State v. Payne

1

NOT DESIGNATED FOR PUBLICATION

No. 119,083


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MAHOGANY JALENE PAYNE,
Appellant.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed September
20, 2019. Conviction reversed, sentence vacated, and case remanded with directions.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Joan Lowdon, deputy county attorney, Todd Thompson, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON and ATCHESON, JJ.

PER CURIAM: The power of closing argument in a criminal case cannot be
overstated, especially when the jury's verdict turns on limited circumstantial evidence. A
skilled prosecutor may weave that evidence into a tight narrative that virtually demands a
finding of guilt. A similarly skilled defense lawyer, however, may point out gaps in the
evidence suggestive of reasonable doubt and, thus, an obligation to render a not guilty
verdict. The foundation of our adversarial system of adjudication depends upon that sort
2

of clash of advocates testing the evidence in a given case, thereby guiding lay jurors to a
"true" verdict.

The Leavenworth County District Court deprived Defendant Mahogany Jalene
Payne of her right to a fair trial when it impermissibly terminated her lawyer's closing
argument to the jury. Payne had been charged with sexually assaulting two young
children for whom she provided daycare. Her lawyer had thoroughly discussed one of the
charges in his closing argument and had just begun to discuss the other when the district
court ordered him to sit down without finishing, ostensibly because he had strayed
outside the evidence in his comments. The two prosecutors trying the case presented their
complete opening and rebuttal arguments to the jury. The jury came back with a not
guilty verdict on the charge Payne's lawyer got to address in closing argument and a
guilty verdict on the charge he wasn't allowed to discuss.

As we explain, the district court's action compromised Payne's constitutionally
protected right to be represented by a lawyer at all critical stages of the case against her
and, in turn, impermissibly diminished her constitutional rights to a jury trial and to due
process. The record fails to demonstrate good cause for the district court's extraordinary
decision to terminate the closing argument. And given the comparatively slim
circumstantial evidence supporting the guilty verdict, we cannot say the district court's
error was harmless. We, therefore, reverse Payne's conviction, vacate her sentence, and
remand with directions that she promptly be granted a new trial.

FACTUAL AND PROCEDURAL HISTORY

In July 2016, the State charged Payne with two counts of rape alleging she had
sexually abused two young girls for whom she provided childcare. Although the charged
incidents occurred about nine months apart, the State's theory was the same: Payne had
forcefully penetrated each girl's vagina with her hands or an object causing discernable
3

injuries. See K.S.A. 2016 Supp. 21-5503(a)(3) (criminalizing "sexual intercourse" with
child under 14 years of age as rape); K.S.A. 2016 Supp. 21-5501(a) (defining "sexual
intercourse" as "any penetration of the female sex organ by a finger, the male sex organ
or any object"). As charged, each crime was an off-grid felony punishable by life in
prison. K.S.A. 2016 Supp. 21-5503(b)(2); K.S.A. 2016 Supp. 21-6627(a)(1)(B). The jury
heard evidence and considered the case for three days in early October 2017.

On the count on which the jury returned a not guilty verdict, the State alleged
Payne assaulted A.R. in April 2015, when she was a little over five years old. The State's
evidence included deposition testimony from a physician who examined the child and
said the condition of her genitalia was consistent with forcible penetration. But, as
Payne's lawyer pointed out to the jury in closing argument, the physician acknowledged
the condition was also consistent with various infections or other nontraumatic causes.
A.R. gave a statement to investigators in which she said Payne assaulted her, and she
repeated that accusation in general terms from the witness stand at trial. A.R. testified
that Payne "scratched" her vagina after giving her a bath, causing her to bleed into her
underwear. Again in closing argument to the jury, Payne's lawyer pointed to
inconsistencies in A.R.'s accounts and to his expert witness' testimony that the
investigatory interview was highly suggestive and channeled A.R. into describing a
sexual assault.

Based on the evidence and after hearing closing arguments from the prosecutors
and Payne's lawyer, the jurors were left with a reasonable doubt as to Payne's guilt on the
charge of raping A.R. Adhering to their duty as outlined in the jury instructions, they
returned a verdict of not guilty on that count.

