. Lewis, 238 Kan. 94, 97, 708 P.2d 196 [1985]). If so, in
the second step of the analysis, the trial court must assess whether it is possible to
continue the trial without an "injustice." This means, as we explained in White, that if
there is prejudicial conduct, the trial court must determine if the damaging effect can be
removed or mitigated by an admonition or instruction to the jury. If not, the trial court
must determine whether the degree of prejudice results in an injustice and, if so, declare a
mistrial. White, 284 Kan. at 343.

On appeal, the trial court's decision denying a motion for mistrial is reviewed
under an abuse of discretion standard. State v. Leaper, 291 Kan. 89, 96-97, 238 P.3d 266
13

(2010); State v. Foster, 290 Kan. 696, 718, 233 P.3d 265 (2010). Judicial discretion is
abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable
person would have taken the view adopted by the trial court; (2) is based on an error of
law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an
error of fact, i.e., if substantial competent evidence does not support a factual finding on
which a prerequisite conclusion of law or the exercise of discretion is based. State v.
Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010). In some cases, this three-part
standard may narrow the broad discretion previously allowed when this court routinely
applied only the no-reasonable-person-would-take-the-same-view standard. See, e.g.,
State v. Ransom, 288 Kan. 697, 715, 207 P.3d 208 (2009) (mistrial abuse of discretion
standard "does not change even if legal error prompted consideration of a mistrial";
applying standard of whether any reasonable person would take the same view).

Applying the abuse of discretion standard of review, an appellate court focuses on
the two questions analyzed by the trial court and asks: (1) Did the trial court abuse its
discretion when deciding if there was a fundamental failure in the proceeding? and (2)
Did the trial court abuse its discretion when deciding whether the conduct resulted in
prejudice that could not be cured or mitigated through jury admonition or instruction,
resulting in an injustice?

The rubric for analysis of the first question varies with the nature of the alleged
misconduct, such as whether the allegation is based on the actions of a witness, the
actions of a bystander, prosecutorial misconduct, or evidentiary error. See Leaper, 291
Kan. at 96-104 (conduct of witness in allegedly stealing an offered exhibit from witness
stand); Foster, 290 Kan. at 718-21 (conduct of bystander in crying during victim's
testimony); White, 284 Kan. at 340-44 (prosecutorial misconduct in the form of
inappropriate questioning and argument); State v. Tatum, 281 Kan. 1098, 1110, 135 P.3d
1088 (2006) (evidentiary error in admitting K.S.A. 60-455 evidence).

14

As to the second inquiry of whether the conduct "makes it impossible to proceed
with the trial without injustice," an appellate court's vantage point may be broader than
was that of the trial court. An appellate court will examine the entire record whereas,
depending on the timing of the motion for mistrial, the trial court may have made the
assessment before the trial's end. See generally Leaper, 291 Kan. at 96-97; White, 284
Kan. at 343-44; see also K.S.A. 60-2105 (appellate harmless error statute, stating
prejudice caused by error is assessed "upon the whole record"). Regarding the test against
which the record is examined, the parties cite to cases that state the standard in three
different ways. While at first glance it appears three different standards were applied in
the various cases, we ultimately conclude that one standard has been applied, but that
standard has been expressed in different ways. Some discussion of the cited cases is
necessary to explain this conclusion.

1. The State's Standard: Was the Outcome Affected?

The State cites State v. Rinck, 256 Kan. 848, 888 P.2d 845 (1995). In that case,
this court concluded the trial court did not abuse its discretion in denying a motion for
mistrial because the alleged misconduct—a witness' statement that he ran into the
defendant after the defendant had been released from prison—"could not have affected
the result at trial." Rinck, 256 Kan. at 854. Similar language has been used in recent
decisions. For example, in State v. Dixon, 289 Kan. 46, 55, 209 P.3d 675 (2009), we
indicated that an appellate court "should consider whether a limiting instruction was
given, the degree of prejudice, and whether any evidence improperly admitted would
affect the outcome of the trial." (Emphasis added.)

Neither of these cases explains the origin of the "would affect the outcome of the
trial" standard. Rather both cite to prior cases that, in turn, cite to prior cases. Tracking
this judicial lineage eventually leads to previous versions of K.S.A. 60-261 as the source
of the standard. (Rinck, 256 Kan. at 853, cites to State v. Mitchell, 220 Kan. 700, 703, 556
15

P.2d 874 [1976], and Dixon, 289 Kan. at 55, cites to State v. Sanders, 263 Kan. 317, 324,
949 P.2d 1084 [1997], which in turn cites to Mitchell. Mitchell cites to State v. Bly, 215
Kan. 168, 178, 523 P.2d 397 [1974], overruled on other grounds by State v. Mims, 220
Kan. 726, 556 P.2d 387 [1976], disapproved on other grounds by State v. Gunby, 282
Kan. 39, 144 P.3d 647 [2006]. In Bly, 215 Kan. at 178, the court cites to the statutory
source, K.S.A. 60-261. The 2010 amendments to K.S.A. 60-261 did not change the
substance of the statute that was in effect in Bly or at the time of Ward's trial; the
amendments are stylistic only. See K.S.A. 2010 Supp. 60-261; Judicial Council Civil
Code Advisory Committee, Report to Judicial Council regarding Proposed Amendments
to the Kansas Code of Civil Procedure, Comments to K.S.A. 60-261, p. 159 [December
4, 2009]).

2. The Court of Appeals' Standard: Were Substantial Rights Affected?

By an equally circuitous route, we conclude the standard stated by the Court of
Appeals also derives from K.S.A. 60-261. Yet, the wording of the standard was different;
the Court of Appeals stated that Ward "failed to establish that her substantial rights were
prejudiced by the error." State v. Ward, No. 99,549, 2009 WL 454947, at *5 (Kan. App.
2009) (unpublished opinion) (citing State v. Albright, 283 Kan. 418, 425-26, 153 P.3d
497 [2007]). This wording has been used by this court in several recent decisions,
including Leaper, 291 Kan. at 96-97, and State v. Angelo, 287 Kan. 262, 283-85, 197
P.3d 337 (2008).

Although Leaper, Angelo, Ward, and many other cases using this language do not
cite to K.S.A. 2010 Supp. 60-261, the "substantial rights" wording echoes the language of
that provision, which currently states:

"Unless justice requires otherwise, no error in admitting or excluding evidence,
or any other error by the court or a party, is ground for granting a new trial, for setting
16

aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At
every stage of the proceeding, the court must disregard all errors and defects that do not
affect any party's substantial rights." (Emphasis added.) K.S.A. 2010 Supp. 60-261.

3. The Link Between the Standards

The text of K.S.A. 60-261 explains the source of the "substantial rights" language.
Yet, the statute does not specify a test for determining whether a party's substantial rights
are affected. Despite the lack of statutory language, we have frequently stated that the test
is whether the error affected the outcome of the trial. This test is widely accepted and has
been used by the United States Supreme Court for more than a half-century and by this
court for a century. E.g., Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct.
1239, 90 L. Ed. 1557 (1946); Bly, 215 Kan. at 178; Smith v. Union Pacific Railroad Co.,
214 Kan. 128, 132, 519 P.2d 1101 (1974); Saunders v. Railway Co., 86 Kan. 56, 62, 119
P. 552 (1911); see generally 2 Childress & Davis, Federal Standards of Review § 7.03
(4th ed. 2010).

At the federal level, the phrase "affect the substantial rights" was codified in 1919
at 28 U.S.C. § 391, which provided that appellate courts should decide cases based on the
entire record of the case "without regard to technical errors, defects, or exceptions" that
do not "affect the substantial rights of the parties." See Kotteakos, 328 U.S. at 757. In
Kotteakos, the United States Supreme Court noted that the phrase "affect the substantial
rights" also had been incorporated in the harmless error rule, Rule 52(a) of the Federal
Rules of Criminal Procedure, which the Court characterized as a "restatement of existing
law." Kotteakos, 328 U.S. at 757 n.9. The Court then concluded that an error "affected
the defendant's substantial rights" if it had a "substantial and injurious effect or influence
in determining the jury's verdict." Kotteakos, 328 U.S. at 776.

