State v. Murrin

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NOT DESIGNATED FOR PUBLICATION

No. 117,066

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRIAN ALLEN MURRIN,
Appellant.


MEMORANDUM OPINION

Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed December 22, 2017.
Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON, J., and BURGESS, S.J.

PER CURIAM: Brian Allen Murrin was found guilty by a jury of one count of
possession of marijuana and one count of possession of drug paraphernalia. Murrin
appeals his convictions, arguing that the prosecutor committed reversible prosecutorial
error during closing arguments. Murrin specifically argues that the prosecutor committed
prosecutorial error by (1) misstating the law on possession; and (2) stating his personal
opinion of Murrin's guilt. When considered in the context of both parties' closing
arguments and Murrin's theory of defense, the prosecutor's closing argument did not
amount to prosecutorial error. Accordingly, Murrin's argument fails and his convictions
and sentence are affirmed.
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FACTUAL AND PROCEDURAL BACKGROUND

On June 17, 2015, a police officer with the Clay Center Police Department went to
1033 Dexter Street in Clay Center, Kansas, in an effort to locate Murrin. The officer's
reason for being at the home was that he had an arrest warrant for Murrin that was not
related to the present charges. This was not presented to the jury. When the officer
arrived at the home, Murrin greeted him at the door. Murrin told the officer that he had
some papers to show him, so he invited the officer inside. Murrin and his two young
children were the only people in the home.

Once inside the home, the officer stood in the living room while Murrin searched
for the papers. The officer noticed a silver colored smoking pipe sitting on an ottoman
near the couch. The officer recognized the pipe as the type often used to smoke illegal
substances. Initially, the officer did not say anything to Murrin about the presence of the
pipe.

As Murrin was searching for the papers, he walked near the ottoman. With one
hand, Murrin picked up a television remote. With his other hand, he picked up a hat.
While he was using the television remote, he dropped the hat on top of the pipe,
concealing it from the officer's view. The officer told Murrin that he had already seen the
pipe. The officer moved the hat and picked up the pipe. Murrin did not say anything but
continued searching for the papers.

The officer told Murrin he was under arrest. Before actually placing Murrin under
arrest, the officer requested Murrin's wife come home from work to watch the children.
The officer and Murrin waited in the living room for Murrin's wife to come home. She
arrived about 15 minutes later. Murrin told his wife that the officer had found the pipe.
Murrin's wife asked him, "What pipe[?]" Murrin told her, "[T]he pipe on the thing"—
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undoubtedly referring to the ottoman. At that point, Murrin's wife became angry. She told
the officer, "[W]hat the hell, take me to jail, that's mine."

The officer took Murrin outside of the home, because he did not want to arrest him
in front of the children. The officer placed Murrin under arrest. As he walked Murrin to
his police vehicle, Murrin's wife followed. She continued to plead with the officer to take
her to jail claiming that the pipe belonged to her. She was distraught. The officer took
Murrin away. He did not arrest Murrin's wife.

The pipe was sent to the Kansas Bureau of Investigation for testing. The test
results showed that the pipe contained tetrahydrocannabinol (THC), a compound found in
marijuana. On February 1, 2016, Murrin was charged with one count of felony possession
of marijuana and one count of misdemeanor possession of drug paraphernalia.

On August 12, 2016, a jury found Murrin guilty of both charges. Murrin's
presentence investigation report indicated that he was criminal history C. Murrin was
sentenced to a total controlling prison sentence of 30 months with 12 months of
postrelease supervision. Murrin filed a timely notice of appeal.

Did the Prosecutor Commit Reversible Prosecutorial Error in Closing Arguments?

In State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), our Supreme Court
reworked the concept of prosecutorial error and established a new standard of review for
claims thereof. Under Sherman, appellate courts use a two-step process to evaluate claims
of prosecutorial error:

"These two steps can and should be simply described as error and prejudice. To
determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
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does not offend the defendant's constitutional right to a fair trial. If error is found, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate '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.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). We continue
to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but
when 'analyzing both constitutional and nonconstitutional error, an appellate court need
only address the higher standard of constitutional error.' [Citation omitted.]" 305 Kan. at
109.