On the count on which the jury convicted, the State alleged Payne sexually
assaulted M.G., who was then about a year-and-a-half old. The State did not present any
investigatory interview of M.G. for the jurors' consideration, and she did not testify
4

during the trial. M.G.'s mother testified that M.G. was fine when she dropped the child
off at Payne's home one morning in January 2016. That evening when M.G.'s mother
changed her daughter's diaper she noticed a reddish stain. On the second diaper change,
M.G.'s mother saw considerably more red discharge and concluded the child might be
bleeding from her vaginal area. She took M.G. to an area hospital. The physicians there
had M.G. transferred to Children's Mercy Hospital in Kansas City, Missouri, where a
pediatrician with training in diagnosing child abuse examined her. The pediatrician
observed significant internal injuries to M.G.'s vagina that likely would have been caused
by the insertion of a blunt object—in short, by sexual abuse. The pediatrician, who
testified as a State's witness, said M.G.'s injuries might have resulted from some highly
unusual scenario in which the child forcefully impaled herself on some object. With that
evidence, the State's case essentially rested on inferential evidence: M.G. was perfectly
okay when she arrived at Payne's home in the morning, and when her mother retrieved
her that evening she was anything but okay. So somebody sexually abused M.G. in
between while she was in Payne's care.

During the trial, Payne testified in her own defense and denied harming A.R. or
M.G. in any way, consistent with what she had earlier told investigators. Payne described
M.G. to the jurors as a normally lively, outgoing child. But Payne told the jurors that on
the day in question M.G. was out of sorts and listless. Payne described M.G. as having a
severe diaper rash and recalled her mother saying she planned to take the child to the
doctor. A friend of Payne's testified she was at Payne's home that morning and told the
jurors M.G. seemed unusually quiet. Payne's therapist also testified that she generally
stopped by to see Payne on a weekly basis and happened to be there that morning. The
therapist regularly met with Payne to help her cope with a constellation of health
problems that kept her from outside employment and otherwise limited her activities. The
therapist testified that she, too, thought M.G., who she had seen other times, appeared
subdued and especially "clingy." The therapist told the jurors she saw Payne change M.G.
and was taken aback by the severity of the child's diaper rash. She said the rash was so
5

bad she considered the condition to be indicative of marked parental indifference and
contemplated calling the Kansas Department for Children and Families to report M.G. as
neglected and in need of care. The therapist said she didn't do so because Payne told her
M.G.'s mother had made a doctor's appointment.

The district court allotted each side 30 minutes to present closing arguments to the
jury. Although the prosecutors focused their closing argument to the jury on the evidence
regarding A.R., they discussed the evidence pertaining to M.G. as they wished within that
time limit. Payne's lawyer also began his argument by looking at the evidence about A.R.
He had barely begun to discuss the evidence related to M.G. when one of the prosecutors
lodged an objection on the grounds his comments seemed to go beyond the evidence. The
district court sustained the objection. Payne's lawyer recast the point and drew another
objection. The district court again sustained the objection and immediately ordered
Payne's lawyer to sit down without finishing his argument. We set out the exchange
verbatim in our analysis of the legal error. One of the prosecutors then presented a
rebuttal argument to the jury.

The jurors convicted Payne of raping M.G.—the charge on which they effectively
heard no closing argument from her lawyer.

At a later hearing, the district court imposed a sentence of life in prison on Payne.
She may be considered for parole from prison after serving 25 years. Payne has timely
appealed.

LEGAL ANALYSIS

For her only issue on appeal, Payne challenges the district court's decision to cut
off her lawyer's closing argument. She alleges undue prejudice based on the district
court's characterization of the particular argument, the termination of any further defense
6

argument, and the limited evidence supporting the charge involving M.G. Before turning
to the specific point, we offer some context drawn from the trial record.[1]

[1]The lawyer from the Appellate Defender Office handling this appeal did not
represent Payne in the district court.

District Court's Ruling Placed in Context

Payne's lawyer took an approach to the trial that could be viewed as deliberately
testing some rulings of the district court limiting the discussion of certain topics in front
of the jury. Notwithstanding those rulings made both before and during the trial, the
lawyer ventured into forbidden territory in the jury selection process, in his opening
statement, and in questioning some witnesses. The prosecutors objected to much of that
conduct, and the district court generally sustained the objections. Other times, Payne's
lawyer would launch a line of questioning drawing an objection the district court
sustained. The lawyer often seemed to pick up precisely where he left off, provoking
renewed objections and further district court intervention. The particulars of those
disputes have no direct bearing on the appeal, so we choose not to burden this opinion
with a recitation of their substance. We may fairly conclude that over the course of the
three-day trial, Payne's lawyer strained the patience of the prosecutors and the district
court and left them exasperated.