17

Since Kotteakos, the United States Supreme Court has consistently reiterated that
an error affected substantial rights when it had a prejudicial effect on the outcome of the
proceeding. See United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S. Ct. 2333,
159 L. Ed. 2d 157 (2004) (the phrase "'error that affects substantial rights'" means "error
with a prejudicial affect on the outcome of a judicial proceeding"); United States v.
Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (The plain error
rule of Fed. R. Crim. Proc. 52[b] requires showing that the error affected substantial
rights; "[t]his is the same language employed in Rule 52[a], and . . . means that the error
must have been prejudicial: It must have affected the outcome of the . . . proceedings.");
United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 88 L. Ed. 2d 814 (1986)
(quoting Kotteakos, 328 U.S. at 776 and concluding that error involving misjoinder
affected substantial rights requiring reversal "only if the misjoinder results in actual
prejudice because it 'had a substantial and injurious effect or influence in determining the
jury's verdict'").

A similar history can be traced in Kansas cases. In 1911, this court discussed the
version of K.S.A. 60-261 that was then in effect. The statute required the court to ignore
"technical errors" and defined a reversible error as one that "prejudicially affected the
substantial rights of the party complaining." G.S. 1909, 95-6176 (Civ. Code § 581). The
court explained that a court must

"disregard immaterial errors and rulings that do not appear to have influenced the verdict
or impaired substantial rights. The ruling must be prejudicial as well as erroneous, and
prejudice must affirmatively appear, or the error will be disregarded. Prejudice may be
said to appear when the proceedings show that the court or jury was misled by the error,
and that the verdict or judgment was probably affected to the injury of the complaining
party." Saunders, 86 Kan. at 62.

When the various statutory amendments that result in the current version of the
harmless error statute, K.S.A. 2010 Supp. 60-261, are traced through this court's case
18

law, similar statements can be found in many cases. This history and the use of the
"would affect the outcome of the trial" standard when examining if substantial rights
were affected leads us to the conclusion that the Court of Appeals in this case was
applying 60-261. This conclusion is reaffirmed if we follow the judicial lineage of the
cases cited by the Court of Appeals; the line eventually ends with 60-261.

In addition to citing to K.S.A. 60-261, many of this court's cases also cite the
appellate harmless error statute, K.S.A. 60-2105, as the standard for an appellate court's
review of the trial court's application of K.S.A. 60-261. See, e.g., State v. Rider, Edens &
Lemons, 229 Kan. 394, 407, 625 P.2d 425 (1981); cf. Thompson v. General Finance Co,
Inc, 205 Kan. 76, 101, 468 P.2d 269 (1970) (noting that there had been no motion for
mistrial or showing of a basis for mistrial under K.S.A. 60-261 and K.S.A. 60-2105). The
appellate harmless error statute, K.S.A. 60-2105, also uses the "substantial rights"
standard, providing:

"The appellate court shall disregard all mere technical errors and irregularities
which do not affirmatively appear to have prejudicially affected the substantial rights of
the party complaining, where it appears upon the whole record that substantial justice has
been done by the judgment or order of the trial court; and in any case pending before it,
the court shall render such final judgment as it deems that justice requires, or direct such
judgment to be rendered by the court from which the appeal was taken, without regard to
technical errors and irregularities in the proceedings of the trial court." (Emphasis added.)

Even if we did not have numerous cases relying on K.S.A. 60-261 and K.S.A. 60-
2105 when assessing if a mistrial should be granted, the text of those provisions would
lead us to conclude the statutes should be applied because the language clearly fits the
task of evaluating a mistrial motion. For example, applying the statutory "substantial
rights" standard to determine what "justice requires" under 60-261 is congruent with a
trial court's assessment of whether there was an "injustice," as that term is used in K.S.A.
22-3423(1)(c), the criminal mistrial statute. Furthermore, applying 60-261 at the stage of
19

the trial when a motion for mistrial is made is compatible with the plain language of 60-
261 indicating the standard should be applied at "every stage of the proceeding." K.S.A.
60-2105 can then be applied by an appellate court reviewing a trial court ruling.

4. Ward's Federal Constitutional Harmless Error Standard: Can We Conclude
Beyond a Reasonable Doubt that Substantial Rights Were Not Affected?

While this discussion reconciles the standards cited by the State and the Court of
Appeals and reveals them to be one standard stated in two different ways, Ward cites to a
third line of cases. These cases apply the federal constitutional harmless error standard
that was first stated in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed.
2d 705, reh. denied 386 U.S. 987 (1967). The United States Supreme Court held that
"before a federal constitutional error can be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt." Chapman, 386 U.S. at
24. The Court explained that this means that the "beneficiary of [the] constitutional error
. . . [must] prove beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained." Chapman, 386 U.S. at 24.

We have frequently applied Chapman when reviewing a trial court's decision
regarding a motion for mistrial if the underlying error implicated a right guaranteed by
the United States Constitution or jointly by the United States Constitution and the Kansas
Constitution. See, e.g., State v. Martinez, 288 Kan. 443, 450, 204 P.3d 601 (2009);
Saucedo v. Winger, 252 Kan. 718, 732, 850 P.2d 908 (1993) (standard discussed in
context of substantial rights); cf. Foster, 290 Kan. at 718-21 (although not citing
Chapman, finding conduct was not of nature warranting use of constitutional harmless
error standard when defendant's father became emotional during trial); State v.
Thompkins, 271 Kan. 324, 333-34, 21 P.3d 997 (2001) (rejecting application of Chapman
to mistrial motion based on prosecution's use of defendant's post-Miranda statement for
20

impeachment purposes). Unfortunately, in some of the cases cited by the parties and in
many other cases, we have not discussed why Chapman does or does not apply.

For example, in one of the cases cited by Ward, State v. Hall, 220 Kan. 712, 556
P.2d 413 (1976), the court apparently applied Chapman, although that conclusion is not
clear from reading the decision. In Hall, the defendant sought a mistrial because of the
prejudicial impact of his appearing for a brief time before the jury in prison clothing,
despite his request to appear in his own clothes. The court found this to be a fundamental
failure in the proceeding and explained:

"There can be no question that a practice of requiring an accused to stand trial in
distinctive prison clothing, such as that described in the present case, may result in an
unfair trial and may deny the prisoner the presumption of innocence mandated by the
Kansas [Constitution] Bill of Rights, § 10 and K.S.A. 21-3109. This practice, if it exists
in Kansas, should be discontinued.
. . . .
". . . However, the appearance of an accused in prison garb at a trial or some
portion thereof, does not in and of itself constitute reversible error. It must be shown that
the accused was prejudiced by such appearance in that such appearance resulted in an
unfair trial. [Citations omitted.]" Hall, 220 Kan. at 714-15.

After examining the record, the Hall court concluded a mistrial was not warranted.
In reaching that conclusion, the court first rejected the view that "an appearance in prison
garb per se results in an unfair trial." Hall, 220 Kan. at 715. Additionally, the court
concluded: "We can say beyond a reasonable doubt that the brief appearance of appellant
in prison garb did not have [a] substantial effect upon the ultimate verdict. [Citation
omitted.]" Hall, 220 Kan. at 715.

This last sentence is similar to the language in Chapman; at least it uses the
Chapman benchmark of "beyond a reasonable doubt." Yet, it muddles the standard by
concluding the appearance in jail clothing did not have a "substantial effect upon the
21

ultimate verdict." (Emphasis added.) Hall, 220 Kan. at 715. Consequently, we cannot fit
the statement from the case neatly into a Chapman pigeonhole. Nevertheless, even with
this departure from the wording of Chapman, the Hall court cited to one of the first
Kansas cases to apply Chapman, State v. Fleury, 203 Kan. 888, Syl. ¶ 2, 457 P.2d 44
(1969).

Similarly, in the other case cited by Ward, State v. Alexander, 240 Kan. 273, 729
P.2d 1126 (1986), the court appears to have applied the federal constitutional harmless
error standard, without saying it was doing so. In Alexander, the issue was whether a
mistrial was warranted because evidence had been admitted that showed the defendant
was incarcerated. The court simply stated: "In applying the Kansas harmless error rule
(K.S.A. 60-2105), a reviewing court must be able to declare the error had little, if any,
likelihood of having changed the result of the trial and the court must be able to declare
such a belief beyond a reasonable doubt." Alexander, 240 Kan. at 276. By itself, this
discussion would not suggest that a federal constitutional harmless error analysis, as
defined in Chapman, was being applied. Yet, it apparently was because the Alexander
court cited to State v. Johnson, 231 Kan. 151, 159, 643 P.2d 146 (1982), and the Johnson
decision, in turn, cited to Chapman. By using the standard of whether the error had "little,
if any, likelihood of changing the result of the trial," the Alexander court continued a line
of cases, beginning with Fleury, in which this court altered the language from Chapman
while expressing its intent to apply Chapman.