Murrin argues that the prosecutor committed reversible error by (1) misstating the
law on possession; and (2) stating his personal opinion of Murrin's guilt. As Murrin
presents two arguments relating to claims of prosecutorial error, we will address them
separately.

DID THE PROSECUTOR COMMIT REVERSIBLE PROSECUTORIAL ERROR BY
MISSTATING THE LAW ON POSSESSION?

Murrin takes issue with the prosecutor's statements relating to the law on
possession. Murrin specifically argues that the prosecutor improperly told the jury that
"knowledge [of] and access [to the pipe] were sufficient to convict [him] of possession of
the pipe." Murrin claims this was an incorrect statement of the law and therefore outside
the wide latitude given prosecutors in closing arguments. Murrin challenges the
prosecutor's following statements to the jury:

"Given the fact that Mr. Murrin was the only adult in the house, the fact it was
out there in plain sight, access for anyone, indicates possession. Not only does it indicate
possession, it indicates knowing possession. The officer didn't find it under the couch
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where somebody might have put it and Mr. Murrin not known. Found it in the very room
Mr. Murrin was in, right in plain sight, so as I said, that indicates not only possession but
it indicates knowing possession. Would have been hard to be in that room and not know
that was there when it's right there on the ottoman, and I would submit to you, ladies and
gentlemen, that there was no mistaking what this was. Mr. Murrin didn't say, what's that
thing? You know by its very appearance that you know it's not a tobacco pipe, it's not
something that's innocuous, something without some sort of identity to it. It's pretty
obvious when you see it that it's drug paraphernalia. It was there, he was there, it was in
the open, it contained a controlled substance."

Murrin further challenges the prosecutor's following statements to the jury made
during his rebuttal:

"[Defense counsel] said the act of putting the hat over it is how—I'm asking you
to find that because of that, ownership, no—I'm not asking you to find ownership at all
because he put a hat over it, I'm here to tell you, ladies and gentlemen, if he'd never put a
hat over it, but if it'd been out there in plain open sight with him in the living room when
[the officer] came in, I'd still be here today arguing this case for you, in front of you,
because guess what, he was the adult, only person in the house, other than very small
children, pipe is out in plain view of everyone. He possessed that pipe, ladies and
gentlemen."

Based on these statements from the prosecutor, Murrin argues that the "State's
argument, that knowledge of and access to the pipe is sufficient to establish possession,
was legally incorrect." Murrin relies on State v. Washington, 244 Kan. 652, 772 P.2d 768
(1989), for support of his argument.

In Washington, our Supreme Court spoke on the law of possession:

"We have held that possession of a controlled substance requires specific intent to
exercise control over the substance, with knowledge of the nature of the substance.
[Citation omitted.] The possession of a controlled substance may be immediate and
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exclusive, jointly held with another, or constructive as where the drug is kept by the
accused in a place to which he has some measure of access and right of control. [Citation
omitted.] Proof the required elements for possession of a controlled substance may be
established by circumstantial evidence. [Citations omitted.]" 244 Kan. at 654.

Murrin also points to State v. Beaver, 41 Kan. App. 2d 124, 200 P.3d 490 (2009),
in arguing that "'mere presence or access to the drugs' is insufficient to sustain a
conviction." The Beaver court was reviewing the sufficiency of the evidence of a
conviction for constructive possession. The court held:

"Factors establishing a defendant's possession of the drugs include the following: '[a]
defendant's proximity to the area where the drugs were found, the fact that they were in
plain view, the proximity of his belongings to the drugs, and his previous participation in
the sale of drugs.' [Citation omitted.] Additional factors include defendant's incriminating
statements and suspicious behavior. [Citation omitted.]" 41 Kan. App. at 129.