The transcript does not contain timestamps, so we don't know exactly how long
the prosecutors or Payne's lawyer spoke during their respective closing arguments. The
prosecutors reserved 5 of their 30 minutes for rebuttal. The prosecutors' opening
argument fills about 15 pages of transcript and the rebuttal about 3 pages. We have
roughly estimated that to be about 25 minutes, depending on the pace of the argument,
which is something we can't directly assess from the transcript.

7

In his argument, Payne's lawyer spoke first about the evidence related to A.R. That
portion of the argument covers 10 pages in the transcript. He then turned to the evidence
concerning M.G. and almost immediately drew the two objections that prompted the
district court to terminate the argument. The immediate dispute and the district court's
resolution of it unfolded this way:

"[DEFENSE LAWYER]: . . . Most of the time [M.G.] was a happy, joyful child,
but that there had been occasions in the past in which the child arrived despondent,
clingy, upset, sick. I believe the inference may be more than physical. Something is
going on with this child, and it may well be psychological. Now, I'm not going to stand
here—
"[PROSECUTOR]: Judge—
"[DEFENSE LAWYER]: —and accuse—
"[PROSECUTOR]: —I'm going to object to that.
"THE COURT: Yeah. I'll sustain it and strike that because it's—that's
speculation on something that's never been testified to at all. It's just you're dreaming
about things, [defense lawyer], and—
"[DEFENSE LAWYER]: Well, the jury can certainly make their own
inferences.
"THE COURT: Well, you're not to comment on things that are not part of the
evidence that's been presented. There's been no evidence presented about psychological
abuse, so don't comment on things that are just speculation.
"[DEFENSE LAWYER]: You can draw your own inferences. I believe
something's going on with this child, but it's not my intention to accuse—
"[PROSECUTOR]: Judge—
"THE COURT: All right.
"[PROSECUTOR]: —the State—
"THE COURT: You're done with your closing remarks, [defense lawyer]. Sit
down."

The lawyer's reference to something "psychological" going on with M.G. appears
to have no anchor in the trial evidence. So the prosecutor's initial objection was well-
8

taken. See Biglow v. Eidenberg, 308 Kan. 873, 894, 424 P.3d 515 (2018) (improper for
lawyer to refer to facts not in evidence during closing argument); State v. Thurber, 308
Kan. 140, 162, 420 P.3d 389 (2018). Payne doesn't argue otherwise on appeal.

Payne does, however, take issue with the district court's remark that her lawyer
was "dreaming." Payne has a point, though perhaps a minor one, on that score. While
district courts have to maintain order during trials and must police the advocates' attempts
to offer impertinent evidence or unsheathe improper arguments, they should do so
professionally and without editorializing, sarcasm, or unduly extended disquisitions—
forms of commentary jurors may misperceive as indicative of a judicial leaning toward
one side and against the other. State v. Kemble, 291 Kan. 109, 114, 238 P.3d 251 (2010);
State v. Miller, 274 Kan. 113, 128, 49 P.3d 458 (2002) ("When it becomes necessary
during the trial to comment upon the conduct of witnesses, spectators, counsel, or others,
or upon the testimony, the judge should do so in a firm, dignified, and restrained manner,
avoiding repartee, limiting comments and rulings to what is reasonably required for the
orderly progress of the trial, and refraining from unnecessary disparagement of persons or
issues."); State v. Hamilton, 240 Kan. 539, 545, 731 P.2d 863 (1987). Use of the term
"dreaming," albeit impromptu, probably oversteps the line separating good judicial
practice from inadvisable ridicule. But Payne's lawyer exacerbated the situation and the
impact of the district court's ruling on the initial objection by interrupting to further
debate the point.