Fleury, 203 Kan. 888, was decided approximately 2 years after the Chapman
decision. In Fleury, the court first noted the Chapman holding that '''before a federal
constitutional error can be held harmless, the court must be able to declare a belief that it
was harmless beyond a reasonable doubt.' [Citation omitted]." Fluery, 203 Kan. at 893
(quoting Chapman, 386 U.S. at 24). The Fleury court then compared this standard to
Kansas' harmless error rule, explaining:

22

"Our Kansas harmless-error rule has been incorporated in the statutory law of
this state. (See K.S.A. 60-261 and K.S.A. 62-1718 [Corrick] [recodified at K.S.A. 60-
2105].) Our harmless-error rule applies unless the error is of such a nature as to appear
inconsistent with substantial justice. Our courts are directed to disregard any error or
defect in the proceedings which does not affect the substantial rights of the parties.
"The federal harmless-error rule declared in Chapman requires an additional
determination by the court that such error was harmless beyond a reasonable doubt in that
it had little, if any, likelihood of having changed the result of the trial." Fleury, 203 Kan.
at 893.

Next, the court briefly reviewed the application of this additional determination by
the courts of other states and by this court in the relatively short time between Chapman
and Fleury. This discussion led the Fleury court to conclude:

"We are convinced our harmless-error rule has a sound basis in the jurisprudence
of this state, and when our rule is to be applied to a federal constitutional error our courts
should apply the same in the light of what was said in Chapman. By this we mean a court
in applying our harmless-error rule must be able to declare the federal constitutional error
had little, if any, likelihood of having changed the result of the trial, and the court must be
able to declare such a belief beyond a reasonable doubt." (Emphasis added.) Fleury, 203
Kan. at 894.

The Fleury court did not further reconcile its statement that an error is harmless if it had
"little, if any, likelihood" of having changed the result of the trial, with the "harmless
beyond a reasonable doubt" language of the federal constitutional harmless error standard
stated in Chapman. See Chapman, 386 U.S. at 24 ("[B]efore a federal constitutional error
can be held harmless, the court must be able to declare a belief that it was harmless
beyond a reasonable doubt.").

Nevertheless, because the wording is different, periodically a question has arisen
as to whether there is a difference between the standard Kansas applies and the Chapman
23

standard. On each occasion when this court has addressed this question, we have always
concluded the "little, if any, likelihood" standard is essentially the same standard as the
one adopted in Chapman. For example, in State v. Kleypas, 272 Kan. 894, 1084, 40 P.3d
139 (2001), cert. denied 537 U.S. 834 (2002), we explained that, although the language is
"somewhat different" from that used in Chapman, the "standard is essentially the same."
See also State v. Brown, 280 Kan. 65, 76, 118 P.3d 1273 (2005) (citing Kleypas for
recognition that Kansas' standard, although different from Chapman, was essentially the
same). Similarly, in State v. Cosby, 285 Kan. 230, 169 P.3d 1128 (2007), we reiterated
that our use of "'little, if any, likelihood of changing the result of the trial'" is equivalent
to Chapman's "'willingness to declare a belief that it was harmless beyond a reasonable
doubt.'" Cosby, 285 Kan. at 252. The basis for our repeated conclusion that there is no
difference between the standards is explained, in part, by examining the source of the
"little, if any, likelihood" phrase and discussing the analysis in Chapman in more detail.

The source of the "little, if any, likelihood" language is Chapman itself. However,
the phrase is not found in the part of the opinion in which the United States Supreme
Court established the federal constitutional harmless error standard. Instead, the phrase is
in an earlier section of the opinion in which the Court considered whether a federal
constitutional error can ever be harmless. Chapman, 386 U.S. at 21-22. The Court
concluded that a federal constitutional error could be harmless and rejected the argument
that all federal constitutional errors should require automatic reversal. In doing so, the
Court noted that harmless error has been a long-standing feature of both federal law and
the law of all 50 states. Harmless error rules, the Court found, "serve a very useful
purpose insofar as they block setting aside convictions for small errors or defects that
have little, if any, likelihood of having changed the result of the trial." (Emphasis added.)
Chapman, 386 U.S. at 22.

After holding that a federal constitutional error can be harmless, the Court
considered the appropriate analysis that should be applied. It looked to its recent decision
24

in Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963), holding that
the erroneous admission of unconstitutionally obtained evidence required reversal
because there was "'a reasonable possibility the evidence complained of might have
contributed to the conviction.'" Chapman, 386 U.S. at 23 (quoting Fahy, 375 U.S. at 86-
87).

The Chapman Court then addressed the question of which party should have the
burden of showing harmless error, presumably because Fahy was silent on the point:

"Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or
comments, casts on someone other than the person prejudiced by it a burden to show that
it was harmless. It is for that reason that the original common-law harmless-error rule put
the burden on the beneficiary of the error either to prove that there was no injury or to
suffer a reversal of his erroneously obtained judgment." Chapman, 386 U.S. at 24.

Integrating the burden of showing harmlessness with Fahy's "reasonable
possibility that the evidence might have contributed to the conviction" standard, the
Chapman Court created the federal constitutional harmless error standard:

"There is little, if any, difference between our statement in Fahy v. Connecticut
about 'whether there is a reasonable possibility that the evidence complained of might
have contributed to the conviction' and requiring the beneficiary of a constitutional error
to prove beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case
when we hold, as we now do, that before a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was harmless beyond a
reasonable doubt." Chapman, 386 U.S. at 24.

While the United States Supreme Court concluded the standard in Fahy and
Chapman had the same meaning, this court, in Cosby, noted the "'little, if any,
likelihood'" wording used by this court when applying the federal constitutional harmless
25

error standard was different from that used in either of those cases. Even so, we
concluded "unequivocally that neither [the Chapman nor Fleury] formulations differs
substantively or functionally from Fahy's standard." Cosby, 285 Kan. at 252.

Our conclusion that there is no difference between phrasing the standard as "little,
if any, likelihood" and "beyond a reasonable doubt" is validated by the United States
Supreme Court's decision in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L.
Ed. 2d 35 (1999). In Neder, the Court held that the federal constitutional harmless error
standard asks: "Is it clear beyond a reasonable doubt that a rational jury would have
[convicted the defendant] absent the error?" Neder, 527 U.S. at 18. This standard, the
Court said, prevents setting aside convictions for small errors that have "'little, if any,
likelihood of having changed the result of the trial.'" Neder, 527 U.S. at 19. In other
words, the phrase "little, if any, likelihood" states a level of certainty that is equivalent to
"beyond a reasonable doubt." See Chapman, 386 U.S. at 24 (the "'reasonable possibility'"
the error contributed to the verdict standard is the same as the "beyond a reasonable
doubt" the "error did not contribute to the verdict" standard).

This high level of certainty—beyond a reasonable doubt, reasonable possibility, or
little, if any, likelihood—was intended to set a standard that protects rights guaranteed by
the United States Constitution. Yet, in time, this court began to occasionally use the
language regarding "little, if any, likelihood" of affecting a verdict when analyzing
nonconstitutional errors as well. E.g., State v. Ricks, 257 Kan. 435, 440, 894 P.2d 191
(1995) (concluding limiting instruction regarding purposes for which jury could consider
prior conflicts between defendant and homicide victim "had little, if any, likelihood of
changing the results of the trial, and any error therein is harmless."). When stating the
analysis applicable to nonconstitutional errors in this way, this court has usually failed to
discuss the difference in the level of certainty—i.e., the standard of proof—or the burden
of production to be applied in the consideration of nonconstitutional errors as compared
to federal constitutional errors. (For a note on terminology, see Microsoft v. i4i Limited
26

Partnership, __ U.S. __, No. 10-290, 2011 WL 2224428, at *6 n.4 (2011) (discussing
"burden of proof" and distinguishing "burden of persuasion" ["specifying which party
loses if the evidence is balanced"], "burden of production" [specifying which party must
come forward with evidence at various stages in the litigation], and "standard of proof"
[specifying "'degree of certainty by which the factfinder'" or a reviewing court must be
persuaded by the party bearing the burden of production].)

