In State of Kansas v. Nye, --- P.3d ----, 2011 WL 3209855 (Kan.App.) the court was asked to decide whether a prosecutors comments about a refusal to submit crossed the threshold from fair comment on consciousness of guilt, into the improper area of shifting the burden to defendant to prove his innocence. The appeals court wrote:
"As a general rule, a prosecutor's comments in closing argument on the defendant's refusal to take a breath test, including the inference of intoxication that may be drawn from the evidence, are within the wide latitude that a prosecutor is allowed in discussing the evidence. Nevertheless, we perceive a distinction between the prosecutor's comments herein and those comments approved by this court in Wahweotten. We are particularly concerned with the following comments made by the prosecutor herein:
“We all know the result will be incriminating if he had taken it [the breath test]. Why is he now saying he's not guilty? He knew back then, 1st of February, 2009. Now he's saying he's not guilty. Does that make any sense to you?
....
“... The defendant is guilty. He knows it.”
We find that these comments go beyond a prosecutor's fair argument that intoxication may be inferred from the defendant's refusal to take a breath test. Nye's refusal to take the breath test does not justify the prosecutor's comment that Nye “knew back then” that he was guilty, and “[h]e knows it” now. We believe these particular comments crossed the line and placed a burden on Nye to take the breath test to prove his innocence. Moreover, the prosecutor's comments impugned Nye's right to contest the DUI charge and request a jury trial."
Nevertheless, the appeals court found this error, as well as several other improper comments, harmless. Save this case for your motion in limine.
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