Here, as Murrin points out, the jury did not receive an instruction on constructive
possession. Murrin argues that because the jury did not have the benefit of a constructive
possession instruction, the prosecutor's alleged misstatement of the law is compounded.
In reality, the missing constructive possession jury instruction just means that the factors
from Beaver are not particularly relevant to his case. The jury did receive two
instructions on possession, both identical—one for possession of the marijuana and one
for possession of the pipe. Both instructions clearly defined "possession" as "having joint
or exclusive control over an item with knowledge of and the intent to have such control
or knowingly keeping some item in a place where the person has some measure of access
and right of control."

Murrin's argument boils down to the assertion that the prosecutor's closing
argument effectively changed the definition of possession so that a showing of
knowledge of and access to the pipe was sufficient to establish a conviction. Under the
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clearly stated jury instructions, however, the State was required to prove (1) control of the
pipe; (2) knowledge of the pipe; and (3) intent to control the pipe or knowingly keeping
the pipe where the person has some access and right of control. Thus, Murrin is arguing
that the State tried to shirk its burden of showing control and intent.

Murrin's argument fails in light of the State's entire closing argument. The
prosecutor clearly informed the jury that "[p]ossession means having joint or exclusive
control over an item with knowledge of and intent to have such control, or knowingly
keeping some item in a place where the person has some measure of access and right of
control." The prosecutor's definition of possession was identical to that contained in the
jury instruction. The prosecutor then told the jury that "when you follow jury instructions,
you're following the law of the State of Kansas." Later, in reply to Murrin's closing
argument, the prosecutor once again told the jury that "Jury Instruction No. 5 tells you
what I must prove to prove that Mr. Murrin possessed that [pipe], and you'll notice it
doesn't say anything about ownership. I only have to prove he possessed it." Finally, the
prosecutor told the jury: "This jury instruction says you must possess the pipe. It also
gives you a little bit of a definition of how the law defines possession." Thus, the
prosecutor referred the jury back to the instructions, or made it aware of the instructions,
at least four times during his closing arguments.

Moreover, it is clear from the excerpts of the closing arguments that both parties
focused on Murrin's wife's claim of ownership. Both parties acknowledge on appeal that
it was the key issue for the jury to consider and weigh in reaching its verdict. The
importance of the issue is further evidenced in the substance of Murrin's opening
argument at trial. During his opening, Murrin argued that

"there's a confession in this case from [his wife]. She states, this is mine, take me to jail.
She states it outright. Mr. Murrin moves a hat and he's taken to jail. The movement of the
hat with the statement that, it's mine, take me to jail, at the end of this, you'll be able to
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weigh those two acts and determine which one is more probative of the allegation of
possession."

Thus, Murrin's theory of defense was clearly that his wife owned the pipe and, therefore,
he could not and did not possess it on the date in question.

When viewed in the context of Murrin's theory of defense, it becomes clear that
the prosecutor's argument was directed at rebutting Murrin's assertions that his wife's
claim of ownership undermined the State's evidence of his possession. The prosecutor
was not misstating the law on possession. The fact that the prosecutor focused on some
elements of possession to the exclusion of others does not mean he misstated the law. He
still stated the correct law on possession at the beginning of his closing argument and
referred the jury back to the instructions, which clearly and fully stated the law on
possession.

Murrin has failed to show that the prosecutor committed prosecutorial error during
closing arguments by misstating the law of possession. The prosecutor's statements
relating to the law of possession were not misstatements and did not fall outside the wide
latitude afforded a prosecutor in attempting to obtain a conviction.

DID THE PROSECUTOR COMMIT REVERSIBLE PROSECUTORIAL ERROR BY STATING HIS
PERSONAL OPINION OF MURRIN'S GUILT?