5. Level of Certainty

It is only the "little, if any, likelihood" language—in other words, the level of
certainty that is imposed—in Ricks and numerous other nonconstitutional error cases that
is difficult to reconcile with K.S.A. 60-261. The federal constitutional harmless error
standard of Chapman and the Kansas harmless error statutes, K.S.A. 60-261 and K.S.A.
60-2105, are based on the same measuring point: whether the error affected substantial
rights. As we have noted, in Kansas we have used the same substantial rights standard,
measured by whether an error changed the result of the trial, regardless of whether we are
applying K.S.A. 60-261 and K.S.A. 60-2105 or Chapman. This is consistent with the
United States Supreme Court's interpretation of the harmless error standard. As the Court
made clear in United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S. Ct. 2333, 159
L. Ed. 2d 157 (2004), relief from error—whether under Chapman, Kotteakos v. United
States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)/Federal Rule of
Criminal Procedure 52(a) (harmless error), or Federal Rule of Criminal Procedure 52(b)
(plain error)—"is tied in some way to prejudicial effect, . . . [which] mean[s] error with a
prejudicial effect on the outcome of a judicial proceeding." See also United States v.
Marcus, ___ U.S. ___, 130 S. Ct. 2159, 2168-69, 176 L. Ed. 2d 1012 (2010) (Stevens, J.,
dissenting) (Fed. R. Crim. Proc. 52[a] and [b] provide "a unitary standard" for relief from
error "which turns on whether the error in question affected substantial rights[.]"); Neder,
527 U.S. at 7 (Fed. R. Crim. Proc. 52[a] "applies to all errors"; in applying Fed. R. Crim.
27

Proc. 52[a]'s harmless error analysis to constitutional errors, reviewing court must
"'disregar[d]' errors that are harmless 'beyond a reasonable doubt'").

Under the United States Supreme Court's analysis, although relief for any type of
error—i.e., constitutional, harmless, or plain—is based on the same benchmark, effect on
the outcome, the analysis for each type of error is formulated differently to set a higher or
lower threshold or level of certainty as to whether the error affected the outcome. In other
words, the standard of proof varies by the degree of certainty by which a court must be
persuaded that the error did not affect the outcome. See Dominguez Benitez, 542 U.S. at
86 (Scalia, J., dissenting) (the Court has created too many gradations in the "standards of
probability relating to the assessment of whether the outcome of the trial would have
been different" if the error had not occurred); Brecht v. Abrahamson, 507 U.S. 619, 653-
56, 113 S. Ct. 1710, 123 L. Ed. 2d 353, reh. denied 508 U.S. 968 (1993) (O'Connor, J.,
dissenting) (harmless error requires the reviewing court to determine whether it has
"sufficient confidence that the verdict would have remained unchanged even if the error
had not occurred"; only difference between Chapman and the Kotteakos/Fed. R. Crim.
Proc. 52 standard "is the degree of confidence" the reviewing court must have that the
error did not affect the outcome); see also (Traynor, The Riddle of Harmless Error, pp.
34, 43 (1970) (appellate courts must assess the risk that an error affected the outcome on
a "sliding scale of probabilities"); Walker, Harmless Error Review in the Second Circuit,
63 Brook L. Rev. 395, 399 (1997) (harmless error standards establish the "degree of
certainty required . . . before a court can declare [an error] harmless").

The Chapman "harmless beyond a reasonable doubt" threshold requires the
highest level of certainty that the error did not affect the outcome. See Brecht, 507 U.S. at
637 (quoting Chapman, 386 U.S. at 24, which quoted Fahy, 375 U.S. at 86, and
concluding that under the Kotteakos standard, relief from error is granted only when the
error had an actual effect on the outcome; under Chapman, relief from error is required
"merely because there is a '"reasonable possibility"' that trial error contributed to the
28

verdict"); United States v. Lane, 474 U.S. 438, 446 n.9, 106 S. Ct. 725, 88 L. Ed. 2d 814
(1986) (Chapman's constitutional harmless error standard "is considerably more onerous
than the standard for nonconstitutional errors" adopted in Kotteakos, 328 U.S. 750).

Under federal law, all other nonstructural errors (nonconstitutional errors, errors
on collateral review, and plain errors) are subject to a less stringent threshold; such errors
must be held harmless where there is no "reasonable probability" the error affected the
outcome. See Marcus, 130 S. Ct. at 2164 ("reasonable probability" that the error affected
outcome, not "any possibility," is the appropriate standard for determining whether a
plain error affected substantial rights under Fed. R. Crim. Proc. 52[b]); Dominguez
Benitez, 542 U.S. at 81-82 (a plain error "'affects substantial rights'" as used in Fed. R.
Crim. Proc. 52[b] where there is a "'reasonable probability'" that, but for the error, the
outcome would have been different).

Which threshold or level of certainty—reasonable probability or reasonable
possibility—should be applied to K.S.A. 60-261 and K.S.A. 60-2105 when
nonconstitutional error is involved has not been as clear, however. Recently, the point
was addressed in State v. Shadden, 290 Kan. 803, 830, 235 P.3d 436 (2010), in which we
relied on Marcus, 130 S. Ct. 2159, to reject the threshold of a "'possibility'" that an error
had affected the outcome of a trial.

In Marcus, the United States Supreme Court discussed the harmless error
provision of Fed. R. Crim. Proc. 52(b), which permits a federal appellate court to
recognize "plain error that affects substantial rights." The Court detailed four
circumstances in which the rule could be applied, one of which is when an error
"'affected the appellant's substantial rights, which in the ordinary case means' it 'affected
the outcome of the district court proceedings.'" Marcus, 130 S. Ct. at 2164. The Court
discussed the level of certainty required in this circumstance, stating: "In the ordinary
case, to meet this standard an error must be 'prejudicial,' which means that there must be
29

a reasonable probability that the error affected the outcome of the trial. [Citations
omitted.]" (Emphasis added.) Marcus, 130 S. Ct. at 2164.

Citing Marcus, in Shadden, 290 Kan. at 830, we concluded the Kansas Court of
Appeals had erred in reversing a conviction based on the mere possibility that a
nonconstitutional error had affected the outcome of a trial. Based on Marcus, we applied
a reasonable probability level of certainty to determine whether the error affected the
outcome of the proceeding.

Synthesizing these various holdings, we conclude that before a Kansas court can
declare an error harmless it must determine the error did not affect a party's substantial
rights, meaning it will not or did not affect the trial's outcome. The degree of certainty by
which the court must be persuaded that the error did not affect the outcome of the trial
will vary depending on whether the error implicates a right guaranteed by the United
States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable
doubt that there was no impact on the trial's outcome, i.e., there is no reasonable
possibility that the error contributed to the verdict. If a right guaranteed by the United
States Constitution is not implicated, a Kansas court must be persuaded that there is no
reasonable probability that the error will or did affect the outcome of the trial. (Because
Ward claims a violation of rights guaranteed by the United States Constitution, the
question of whether an error that implicates a right guaranteed by the Kansas Constitution
but not the United States Constitution can be declared harmless and, if it can, what level
of certainty would apply is not presented in this case and, therefore, is not determined.
Likewise, we do not address the analysis to be applied in the context of a collateral
review of error. See Brecht, 507 U.S. at 630-31).

That said, with the clarification that a reasonable probability threshold applies
under K.S.A. 2010 Supp. 60-261 and K.S.A. 60-2105, it is confusing to talk about an
error "having little, if any, likelihood" of affecting a trial's outcome. This language
30

suggests a reasonable doubt threshold, which is the context in which the language
originated. In contrast, the wording used by the United States Supreme Court when
discussing harmless error in a nonconstitutional error setting does not include the phrase
"little, if any, likelihood" and, therefore, avoids the potential for confusion. The Court
considers all errors―constitutional, harmless, and plain―by the benchmark of affecting
substantial justice, meaning affecting the outcome of the proceeding. Then, it applies the
appropriate level of certainty. Our review of the history that has resulted from the varying
wording this court has used persuades us that the analysis under K.S.A. 2010 Supp. 60-
261 and K.S.A. 60-2105 should be phrased with similar consistency and without the
"little, if any, likelihood" phrase.