After that exchange, Payne's lawyer recast his argument to say simply that
"something" was going on with M.G. That looks to be fair comment insofar as the
undisputed evidence—principally the testimony of the pediatrician from Children's
Mercy Hospital—showed that M.G. had been physically abused in a sexual way. That
certainly qualifies as "something." And Payne presented testimony from two witnesses
that M.G. seemed noticeably out of sorts. The prosecutor again objected, and the district
9

court not only sustained the objection but took the extraordinary step of ending the
lawyer's closing argument on behalf of Payne.[2]
[2]The lawyer's use of the term "I believe" probably rendered part of the argument
an expression of his personal opinion and, thus, technically objectionable for that reason.
See State v. Charles, 304 Kan. 158, 175, 372 P.3d 1109 (2016) (prosecutor's repeated use
of phrase "'I think'" in closing argument amounted to "verbal tic" to be avoided rather
than genuinely improper argument based on deliberate expression of opinion about the
evidence); State v. Weber, No. 102,572, 2010 WL 5139933, at *6 (Kan. App. 2010)
(unpublished opinion) (use of "I believe" to preface point in closing argument likely
improper). The lawyer simply should have omitted the phrase or referred to "the
evidence" showing "something" to have been going on with M.G. We do not understand
either the prosecutor's objections or the district court's rulings to be based on that flaw.
That sort of technical error could not justify the termination of the argument. 2010 WL
5139933, at *6.

Payne's lawyer did not attempt to proffer the balance of his closing argument
outside the presence of the jury after the district court ordered him to stop. So we don't
know what he intended to focus on in discussing the evidence about M.G. or how much
longer he might have spoken to the jurors. The transcript certainly indicates the lawyer
still had a fair amount of his 30 minutes to outline potential avenues to reasonable doubt.
His final refrain dismissing an "intention to accuse" might well have been a rhetorical
cushion leading into a suggestion that M.G.'s mother or another family member had
abused the child before she was brought to Payne's home that morning. In his opening
statement, the lawyer had briefly alluded to someone other than Payne being M.G.'s
abuser without more specifically identifying any suspects.

District Court Erred in Terminating Closing Argument

The propriety of the district court's decision to cut off the closing argument and the
resulting prejudice to Payne depend upon no disputed facts. The circumstances are
captured in the trial transcript and require no credibility determinations or resolutions of
conflicting evidence. In that sense, we may independently assess what the district court
did. Typically, however, district courts enjoy broad discretion in managing jury trials and
10

other proceedings, and their conduct will be reviewed for abuse of that judicial discretion.
See State v. McLinn, 307 Kan. 307, 332, 409 P.3d 1 (2018) (considering scope of closing
argument); Harsch v. Miller, 288 Kan. 280, 288, 200 P.3d 467 (2009) (general authority);
Hamilton, 240 Kan. at 547 (trial proceedings). A district court may be said to have
abused its discretion if the result it reaches is "arbitrary, fanciful, or unreasonable."
Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). That is, no
reasonable judicial officer would have come to the same conclusion if presented with the
same circumstances. An abuse of discretion may also occur if the district court fails to
consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan.
297, 299, 202 P.3d 15 (2009). A district court errs in that way when its decision "'goes
outside the framework of or fails to properly consider statutory limitations or legal
standards.'" 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d
1208 [2007]). Finally, a district court may abuse its discretion if a factual predicate
necessary for the challenged judicial decision lacks substantial support in the record.
Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d
1106 (2013) (outlining all three bases for an abuse of discretion); State v. Ward, 292 Kan.
541, Syl. ¶ 3, 256 P.3d 801 (2011).

We presume without deciding that the district court's ruling silencing Payne's
lawyer in the midst of his closing argument should be reviewed for an abuse of
discretion, since that would be the standard most deferential to the ruling. Even with that
deference, the district court's decision fails under each ground establishing an abuse of
judicial discretion. In short, the district court unquestionably erred in cutting off the
closing argument.

Judicial impingement of a criminal defendant's closing argument implicates
constitutional protections rooted in the right to counsel and the right to jury trial as
guaranteed in the Sixth Amendment to the United States Constitution and § 10 of the
Kansas Constitution Bill of Rights. Those Sixth Amendment rights have been
11

incorporated through the Due Process Clause of the Fourteenth Amendment to the United
States Constitution and apply to criminal proceedings in state courts. Herring v. New
York, 422 U.S. 853, 856-57, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). There is also a
separate Fourteenth Amendment due process overlay associated with the deprivation of
liberty that looms in a criminal case.

