Kansas Supreme Court - 101551 – State v. Peppers

the misconduct show ill will? Was there a reasonable possibility that the misconduct
affected the verdict? See State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011).
"In assessing whether gross and flagrant conduct has occurred, appellate courts
should look to whether the prosecutor '"repeated or emphasized the misconduct."' State v.
Simmons, 292 Kan. 406, 417-18, 254 P.3d 97 (2011) (quoting State v. Madkins, 42 Kan.
App. 2d 955, 961, 219 P.3d 831 [2009]). Similarly, a prosecutor's ill will is usually
'reflected through deliberate and repeated misconduct or indifference to a court's rulings.'
Madkins, 42 Kan. App. 2d 955, 961, 219 P.3d 831 (citing State v. Bunyard, 281 Kan.
392, 407, 133 P.3d 14 [2006])." Chanthaseng, 293 Kan. at 148-49.
"Gross and flagrant" conduct may also be demonstrated by "an accumulation of
comments that would not individually be cause for reversal." Miller, 284 Kan. at 719. Ill
will may be found "when the prosecutor's comments were 'intentional and not done in
good faith.' [Citation omitted.]" 284 Kan. at 719.
Peppers argues that the prosecutor's misconduct in this case was repeated and that
it violated the district judge's pretrial order in limine. In Peppers' view, this demonstrates
that the improper comments by the prosecuting attorney were both gross and flagrant and
the product of ill will.
We disagree with these answers to the first two questions. The two comments
were very brief and virtually identical. When seen as the minor component of argument
that they were, they do not evidence indifference to the district judge's limine ruling. This
is not a situation in which a prosecutor persisted in bad behavior after being warned or
admonished contemporaneously by the trial judge. See, e.g., Inkelaar, 293 Kan. at 430
(quoting Madkins, 42 Kan. App. 2d at 961) ("a prosecutor's ill will is usually 'reflected
through deliberate and repeated misconduct or indifference to a court's rulings'").
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