In addition, we clarify that our frequent reference, primarily in prosecutorial
misconduct cases, to satisfying both harmlessness standards—K.S.A. 2010 Supp. 60-261
and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)—
should not be read to imply there are two different tests. E.g., State v. Kemble, 291 Kan.
109, 121-22, 238 P.3d 251 (2010) (using language of both standards); State v. Tosh, 278
Kan. 83, Syl. ¶ 2, 91 P.3d 1204 (2004) (discussing basis for statement). Rather, as
discussed, there is one benchmark of whether substantial justice is affected with different
levels of certainty required.

6. Burden of Production

One further point of confusion remains: Who carries the burden of production to
establish that there is no reasonable possibility or reasonable probability that the error
affected or will affect the outcome? In the context of a motion for mistrial, we have
frequently imposed the burden of production on the defendant. See, e.g., State v. Foster,
290 Kan. 696, 717, 721, 233 P.3d 265 (2010) (statutory harmless error). In other cases,
we have often stated the standard in a burden-neutral fashion, merely concluding an
appellate court must be convinced the error did not affect the outcome of the trial. E.g.,
31

State v. Wells, 289 Kan. 1219, 1233, 1238-39, 221 P.3d 561 (2009) (statutory harmless
error and Chapman).

A recent case considered by the United States Supreme Court raises a question of
whether the burden can be imposed on a defendant if the federal constitutional harmless
error standard is being applied. In Gamache v. California, __ U.S. __, 131 S. Ct. 591, 178
L. Ed. 2d 514 (2010), the Court denied a petition for writ of certiorari in which a criminal
defendant sought review of the California Supreme Court's finding that a federal
constitutional error was harmless. Although the Court unanimously voted to deny the
petition, four justices joined in a statement pointing out that the California court had
incorrectly required a defendant to establish prejudice from the alleged error, stating:

"Under our decision in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17
L. Ed. 2d 705 (1967), the prosecution must carry the burden of showing that a
constitutional trial error is harmless beyond a reasonable doubt. See also Deck v.
Missouri, 544 U.S. 622, 635, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005) ('[W]here a
court, without adequate justification, orders the defendant to wear shackles that will be
seen by the jury . . . [t]he State must prove "beyond a reasonable doubt that the
[shackling] error complained of did not contribute to the verdict obtained"' (quoting
Chapman, 386 U.S., at 24, 87 S.Ct. 824)); United States v. Dominguez Benitez, 542 U.S.
74, 81, n.7, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) ('When the Government has the
burden of addressing prejudice, as in excusing preserved error as harmless on direct
review of the criminal conviction, it is not enough to negate an effect on the outcome of
the case' (citing Chapman, 386 U.S., at 24, 87 S.Ct. 824); Arizona v. Fulminante, 499
U.S. 279, 295-296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ('The Court has the power to
review the record de novo in order to determine an error's harmlessness. In so doing, it
must be determined whether the State has met its burden of demonstrating that the "error"
did not contribute to [defendant's] conviction' (citations omitted)).
"The California Supreme Court, however, stated, '[I]n the absence of misconduct,
the burden remains with the defendant to demonstrate prejudice under the usual standard
for ordinary trial error.' 48 Cal. 4th, at 397, 106 Cal.Rptr.3d 771, 227 P.3d, at 387
(emphasis added). It is not clear what the court intended in allocating the burden to the
32

defendant to demonstrate prejudice, but if it meant to convey that the defendant bore the
burden of persuasion, that would contravene Chapman. [Citations omitted.]" Gamache,
131 S. Ct. at 592.

The four justices concluded the allocation of the burden did not impact the
conclusion that the error was harmless in Gamache. Nevertheless, the four justices noted
"the allocation of the burden of proving harmlessness can be outcome determinative in
some cases" and "in future cases the California courts should take care to ensure that their
burden allocation conforms to the commands of Chapman." Gamache, 131 S. Ct. at 593.

We heed this warning even though Gamache is not controlling as it is merely a
statement by four justices related to a denial of certiorari. We do so because we find the
justices' statements persuasive for several reasons. First, "because the standard of review
(like the applicability of harmless error) is part and parcel of the federal right itself, a
state court may be prohibited from adopting standards of review that are more deferential
than the standards adopted by federal courts." 7 LaFave, Israel, King & Kerr, Criminal
Procedure § 27.5(e) (3d ed. 2007). Second, we agree with the four justices that the
allocation of the burden can be outcome determinative and, in such a case, Chapman
would require the party favored by the error—usually the State—to carry the burden of
production. Third, a state court decision that is contrary to or applies the federal
constitutional harmless error standard "in an 'objectively unreasonable' manner," is
subject to federal habeas review. Mitchell v. Esparza, 540 U.S. 12, 17-18, 124 S. Ct. 7,
157 L. Ed. 2d 263 (2003). Finally, on occasion we have appropriately imposed the burden
on the State as the party benefitting from the alleged error. E.g., State v. Kleypas, 272
Kan. 894, 1084, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002).

Consequently, the better practice is to express the federal constitutional harmless
error standard as we did in Kleypas: "A constitutional error may be declared harmless
where the [party benefitting from the error] proves beyond a reasonable doubt that the
33

error complained of did not [affect substantial rights, meaning it did not] contribute to the
verdict obtained." Kleypas, 272 Kan. at 1084 (citing Chapman, 386 U.S. at 24).

Because we ultimately apply the federal constitutional harmless error standard in
this case, we need not determine which party carries the burden of production regarding
the effect of a nonconstitutional error under K.S.A. 60-261 or K.S.A. 60-2105.

7. Standard of Review Summary

With these different points in mind, we restate the two-step test that frames the
analysis for a motion for mistrial: First, was there a fundamental failure in the
proceeding? Second, if so, did this fundamental failure result in an injustice? To
determine whether an error makes it impossible to proceed with the trial without
injustice, a trial court must assess whether the fundamental failure affected a party's
substantial rights, which means it will or did affect the outcome of the trial in light of the
entire record. The degree of certainty by which the court must be persuaded that the error
did not affect the outcome will vary depending on whether the fundamental failure
infringes upon a right guaranteed by the United States Constitution. If it does not, the trial
court should apply K.S.A. 60-261 and determine if there is a reasonable probability that
the error will or did affect the outcome of the trial in light of the entire record. If the
fundamental failure does infringe upon a right guaranteed by the United States
Constitution, the trial court should apply the constitutional harmless error analysis
defined in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh.
denied 386 U.S. 987 (1967), in which case the error may be declared harmless where the
party benefitting from the error proves beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of the trial in light of the entire
record, i.e., proves there is no reasonable possibility that the error affected the verdict.
Regardless of whether the error is constitutional, one factor to be considered is whether
any damage caused by the error can be or was removed or mitigated by admonition,
34

instruction, or other curative action. An appellate court reviewing the second step for an
injustice will review the entire record and use the same analysis, applying K.S.A. 60-261
and K.S.A. 60-2105 or else Chapman, depending on the nature of the right allegedly
affected.

B. Right to a Fair Trial

Applying this two-step test, we must first determine whether the trial court erred in
determining it was not a fundamental failure in the trial to allow West and Jackson to be
identified as Ward's associates while they were dressed in jail clothing. Again, the trial
court will have abused its discretion if we determine this conclusion (1) is arbitrary,
fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted
by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an
erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial
competent evidence does not support a factual finding on which a prerequisite conclusion
of law or the exercise of discretion is based. See State v. Gonzalez, 290 Kan. 747, 755-56,
234 P.3d 1 (2010).

The State argues that the issue relates to the trial court's control of the courtroom
and trial, an area where traditionally the trial court is given broad discretion. See, e.g.,
State v. Kemble, 291 Kan. 109, 114, 238 P.3d 251 (2010). On the other hand, Ward
suggests that there was a fundamental failure in her trial and the trial court's
determination was based on an error of law that failed to recognize an infringement on
her right to be presumed innocent and her right to a fair trial, both of which are
fundamental constitutional rights guaranteed by the Sixth and Fourteenth Amendments to
the United States Constitution. See Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691,
48 L. Ed. 2d 126, reh. denied 426 U.S. 954 (1976) ("The presumption of innocence,
although not articulated in the Constitution, is a basic component of a fair trial under our
system of criminal justice."). The presumption of innocence is founded on the principle
35

that "one accused of a crime is entitled to have guilt or innocence determined solely on
the basis of the evidence introduced at trial, and not on grounds of official suspicion,
indictment, continued custody, or other circumstances not adduced as proof at trial."
Taylor v. Kentucky, 436 U.S. 478, 485, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978). As
previously noted, in addition to citing Estelle as support, Ward cites to State v. Alexander,
240 Kan. 273, 729 P.2d 1126 (1986), and State v. Hall, 220 Kan. 712, 556 P.2d 413
(1976).