Under the Sixth Amendment, a defendant is entitled to be represented by a
competent lawyer at all "critical stages" of a criminal case. Montejo v. Louisiana, 556
U.S. 778, 786, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009); United States v. Cronic, 466
U.S. 648, 654-55, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); State v. Jones, 290 Kan. 373,
379, 228 P.3d 394 (2010). The right is a fundamental one essential to the fair adjudication
of serious criminal charges. Cronic, 466 U.S. at 653-54. Closing argument to a jury is,
not surprising, a critical stage of a criminal prosecution. Herring, 422 U.S. at 858 ("There
can be no doubt that closing argument for the defense is a basic element of the adversary
factfinding process in a criminal trial."); State v. Engelhardt, 280 Kan. 113, 124, 119 P.3d
1148 (2005) (recognizing closing argument as critical stage in criminal trial). As the
Court pointed out, "it has universally been held that counsel for the defense has a right to
make a closing summation to the jury, no matter how strong the case for the prosecution
may appear to the presiding judge." Herring, 422 U.S. at 858. We need not belabor the
point and turn, instead, to the Herring Court's explanation of the necessary—indeed,
critical—function of closing argument in a criminal case as a tool for extracting a just
result from witness testimony and other evidence that sometimes may be confusing,
contradictory, or even duplicitous:

"It can hardly be questioned that closing argument serves to sharpen and clarify
the issues for resolution by the trier of fact in a criminal case. For it is only after all the
evidence is in that counsel for the parties are in a position to present their respective
versions of the case as a whole. Only then can they argue the inferences to be drawn from
all the testimony, and point out the weaknesses of their adversaries' positions. And for the
12

defense, closing argument is the last clear chance to persuade the trier of fact that there
may be reasonable doubt of the defendant's guilt." 422 U.S. at 862.

At the same time, however, those constitutional imperatives do not extend an
entirely open forum to lawyers making closing arguments in criminal cases. 422 U.S. at
862; see State v. Chambers, No. 111,390, 2015 WL 967595, at *8 (Kan. App. 2015)
(unpublished opinion) (recognizing and endorsing widespread case authority precluding
defense lawyer from discussing concept of jury nullification in closing argument). As we
have said, a district court may regulate closing arguments on both sides in a criminal case
to promote an honest adjudication consistent with the defendant's right to a fair trial and
the State's obligation to hold wrongdoers to account. But that regulation must be
surgically applied to carefully excise any malignancy while preserving the constitutional
protections extended to criminal defendants, particularly their right to counsel.

We now apply the standard for abuse of judicial discretion. First, the district court
misperceived the revised argument that sparked the decision to terminate the closing
argument. As we have described, Payne's lawyer improperly referred to M.G.'s
"psychological" condition, something falling outside the trial evidence. Upon the
prosecutor's sustained objection, the lawyer rephrased the argument to refer to M.G.'s
condition more generally, consistent with the testimony that she was unusually sedate and
clingy. That much of the lawyer's revised remark entails fair comment on the evidence,
notwithstanding the prosecutor's renewed objection. The district court should have
overruled the second objection and, in turn, lacked a factual basis to terminate the closing
argument. In other words, the district court grounded its decision in an erroneous factual
predicate, since the argument no longer rested on information outside the evidence.
Granted, the wording of the recast argument was quite similar to the wording of the
objectionable argument, and the district court may not have appreciated the difference.
But there was, in fact, a material difference. We don't see that the district court's possible
13

failure to appreciate the change renders the decision to terminate the argument any less an
abuse of discretion, especially given the impact on Payne's fundamental rights.

The district court appears to have ruled almost reflexively in sustaining the
prosecutor's renewed objection to the lawyer's revised argument that something was
wrong with M.G. when she arrived at Payne's home. We see no indication the district
court considered the constitutional implications of its decision to terminate the defense's
closing argument. Nor did the district court appear to weigh and reject some lesser
remedy.

We can't say for certain in this case but a stern rebuke at the bench often has a
curative effect on a lawyer's improper conduct. More pointedly, a district court could
admonish a lawyer in front of the jury for serial misconduct, especially in the face of
earlier rulings addressing the same sort of bad behavior. See State v. Wells, No. 104,433,
2012 WL 3000340, at *6 (Kan. App. 2012) (unpublished opinion) (noting curative effect
of district court admonishing prosecutor in front of jury). A district court could separately
punish a lawyer's flagrantly contumacious trial conduct in defiance of clear orders or
procedural rules as direct criminal contempt—resulting in a fine, incarceration, or
nonmonetary sanctions such as completion of a legal education program. See State v.
Jenkins, 263 Kan. 351, 354-60, 950 P.2d 1338 (1997) (discussing scope of contempt
proceedings against lawyers for conduct in representing clients); In re Sanborn, 208 Kan.
4, 14-15, 490 P.2d 598 (1971).