Murrin asserts that the prosecutor committed reversible prosecutorial error when
he improperly expressed his personal opinion of Murrin's guilt. Murrin relies on State v.
Peppers, 294 Kan. 377, 399, 276 P.3d 148 (2012), in which our Supreme Court held that
prosecutors are prohibited from offering juries their personal opinions on the guilt or
innocence of defendants because such opinions are a form of unsworn testimony and not
commentary on the evidence. Prosecutors are not prohibited, however, from arguing that
the evidence demonstrates a defendant's guilt. 294 Kan. at 399. The court noted that
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certain statements regarding a defendant's guilt are allowed so long as they are
accompanied by a directional statement that "can 'best be characterized' as serving 'as an
opening for the prosecutor's upcoming summation of the evidence.' State v. Mann, 274
Kan. 670, 689, 56 P.3d 212 (2002)." Peppers, 294 Kan. at 399. "It is necessary . . . for a
prosecutor to say something akin to 'the evidence shows defendant's guilt' in order to
make a statement merely directional and not an expression of the prosecutor's personal
opinion." 294 Kan. at 400.

In Peppers, the court considered the following two statements challenged by the
defendant:

"'Now, when [Pepper's counsel] finishes up, I'm going to have an opportunity to come
talk to you again and when I do, I'm going to ask that you find this defendant, Antwan
Peppers, guilty of murder in the first degree and guilty of attempted murder in the first
degree. Why? Because he did it.'
. . . .
"'When you come back in after your deliberation after reviewing the evidence, you need
to come in, you need to look at the defendant, and you need to tell him he's guilty and
you need to look him in the eye and say you are guilty of murder and you are guilty of
attempted murder because he is.'" 294 Kan. at 399.

The court noted that the prosecutor failed to include any directional language that
may have made the statements permissible. Accordingly, the court held that the two
statements were impermissible expressions of the prosecutor's personal opinion of guilt.
294 Kan. at 400.

In State v. De La Torre, 300 Kan. 591, 612, 331 P.3d 815 (2014), our Supreme
Court revisited and applied the "'directional' statement" rule. In De La Torre, the
defendant challenged the prosecutor's following statement:

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"'I want to go over the elements of the case which the State is asking you to find
in this case in order to return a verdict of guilty.
"'What the State has to prove beyond a reasonable doubt, but not beyond all
doubt, just beyond a reasonable doubt, which is a burden we, of course, willingly and
gladly accept, and it should be that way. One, that the Defendant killed [Joselyn]. I don't
think there is any dispute about that. Two, that such killing was done while in the
commission of abuse of a child. I don't believe there is any dispute about that. And, that
this act occurred on or about the 6th day of September, 2009 in Ford County, Kansas. No
dispute about that.
"'Now, the elements of abuse of a child are you have to be able to find in order
for it to be in the commission of the felony of child abuse, that the Defendant
intentionally inflicted cruel and inhuman punishment upon [Joselyn], that [Joselyn] was a
child under the age of 18 years, and, that this act occurred between the 15th day of
August and the 6th day of September, 2009 in Ford County.
"'So, let's look to—first, to the facts of the case.'" 300 Kan. at 611.

The De La Torre court discussed the challenged statement:

"The statement here occupies a middle ground between the impermissible
opinion in Peppers and the permissible directional statement in Mann. It was made near
the beginning of the prosecutor's remarks and did not explicitly include directional
language cuing the jury that he would be offering reasons supporting the stated 'belief'
that there was no dispute the killing occurred 'in the commission of abuse of a child.' But
after reciting the elements along with the objected-to comments, he directed the jury
toward the facts, then discussed the evidence in the case at length, and bookended the
statement with reminders about the State's burden of proof and the jury's role in assessing
whether the State met that burden. He explained it was the State's burden to prove each
element beyond a reasonable doubt, and he concluded after discussing the evidence that it
was for the jury to determine whether the State had proven the element." 300 Kan. at 612.