Estelle, Alexander, and Hall are distinguishable from this case, however, because
in those cases the prejudice arose from circumstances showing that the defendant was in
jail. The decisions did not discuss the impact of evidence showing that someone other
than the defendant was in jail. Before us, neither party has cited any authority on the issue
of whether witnesses for the prosecution may identify individuals attired in jail clothing
and seated in the courtroom as associates of the defendant. Our research has provided
minimal guidance.

1. Witness in Jail Clothing

What this research has revealed is that the law is less settled regarding whether
witnesses should be permitted to testify in jail clothing, but a majority of jurisdictions
have concluded that requiring a witness who is called by the State to testify in jail
clothing may affect the defendant's right to a fair trial. See Annot., 16 A.L.R. 4th 1356.
The results are not the same if the witness is called by the defense. We addressed this
situation in State v. Bradford, 254 Kan. 133, 864 P.2d 680 (1993).

In Bradford, the defendant moved for a mistrial after a defense witness testified
while in chains and jail clothing. The defendant argued the use of chains could have
caused jurors to base their evaluation of the witness' credibility on unacceptable factors.
The trial court denied the motion. On appeal, the Bradford court observed that the
36

defendant called this witness to testify concerning events that allegedly occurred while he
and the witness were incarcerated. The defendant did not request that either the jail
clothing or chains be removed. The Bradford court stated that the witness' "courtroom
appearance was controlled by Bradford, not by the State." Bradford, 254 Kan. at 143.
Finding no abuse of discretion on the part of the trial court, we further noted that the
court offered to have the chains removed when the witness' appearance was first brought
to its attention. Bradford, 254 Kan. at 143.

The facts of Bradford are so distinguishable the decision is not particularly
helpful. Here, we do not have a witness being called by the defense; rather the State
controlled West's and Jackson's appearance in the courtroom. Further, the individuals
wearing jail clothing in our case were not witnesses and had not been listed as potential
witnesses, so there was no advance notice to Ward. Despite these distinctions, it is
noteworthy that Bradford's rationale implies that a witness ordinarily should not testify in
a jury trial while wearing jail clothing.

To emphasize the appropriateness of that conclusion and to suggest that the
conclusion's doctrinal basis is the presumption of innocence, Ward points us to the
rationale used by appellate courts in other jurisdictions that have disapproved of the
practice of having witnesses testify in jail clothing. These cases—Gibson v. State, 233
S.W.3d 447 (Tex. App. 2007), and State v. Kuchera, 198 N.J. 482, 969 A.2d 1052
(2009)―do not fully support her argument, however.

In the first of these cases, Gibson, the Texas Court of Appeals found it was within
the trial court's discretion to require witnesses to appear in jail clothing if the
circumstances warranted it. There, the defendant knew the witness was in jail and would
likely be called to testify, but the defendant did not make a timely request that the witness
be permitted to testify in street clothing. The trial court instructed the jury to disregard the
witness' jail clothing and handcuffs. Although the Texas Court of Appeals believed "it is
37

better to require that no witness testify in jail clothing," it held that the trial court did not
abuse its discretion in denying the motion for mistrial. Gibson, 233 S.W.3d at 453.

In the second case cited by Ward, Kuchera, the New Jersey Supreme Court
concluded that as a general rule, witnesses for either the State or defense should not
testify in jail clothing. The general rule, however, was tempered by the court's
recognition that such attire may be "affirmatively permitted by the trial court in the
exercise of its discretion." Kuchera, 198 N.J. at 486. Still, the court narrowed that
discretion by indicating that requiring a witness to testify in jail clothing "'further[s] no
vital State interest,'" Kuchera, 198 N.J. at 499 (quoting State v. Artwell, 177 N.J. 526, 539
832 A.2d 295 [2003]), and it similarly prejudices the defendant in terms of his witness'
credibility and the suggestion of "'guilt by association.'" Kuchera, 198 N.J. at 499
(quoting Artwell, 177 N.J. at 539).

Ward points out that unlike the situations in Gibson and Kuchera, Ward, through
her counsel, did voice an objection to the presence of the jail-clothed individuals. She
also acknowledges, however, that these cases do not directly address the issue before this
court where it is the appearance of a nonwitness that raises a question of prejudice.

Furthermore, several other cases regarding witnesses do not support Ward's
arguments. While these courts have recognized the risk of unfair prejudice to a defendant
when witnesses are forced to testify in jail clothing or restraints, many have concluded
that the practice does not adversely affect the defendant's presumption of innocence or
imply that the defendant is disposed to commit crimes. Rather, the potential prejudice has
been seen as arising because of the impact on the witness' credibility. See, e.g., Harrell v.
Israel, 672 F.2d 632, 635 (7th Cir. 1982) ("Although the shackling of defense witnesses
may be less prejudicial to the accused because it does not directly affect the presumption
of innocence, . . . nevertheless it may harm his defense by detracting from his witness'
credibility."); People v. Froehlig, 1 Cal. App. 4th 260, 264, 1 Cal. Rptr. 2d 858 (1991)
38

("The appearance of a defense witness attired in prison clothes does not, of course,
adversely affect the presumption of innocence or carry with it the inference that the
defendant is a person disposed to commit crimes. . . . The credibility of a defense witness
observed by the jury in prison attire may be suspect, but the prejudicial impact upon the
defense is considered 'less consequential.'"); Commonwealth v. Brown, 364 Mass. 471,
475, 305 N.E.2d 830 (1974) ("The shackling of a witness . . . may influence a jury's
judgment of credibility and further hurt the defendant in so far as the witness is conceived
to be associated with him."); Hightower v. State, 123 Nev. 55, 58, 154 P.3d 639 (2007)
("[R]equiring an incarcerated defense witness to appear in prison clothing may prejudice
the accused by undermining the witness's credibility in an impermissible manner."); State
v. Hartzog, 96 Wash. 2d 383, 399, 635 P.2d 694 (1981) ("While a shackled witness may
not directly affect the [defendant's] presumption of innocence, it seems plain that there
may be some inherent prejudice to defendant, as the jury may doubt the witness'
credibility.").

In this case, we are not concerned about the credibility of West or Jackson, who
did not testify, and these cases do not support a conclusion that their presence in the
courtroom while in jail clothing infringed on Ward's right to be presumed innocent.

2. Bystanders in Jail Clothing

Similarly, in the few cases we found where a prisoner was brought into the
courtroom but not called as a witness, the courts questioned the practice but found the
potential prejudice to be less than that caused by a defendant in jail clothing appearing
before a jury.

For example, in Hedrick v. State, 6 So. 3d 688 (Fla. Dist. App. 2009), the
defendant claimed that defense counsel should have objected to the codefendants
appearing at trial in shackles and prison clothing. The codefendants were brought into the
39

courtroom during the testimony of one of the victims, who identified the defendant as the
tallest of the attackers. The State demonstrated the accuracy of this opinion by displaying
the codefendants. The defendant's motion alleged that the jury may have perceived him
as guilty by association because the codefendants' appearance in prison clothing and
shackles indicated that they were in custody. Yet, the Hedrick court stated that the
defendant failed to show prejudice. The court observed that the defense was that the co-
defendants were the ones who had beaten the victim, and the defendant was merely a
bystander. The court determined that "[t]he co-defendants' appearance in prison garb had
no bearing on the defense." Hedrick, 6 So. 3d at 694.

In addition, the Hedrick court cited to a Mississippi decision, Morgan v. State, 818
So. 2d 1163 (Miss. 2002), in which the court considered the possible error of a State's
witness appearing before the jury in shackles or jail clothing. The Mississippi court noted
a line of cases holding that it was prejudicial to bring a defendant or a defense witness
into the courtroom in shackles or jail clothing but distinguished the cases because the
witness was a prosecution witness. Consequently, the court reasoned the defense was not
prejudiced by any damage to the witness' credibility. Morgan, 818 So. 2d at 1174.