The district court here simply (and improvidently) abandoned any sequential steps
to fix the perceived deficiency in the closing argument and essentially turned
immediately to an extraordinary remedy that jeopardized Payne's constitutional rights.
Even if Payne's lawyer's recast argument were still improper, the district court's decision
appears to have ignored and stepped outside the appropriate legal framework for
14

conducting criminal trials consistent with those constitutional rights. The decision
amounted to an abuse of discretion for that reason.

Payne's lawyer did not give a closing argument riddled with objectionable
remarks. The prosecutor lodged two earlier objections on what may be characterized as
comparatively minor points. First, Payne's lawyer referred to the forensic interview
techniques used with A.R., getting into an area the district court had restricted. The
district court sustained the prosecutor's objection. Second, the prosecutor complained that
Payne's lawyer had mischaracterized part of her opening argument to the jury. The
district court agreed without formally ruling on the objection and suggested the lawyer
confine his discussion to the evidence. Those exchanges were the stuff of everyday trial
disputes—not grossly excessive or patently improper comments tending to undermine the
integrity of the trial process. Payne's lawyer had not turned his closing argument into a
guided missile aimed at blowing up the trial.

Similarly, the district court could not have terminated the closing argument as
some sort of "ultimate sanction" based on the cumulative conduct of Payne's lawyer in
trying the case. The district court presumably took those steps it believed were necessary
to remedy each of the lawyer's earlier transgressions. As a result, the district court had no
justification for a disproportionately harsh response to the lawyer's relatively mundane
comments about M.G.'s condition when she arrived at Payne's home, even if both
comments were improper (although we view only the first as objectionable).

In looking at the final way a district court may abuse its discretion, we take
account of all of the circumstances surrounding the particular decision being challenged.
Here, that view encompasses at the very least the closing arguments both the prosecutors
and Payne's lawyer delivered and more broadly how the three-day trial was generally
conducted. From either of those vantage points, we conclude—and do so without
reservation—that a reasonable judge would not have prevented Payne's lawyer from
15

continuing his closing argument to the jury. We decline to speculate about why the
district court felt the need to shut down the argument. The district court neither stated a
reason at the time nor said anything else that could be parsed for some insight into the
ruling. In short, the district court's action was patently unreasonable and, therefore,
amounted to an abuse of discretion on that ground.

Although Payne has asserted that the district court's dismissive comment to her
lawyer that he was "just . . . dreaming about things" in his closing argument amounts to a
freestanding error requiring reversal, we set that contention aside. The district court's
choice of words left something to be desired, especially in front of the jurors. But any
possible error pales next to the district court's decision to cut off the argument moments
later. So we need not and do not say more about that specific claim except to observe that
it would be analyzed under the test the Kansas Supreme Court recently adopted for
"judicial comment error." State v. Boothby, 310 Kan. ___, ___ P.3d ___, 2019 WL
4230521, at *4 (2019).

Even giving the district court the benefit of the deferential abuse of discretion
standard, we find obvious error in terminating Payne's lawyer's closing argument. We
next turn to the matter of the remedy, if any, due Payne.

District Court's Error Deprived Payne of Fair Trial

Payne argues that the district court's errors in commenting on and then terminating
her lawyer's closing argument deprived her of a fair trial, given the comparatively limited
circumstantial evidence the State offered to show she sexually abused M.G. and the
countering evidence she presented. Payne relies on a remarkably cursory outline of the
evidence and the resulting prejudice. We consider only the termination of the closing
argument and offer a more detailed analysis of possible prejudice.

16

The parties have not presented the appellate issue as if it involved structural error
requiring reversal of Payne's conviction without a showing of actual prejudice. See Neder
v. United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (Structural
errors "infect the entire trial process" and "deprive defendants of 'basic protections'"
essential to the reliable functioning of the criminal justice process; as such, they "defy
harmless-error review.") (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101,
92 L. Ed. 2d 460 [1986]). We suppose the parties have correctly framed the issue. See
Neder, 527 U.S. at 8 ("complete denial of counsel" deemed structural error); but see
Glebe v. Frost, 574 U.S. 21, 135 S. Ct. 429, 430-31, 190 L. Ed. 2d 317 (2014) (Court
assumes without deciding Herring recognizes denial of closing argument as structural
error but holds trial court restriction on content of argument subject to harmless error
review).