The court held that the challenged statement was not improper. In holding that the
statement was not an impermissible statement of the prosecutor's personal opinion of
guilt, the court focused on the context of the argument that followed it. 300 Kan. at 612.
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Here, Murrin argues that the prosecutor's statements are akin to those made in
Peppers and are impermissible statements of the prosecutor's personal opinion of guilt.
The State, on the other hand, argues that the prosecutor's statements, when considered in
the context of the surrounding argument, are more like the statement in De La Torre, and,
thus, proper.

In reviewing the statements challenged by Murrin, we must consider the
statements in the context of the prosecutor's surrounding arguments. The prosecutor's
arguments are as follows with the challenged comments highlighted in italics:

"[Defense counsel] said that I was trying to convince you the act of concealment
implied ownership.
"Don't be mistaken, ladies and gentlemen, I'm not trying to imply ownership here
for anybody. The reason why, Jury Instruction No. 5 tells you what I must prove to prove
that Mr. Murrin possessed that [pipe], and you'll notice it doesn't say anything about
ownership. I only have to prove he possessed it.
"If his next door neighbor owned it and lent it to him, guess who would be
charged? Mr. Murrin, because it was in his possession. It seems odd maybe to us that the
law doesn't necessarily prohibit ownership, it prohibits possession. Doesn't matter who
owned it, and if we go back—let's assume for a second [Murrin's wife] did own this pipe,
it doesn't matter. [Murrin's wife] was not in possession of this pipe, ladies and gentlemen.
She was at work. She was not in possession of this pipe.
"This jury instruction says you must possess the pipe. It also gives you a little bit
of a definition of how the law defines possession. You can possess it exclusively, which
means you possess it all by yourself, or you can possess it jointly. You can possess it with
others. For all I know this may be [Murrin's wife's] and Mr. Murrin's pipe and maybe
they smoked it together, I don’t know. I don’t know who owned it, but I know who
possessed it at the time [the officer] went into that house and the person in possession of
it was Mr. Murrin.
"[Defense counsel] said the act of putting the hat over it is how—I'm asking you
to find that because of that, ownership, no—I'm not asking you to find ownership at all
because he put a hat over it, I'm here to tell you, ladies and gentlemen, if he'd never put a
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hat over it, but if it'd been out there in plain open sight with him in the living room when
[the officer] came in, I'd still be here today arguing this case for you, in front of you,
because guess what, he was the adult, only person in the house, other than very small
children, pipe is out in plain view of everyone. He possessed that pipe, ladies and
gentlemen.
"The fact he put the hat over it may indicate to you that he knew it was there and
didn't want the officer to see it, may indicate a lot of things, but his possession was
complete before he ever grabbed the hat, so I'd be here today even if there had been no
hat in this case, but I think you can evaluate, as a jury, it's up to you to decide what him
putting a hat on top of it trying to prevent a police officer from seeing it means, you can
decide what that means, that's your decision, not mine, but I think the hat is important to
show that he was aware of it, he knew it was illegal, he didn't want the police officer to
see it." (Emphases added.)

When read in the context of the surrounding argument, the prosecutor's challenged
statements are more De La Torre and less Peppers. The prosecutor was clearly
responding to Murrin's theory of defense that his wife's ownership somehow undermined
his alleged possession. Although the prosecutor did not employ a perfect directional
statement, such as "the evidence shows [Murrin's] guilt," he did open his argument by
directing the jury to the instruction on the law of possession. The prosecutor indicated
that the jury instruction on possession would tell it what the State was required to prove.
The jury instruction framed the prosecutor's argument. Murrin acknowledges that the
prosecutor discussed some of the evidence before making the challenged statements.
Finally, the prosecutor closed his argument by reminding the jury that the ultimate
decision of whether Murrin was guilty was its to make.

The context of the prosecutor's statements to the jury shows that they were not
impermissible statements of the prosecutor's personal opinion of guilt. Accordingly,
Murrin has failed to show that the prosecutor committed prosecutorial error during
closing arguments by improperly stating his personal opinion of Murrin's guilt. The
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prosecutor's statements did not fall outside the wide latitude afforded a prosecutor in
attempting to obtain a conviction.

Affirmed.