Another case, Craig v. State, 761 S.W.2d 89 (Tex. App. 1988), is also similar to
this case, although the association between the prisoner and the defendant was weaker. In
Craig, during the State's case-in-chief, a female witness was called to the stand to
establish certain events in a bar, which allegedly occurred before the abduction and
killing of the victim. The witness testified that she observed the victim with the defendant
and a "taller man with long, dark or black hair." Craig, 761 S.W.2d at 93. After the
witness was cross-examined by defense counsel, the State brought a male person into the
courtroom in jail clothing and leg irons and asked the witness if she recognized him. She
responded that she did not. Defense counsel made a motion for mistrial, arguing that the
individual's presentation in jail clothing and leg irons was prejudicial.

40

The Texas Court of Appeals affirmed the trial court's denial of the motion and
distinguished the case from those where the defendant or a witness is forced to testify in
restraints or jail clothing. Craig, 761 S.W.2d 94-95. The Craig court stated:

"Under our record, this male person was not identified and was not presented to the jury
as a witness. Some male person simply appeared in the courtroom. This person was not
placed in the witness box. . . .
". . . Under this entire record, we find that the appearance of this male person in
the courtroom, in restraint and in jail attire, made no contribution to the conviction or to
the punishment of the [defendant] and we so find beyond a reasonable doubt." Craig, 761
S.W. 2d at 94.

Finally, a nonwitness was brought into the courtroom in Reese v. State, 241 Ga.
App. 350, 526 S.E.2d 867 (1999). The defendant argued that bringing a codefendant into
the courtroom in jail clothing for the purpose of identification was prejudicial because it
associated the defendant with someone convicted of a crime. In rejecting this argument,
the court noted that the jury was not told that the codefendant had been convicted. Reese,
241 Ga. App. at 353; see also Cook v. Beto, 425 F.2d 1066, 1066-67 (5th Cir. 1970), cert.
denied 400 U.S. 944 (1970) (summary rejection of habeas corpus claim based on
defendant's codefendant being brought into the courtroom for identification while dressed
in jail clothing; court found that this resulted in no prejudice to the defendant).

3. Synthesizing and Applying These Cases

All of these cases, whether relating to a defendant, witness, or nonwitness being
brought into the courtroom in jail clothing, are expressly or impliedly critical of the
practice. We agree with this criticism and conclude, in the first step of our analysis, that
given the consensus in the case law that jail clothing taints a trial, a trial court almost
always abuses its discretion to control the courtroom when it allows a defendant, witness,
or nonwitness to be brought before a jury in jail clothing without an articulated
41

justification explaining why it is necessary for the person to wear jail clothing and does
not consider giving an admonition or instruction to the jury that it should not consider the
clothing or the person's incarceration. (In some cases, an admonition may not be
advisable, but the pros and cons should be weighed.) As we have noted, discretion is
abused when a trial court does not take into account the legal principles that control its
decision. In this situation, the case law, including decisions of the United States Supreme
Court, indicate the trial court should avoid the taint of jail clothing on a trial. Ignoring
this case law is an abuse of discretion. See Gonzalez, 290 Kan. at 755-56.

While the Court of Appeals acknowledged the general proposition that West and
Jackson should not have been in jail clothing, it found a proper exercise of discretion
because of the purposes given by the State for wanting them identified. Yet, this
justification merely explains the reason for their presence; it does not suggest any
justification for the two to be in jail clothing or explain why arrangements could not have
been made for them to appear in street clothes.

C. Prejudice: Were Substantial Rights Affected?

Nevertheless, as our discussion has revealed, the jail clothing taint on this trial
does not mean that a mistrial must be declared. Typically, after finding a fundamental
failure in the proceeding, a trial court would assess the prejudicial effect. Here, however,
the trial court did not find error or misconduct and, therefore, did not determine whether
curative instructions or admonitions were warranted and did not gauge the prejudice
caused by the error.

In cases such as this, where an appellate court finds that the trial court erred in its
first step of analysis regarding whether there is a fundamental failure in a proceeding and
consequently did not make a prejudice assessment, the appellate court may undertake the
second step without benefit of the trial court's assessment. The role of the appellate court
42

in this circumstance is to review the entire record and determine de novo if a trial court's
error was harmless. K.S.A. 60-2105. This is a role an appellate court frequently
undertakes, and K.S.A. 60-261 and K.S.A. 60-2105 or else Chapman, 386 U.S. 18,
provide the tools for this assessment.

In applying those tools, the Court of Appeals imposed the burden of production on
Ward, i.e., required Ward to come forward with evidence, and, without stating the level
of certainty required, applied the substantial rights threshold, citing State v. Albright, 283
Kan. 418, 425-26, 153 P.3d 497 (2007); see K.S.A. 60-261. If a right guaranteed by the
United States Constitution is implicated, as Ward suggests, both the trial court and the
Court of Appeals should have applied the federal constitutional harmless error standard
(beyond a reasonable doubt/reasonable possibility threshold) and imposed the burden of
production on the State.

In assessing whether the Court of Appeals erred in this regard, we note that courts
from other jurisdictions have generally not found the presumption of innocence to be
implicated when the individual wearing the jail clothing was someone other than the
defendant. A trend is not as clear with regard to whether the due process right to a fair
trial has been infringed, however. Nevertheless, we conclude that the right to a fair trial
and the right to a presumption of innocence as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution are implicated when individuals in jail
clothing are identified to the jury as associates of a defendant. This means Chapman
should have been applied by the Court of Appeals when assessing prejudice and will be
applied by this court in determining if the error was harmless. Again, under this standard,
the error may be declared harmless where the State, as the party benefitting from the
error, proves beyond a reasonable doubt that the error complained of did not affect
substantial rights, meaning there is not a reasonable possibility that the error contributed
to the verdict obtained.
43

We recognize that imposing that burden on the State at this point changes the rule
because, as noted, past Kansas cases have placed the burden of establishing prejudice on
the defendant in mistrial cases. This shift in burden is of no consequence in this case,
however, because the State presented arguments as to why there was no prejudice. These
arguments are consistent with those made in the cases we have discussed in which courts
found it harmless to have a nonwitness in the courtroom in jail clothing.

It is significant that in some of those cases, the appellate court applied the higher
level of certainty and still found the presence of a nonwitness in jail clothing to be
harmless. We do not read these cases as basing this decision solely on the fact that the
conduct in question occurred outside the witness stand. To this extent the cases are
consistent with Kansas precedent, which has rejected such a distinction. See, e.g., State v.
Leaper, 291 Kan. 89, 96-97, 238 P.3d 266 (2010) (mistrial requested after juror reported
seeing witness take offered exhibit and place in pocket while leaving courtroom; fact that
witness' negative behavior occurred in courtroom rather than on witness stand was not
dispositive on question of whether mistrial should have been granted); State v. Foster,
290 Kan. 696, 718, 233 P.3d 265 (2010) (mistrial requested after defendant's weeping
father left courtroom during rape victim's testimony). Rather, it appears to be that other
factors—such as the strength of the evidence against the defendant and an attenuated or
unexplained connection between the individual's incarceration and the charged crimes—
weigh against a finding of prejudice.

Considering those factors, although West was identified as a coconspirator of
Ward, there was never any statement that he had been found guilty of that charge.
Further, Ward's own arguments attempted to point a finger at West or others to suggest
that while Ward was present at the scene of the crimes she was not directly involved in
the cocaine sales. In addition, Ward raised the possibility of misidentification. For
example, defense counsel implied there was a mistake when Ward was identified in a
photo lineup and suggested reasonable doubt arose because Ward and her daughter,
44

Jackson, looked very similar in the photo lineup. One could even conclude that the
presence of West and Jackson during transactions benefitted the defense's theory, which
focused on the officers' admissions that they never saw Ward physically hand over the
drugs to Stinnett, in an attempt to suggest someone else made the sales. Also, the defense
at least attempted to imply that the similar appearance of Ward and Jackson could lead to
misidentification.

Finally, the State presented substantial direct and circumstantial evidence
connecting Ward to four separate drug transactions. We are convinced beyond a
reasonable doubt that the State has met its burden of proof in showing that the witnesses'
identification of West and Jackson dressed in jail clothing did not affect the outcome of
the trial.

II. SUFFICIENCY OF EVIDENCE

The other issue argued by Ward is that the evidence was insufficient to support a
verdict. Before us, Ward modifies her sufficiency of the evidence argument and presents
two questions. The first question was not raised before the Court of Appeals or in Ward's
petition for review, and we decline to consider the question. The second question was
discussed by the Court of Appeals, and we affirm.