As we have explained, the district court's ruling prevented Payne's lawyer from
presenting any closing argument to the jury on the evidence concerning M.G. The
prosecutors, however, had the opportunity to argue how the evidence about A.R.
established Payne's guilt on that charge and how the evidence about M.G. established her
guilty on that charge. The jurors were instructed that they should consider the evidence
on each charge separately and should return a verdict on each charge based only on the
law and evidence related to it. See PIK Crim. 4th 68.060 (jury instruction to consider
evidence on each count independently of evidence on other counts); State v. Cruz, 297
Kan. 1048, 1057-58, 307 P.3d 199 (2013) (recognizing instruction like PIK Crim. 4th
68.080 as effective tool directing jurors' consideration of evidence in cases involving
distinct criminal episodes charged as separate counts). So the closing arguments on each
charge would have served a separate and distinct role in aiding the jurors in reaching a
verdict on that charge. But the district court deprived Payne of that opportunity with
respect to M.G. In this case, given the limited (and disputed) evidence of Payne's guilt on
the charge she sexually abused M.G., she has shown actual prejudice resulting from her
17

lawyer's inability to argue why the jurors should have had a reasonable doubt about the
State's proof of her guilt. And the State has not shown the error to be harmless.

In Ward, 292 Kan. 541, Syl. ¶ 6, the court outlined the standard for harmless error
when a criminal defendant's constitutional rights have been compromised during a trial:
The State, as the party benefiting from the error, must show beyond a reasonable doubt
that the error did not affect the outcome in light of the overall record. Here, the State
attempts to satisfy that heavy burden simply by pointing to the jury's split verdict finding
Payne not guilty as to A.R. and guilty as to M.G. The argument is unpersuasive.

Kansas appellate courts occasionally point to split verdicts to suggest a jury has
not been unduly influenced by a prosecutor's improper remarks or otherwise caught up in
an emotional furor to convict for some other impermissible reason. See State v. Tosh, 278
Kan. 83, 91-92, 91 P.3d 1204 (2004); State v. Miller, No. 109,716, 2015 WL 3632029, at
*13 (Kan. App. 2015) (unpublished opinion); State v. Baker, No. 96,979, 2008 WL
440683, at *4 (Kan. App. 2008) (unpublished opinion). In some cases, those may be
reasonable suppositions. But reading the tea leaves of a jury's mixed verdicts on multiple
counts against a defendant is fraught with inexactitude and guesstimating as a general
exercise, especially given the breadth of considerations that may influence deliberations
in any particular case. See United States v. Powell, 469 U.S. 57, 64-67, 105 S. Ct. 471, 83
L. Ed. 2d 461 (1984) (outlining reasons appellate courts should avoid drawing inferences
from seemingly inconsistent verdicts in a criminal case); State v. Hargrove, 48 Kan. App.
2d 522, 559-60, 293 P.3d 787 (2013). The split-verdict rationale for harmlessness can, at
best, be applied only to errors that infect the overall trial process, such as a prosecutor's
impermissibly inflammatory argument to convict based on passion or prejudice rather
than the evidence. A not guilty verdict on one or more charges arguably suggests the
jurors did not fall sway to the argument in convicting on other charges—although they
actually might have acquitted on more charges but for the impropriety.

18

But split verdicts say nothing about a serious trial error that affects only a count on
which the jurors convicted the defendant. By definition, that sort of error would not have
influenced the jurors one way or the other in finding the defendant not guilty on other
counts. This case illustrates the point and, thus, the insufficiency of the State's argument
for harmlessness. The district court's ruling prematurely terminating Payne's lawyer's
closing argument affected only the charge related to M.G.—that's the one he never got to
discuss with the jurors. The lawyer presented all or nearly all his comments about why
the jurors should have a reasonable doubt Payne abused A.R. And they agreed with him.
Nothing about the not guilty verdict, however, suggests the jurors would have convicted
Payne of abusing M.G. even if her lawyer got to present his closing argument on that
charge. Given the limited evidence as to M.G., the split verdict could just as well
obliquely support the opposite conclusion.