A. Failure to Preserve K.S.A. 65-4161(d) Issue

The specific question raised for the first time in Ward's brief to this court is
whether the State failed to establish that Garfield School, which had been identified as a
school located close to a laundromat where some of the drug transactions occurred, was a
school as defined in K.S.A. 65-4161(d). This statute prohibits certain drug transactions
within 1,000 feet of a structure "used by a unified school district or an accredited
nonpublic school for student instruction or attendance or extracurricular activities of
45

pupils enrolled in kindergarten or any of the grades one through 12." At trial, there was
evidence that Garfield School was a public school attended by kindergartners through
third graders, but Ward argues there was no evidence that the school was used by a
unified school district or an accredited nonpublic school. See State v. Star, 27 Kan. App.
2d 930, 936, 10 P.3d 37, rev. denied 270 Kan. 903 (2000) (to sustain conviction for sale
of cocaine within 1,000 feet of a school, State must present evidence that structure
referred to as a school complies with the definition in 65-4161[d]); see also State v. West,
Nos. 99,063, 99,067, 2008 WL 4849472 (Kan. App. 2008) (unpublished opinion), rev.
denied 289 Kan. 1285 (2009) (reversing three convictions for insufficient evidence of
sale of cocaine within 1,000 feet of a school because State failed to prove that the
building within 1,000 feet of the three sale transactions was part of unified school district
or accredited nonpublic school).

As we have noted, this issue was not raised before the Court of Appeals or in
Ward's petition for review. Rather, before the Court of Appeals and in her petition for
review, Ward did not point to a failure to prove any specific element of a crime and did
not distinguish one count from another. In a case that is before the Kansas Supreme Court
on a granted petition for review, an issue cannot be raised for the first time before the
Supreme Court. Any issue that was not presented to the Kansas Court of Appeals is
deemed abandoned. See Osterhaus v. Schunk, 291 Kan. 759, 794, 249 P.3d 888 (2011);
see also Supreme Court Rule 8.03(a)(5)(c) (2010 Kan. Ct. R. Annot. 69) ("Issues not
presented in the petition, or fairly included therein, will not be considered by the court.").

Consequently, we will not address the merits of Ward's claim that the State failed
to establish that Garfield School complies with the definition in K.S.A. 65-4161(d).

46

B. Sufficiency of the Evidence in General

In her second issue, Ward reasserts the arguments she made before the Court of
Appeals, i.e., that there was no direct evidence that Ward was involved in the 17 crimes
for which she was convicted and that Stinnett's testimony lacked credibility.

Our standard of review is well known and was properly cited by the Court of
Appeals: When examining the sufficiency of the evidence in a criminal case, the
standard of review is whether, after reviewing all the evidence in the light most favorable
to the prosecution, the appellate court is convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt. State v. Northcutt, 290 Kan. 224,
231, 224 P.3d 564 (2010); State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009). We agree
with the Court of Appeals that there is strong evidence of Ward's involvement, including
direct evidence, and the issue of credibility was resolved by the jury and will not be
reweighed on appeal.

In the light most favorable to the prosecution, Stinnett's testimony established that
the four controlled drug buys took place. Certainly, Stinnett's credibility was in question
during the trial, but the defense was given ample opportunity to thoroughly cross-
examine her. Additionally, the jury was made aware that Stinnett was cooperating with
law enforcement in exchange for the dismissal of charges against her, some of which
were drug related, and the trial court gave a cautionary instruction regarding the
testimony of a confidential informant. As aptly noted by the Court of Appeals, the
credibility of Stinnett was solely within the province of the jury and not within that of an
appellate court, which does not reweigh evidence, assess the credibility of the witnesses,
or resolve conflicting evidence. Gant, 288 Kan. at 80.

Ward also asserts her convictions should be reversed because there is only
circumstantial evidence to support them. The legal premise of this argument is ill-
47

founded because the law clearly allows a conviction of even the gravest offense to be
based on circumstantial evidence. State v. Becker, 290 Kan. 842, 852, 235 P.3d 424
(2010) (stating general principle and noting that specific intent need not be shown by
direct proof but may be shown by acts, circumstances, and reasonable inferences
"deducible therefrom"); State v. Tyler, 286 Kan. 1087, 1095, 191 P.3d 306 (2008)
(circumstantial evidence is evidence of events or circumstances from which reasonable
factfinder may infer existence of material fact in issue). Certainly, Ward was free to argue
to the jury that the circumstantial nature of much of the evidence created reasonable
doubt, but on appeal we accept the circumstantial evidence in the light most favorable to
the State when assessing sufficiency. Further, the factual premise of Ward's argument is
also ill-founded because there was direct evidence—observations—of the transactions by
officers and Stinnett.

In this regard, in Ward's petition for review and supplemental arguments, she
focuses on the fact that Detective Wagenseller admitted during his testimony that he did
not actually see Ward and Stinnett exchange money or cocaine during any of the four
controlled drug buys, that he never recovered any marked purchase money from Ward,
and that no law enforcement officers actually saw Stinnett dial Ward's phone number.
And even though there was a videotape of some of the controlled buys, Deputy Troy
Briggs testified Ward could not actually be seen in any of the recordings. Briggs
indicated that he saw Stinnett enter and exit Ward's house on January 25 and January 31,
2007, but he admitted that he could not observe what happened inside.

Yet, the officers observed many aspects of the transactions, saw Ward in the blue
Suburban, overheard conversations, and verified many aspects of Stinnett's testimony.
For example, Officer Roy Williams testified that prior to this case he had known Ward
for about 5 years and had numerous conversations with Ward in his capacity as a
narcotics officer. Williams confirmed that Stinnett dialed Ward's phone number in each
of the controlled drug buys. He also testified that he recognized Ward's voice on the
48

audiotapes of the transactions and that he knew Ward owned a blue Suburban. Other
officers explained the steps taken to control the buys and to maintain audio and video
surveillance that allowed them to witness the general nature of the events.

In light of this evidence, we conclude that, even though the officers who
monitored the drug transactions did not witness the actual exchange of money and
cocaine between Ward and Stinnett, their observations and testimony, when considered
along with Stinnett's testimony, provide more than sufficient evidence that Ward sold
Stinnett crack cocaine on the four separate occasions identified in the charges.

Affirmed.

PAUL E. MILLER, District Judge, assigned.
1

1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court by art.
3, § 6(f) of the Kansas Constitution, Judge Miller was appointed to hear case No. 99,549
to fill the vacancy on the court created by the retirement of Chief Justice Robert E. Davis.

* * *

ROSEN, J., dissenting: I agree with the majority's well-reasoned opinion up to the
point where it finds the error in the trial court's failure to grant the defendant's motion for
mistrial harmless. As the majority concludes, a trial court almost always abuses its
discretion to take control of the courtroom when it allows witnesses or nonwitnesses to be
brought before a jury in jail clothing without articulated justification.

Much thought and planning has been given to the creation of the courtroom setting
in which the pursuit of justice is to be carried out. We strive for an ambience of dignity,
consideration, respect, and, most of all, impartiality, in which each witness' testimony is
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given its due evidentiary weight. When inmates in their inescapably identifiable bright
orange prison attire are purposely paraded into the courtroom as part of the staging of the
prosecution of an accused, it cannot help but prejudice the jury's perception of the
lifestyle and associations of the defendant, thereby compromising the heart of the
impartial proceedings we so fervently strive to achieve.

In this case, the State's procuring of the involuntary appearance of West and
Jackson in the courtroom gallery and their forced participation in Ward's trial while
wearing and being identified specifically by their prison attire clearly set them apart from
that group of peers and citizens that are typically observers of a public trial. Repeatedly
calling the jury's attention to the orange jumpsuits that these individuals were wearing
was blatantly prejudicial in that it directly called the jury's attention to the relationship
between the defendant and the spectators in "oranges," which served to declare the
defendant "guilty by sartorial association." All that was missing was a theater orchestra
playing a bar show/vaudeville parody of Stephen Sondheim's melody entitled "Send in
the Cons."

I regard this tactic as an impermissible manipulation by the prosecution that
created immeasurable prejudice to the defendant, which could not be overcome by the
weight of the remaining evidence against her. I would find the trial court's error in failing
to grant Ward's motion for mistrial not harmless and would reverse and remand for a fair
trial.

JOHNSON, J., joins in the foregoing dissent.