As we have said, the State offered nothing that could be characterized as damning
evidence Payne abused M.G. No eyewitness testified to any abuse. Payne did not confess.
To the contrary, she consistently maintained her innocence during the investigation and
took the stand to tell the jurors so during the trial. There was no forensic evidence, such
as DNA, to support the charge. And there was no "smoking gun" evidence like
videotapes some child molesters make to document their misdeeds. See, e.g., State v.
Cessna, No. 115,999, 2018 WL 386844, at *1 (Kan. App. 2018) (unpublished opinion);
State v. Rae, No. 111,195, 2015 WL 4879043, at *1 (Kan. App. 2015) (unpublished
opinion). The State presented only a slender circumstantial case against Payne.

On appeal, the State has advanced neither a comprehensive nor a compelling
reading of the record convincing us beyond a reasonable doubt that Payne necessarily
would have been convicted of abusing M.G. if her lawyer had been permitted to argue the
limitations, indeed the outright fragility, of the case against her. The district court's error
in depriving Payne of a closing argument on that charge compromised her fundamental
constitutional rights and cannot be dismissed as harmless. The remedy requires we
19

reverse Payne's conviction, vacate her sentence, and remand the case to the district court
with directions to grant Payne a new trial on the rape charge involving M.G.[3]

[3]The jury's not guilty verdict on the charge involving A.R. remains intact and is
unaffected by our decision to reverse the guilty verdict as to M.G. See K.S.A. 2018 Supp.
21-5110(a)(1); City of Salina v. Amador, 279 Kan. 266, Syl. ¶ 3, 106 P.3d 1139 (2005)
(constitutional protection against double jeopardy precludes "a second prosecution for the
same offense after acquittal").

We close with an observation about an issue that remains unresolved in light of
our determination that the district court erred in cutting off Payne's lawyer's closing
argument: Are there circumstances in which a district court could terminate a defendant's
closing argument in a criminal case without committing error? We presume so. A district
court almost certainly must hold that inherent authority, although its actual exercise ought
to be a truly exceptional rarity built upon exacting considerations for the defendant's
fundamental right to a fair trial. See State v. Shadden, 290 Kan. 803, 816, 235 P.3d 436
(2010) (noting "district court's inherent authority to manage the course of trials" in
context of entering orders in limine); State v. Williams, 259 Kan. 432, 446, 913 P.2d 587
(1996) (court holds authority to insure "orderly progress" of case and cannot be "thwarted
and obstructed" in that mission by a criminal defendant's conduct). That is to say, it
should be a remedy of last resort. Here, the district court hurled its lightning bolt without
having issued a thunderstorm warning.

Suppose, for example, a defense lawyer persists in arguing to the jurors they can
disregard the law and the evidence to bring back a not guilty verdict, even though the
district court has sustained repeated objections from the prosecutor and admonished the
lawyer. The argument is plainly improper, and the lawyer's continuing conduct likely
amounts to contempt of court and an ethical violation. Neither a contempt penalty nor
some form of ethics sanction would resolve the immediate problem posed during the trial.

20

The district court could, of course, continue sustaining objections and trust the
good sense of the jurors to recognize the lawyer's improper conduct for what it is and to
ignore the argument. We think, however, the district court would act within its discretion
to inform the lawyer, perhaps at the bench though definitely on the record, that he or she
needs to move on to any other points he or she intends to make to the jurors because the
next reference to jury nullification will signal the absence of any other points and result
in an order immediately terminating the closing argument. Having duly informed the
lawyer of the consequences of persisting with the improper argument, the district court
could then act on the warning consistent with its discretionary authority.[4]

[4]A recalcitrant criminal defense lawyer presents the district court with fewer
good corrective options than does a prosecutor or the advocates in a civil action. A
mistrial might be an appropriate remedy, especially if the aggrieved party concurred. But
a criminal defendant facing likely conviction would almost certainly prefer a mistrial to
submitting the case to the jury. And a district court can grant a new trial to redress the
improper conduct of a prosecutor or civil litigants. A not guilty verdict cannot be set
aside. See K.S.A. 2018 Supp. 22-3501(1) (criminal defendant may move for new trial "in
the interest of justice"; no comparable right for State on not guilty verdict). Moreover, a
district court's proper decision to cut off a defense lawyer's closing argument raises the
specter of a defendant's claim for ineffective assistance of counsel in a later motion for
habeas corpus relief under K.S.A. 60-1507.

We close by summarizing our decision. Based on the district court's abuse of
discretion in terminating Payne's lawyer's closing argument—an error that cannot be
considered harmless given the record evidence in this case—we reverse Payne's
conviction, vacate her sentence, and remand with directions she be granted a new trial.