phalladar/case-regex

case-regex's Issues

Totally fake corpus -- more to come

20 Cal.App. 29
10 Cal 10

10 Colo.App. 45
4 Colo. App. 49

10 Del. 4
9 Del.Ch. 5

39 Ill. 59
95 Ill. 3d. 58
85 Ill. Dec. 55
8 Ill. App. 58
93 Ill. App. 5d 95

45 N.E. 58
58 N.E.2d 995

58 Idaho 58
92 Del.Cas. 48

57 Haw. 4589
59 Haw. App. 849

10 Cal.Supp.3d 10

1 Fla. Supp. 49
59 Fla.Supp.3d 58
45 Fla. 2d 58

14 Ga. 485
58 Ga.App 58
693 Ga. App. 5

10 U.S. App. D.C. 59
3 App. D.C. 589

10 Cal.3d 10
10 Cal. Unrep 10

10 Conn. 10
10 Conn.Supp. 10
10 Conn. L. Rptr 10
10 ConnLRptr 10
10 Conn.Super. Ct 10
10 10
10 10
10 10
10 10

10 Cal. Rptr. 2d 10
10 Cal. App. Supp. 49
19 Ark.App 49
59 Ark. 5
10 10
10 10
10 10

MA Test

Rivera's testimony that the substance he purchased on July 7 was "consistent with cocaine" was probative of the distribution charges. The judge did not, however, make a finding, prior to Rivera's testimony, that Rivera's experience permitted him to offer an opinion that the substance was "cocaine." See Commonwealth v. Dawson, supra (when police or drug-user witness testifies as to nature of substance, judge "will first have to make a finding" that witness's experience with drug would "permit him to give an opinion as to what drug a particular substance was;" qualified witness's "knowledge and competence" and "lack of training in chemical analysis, will bear on the weight to be given to his testimony"). See also note 17, supra. Moreover, "it would be a rare case in which a witness's statement that a particular substance looked like a controlled substance would alone be sufficient to support a conviction." Commonwealth v. Dawson, supra. See Commonwealth v. Melendez-Diaz, 76 Mass.App.Ct. 229, 233, 921 N.E.2d 108 (2010) (admission of drug certificates not harmless beyond reasonable doubt where "word `cocaine' frequently was used by the police, but at no time did the officers cite any objective evidence, criteria, or field tests; they did not articulate how their expertise permitted them to identify the substances as cocaine"); Cook v. United States, 362 F.2d 548, 549 (9th Cir.1966) (noting "judicially" that "whether or not a powder or substance is a narcotic cannot be determined by mere inspection of its outward appearance").

    Mistaken identification of cocaine by trained and experienced law enforcement personnel is not unknown in the annals of our law. See, e.g., Commonwealth v. LaVelle, 414 Mass. 146, 148, 605 N.E.2d 852 (1993) (undercover informant purchased substance police detectives "presumed to be cocaine" but that laboratory test proved was another substance); Care & Protection of Frank, 409 Mass. 492, 495-496, 567 N.E.2d 214 (1991) (police seized powdery substance from mother that they believed was cocaine but that laboratory tests proved

[456 Mass. 366]

394 Mass. App. Ct. 49
48 Mass. App. Div. 48
85 Mass.Supp. 4898
48 Mass.App.Dec. 4

was another substance). Cf. Commonwealth v. Scott, 428 Mass. 362, 363, 701 N.E.2d 629 (1998) (defendant sold "bag which purportedly contained cocaine but actually contained baking soda"). See also G.L. c. 94C, § 32G (prohibiting possession with intent to distribute counterfeit substance).18

    As to the substance seized from the defendant's apartment on October 20, 2005, the drug certificate for that was introduced through Trooper Colon, about whose specific experience and training in investigating the distribution of narcotics or in identifying substances as narcotics, if any, there was no testimony. Cf. Commonwealth v. Dawson, supra. The drug certificate identifying the substance as cocaine was the only evidence pertaining to

[923 N.E.2d 538]

the substance's chemical nature.19 On this record we cannot say that the drug certificates had no effect on the fact-finding judge, and did not contribute to the verdicts.

    To be sure, in addition to the drug certificates, other evidence tied the defendant to wrongdoing of some sort, specifically drug dealing. The doors to the defendant's apartment, as multiple officers testified, were barricaded, and before the October 18 purchase there were several men hovering on the stairs of the building who asked Rivera his purpose before permitting him to proceed to the fourth floor. Evidence seized from 284 Dwight Street Extension included a scale, rubber bands, a substantial amount of cash, sandwich bags, and a walkie-talkie—all relevant on the issue of distribution. But none of this properly admitted evidence established that the substances purchased and seized were "cocaine,"

[456 Mass. 367]

as the indictments charged.20 See, e.g., Commonwealth v. Soares, 384 Mass. 149, 152-153 n. 4, 156, 424 N.E.2d 221 (1981) (discussing evidence that defendant was conspirator in alleged drug distribution operation, and noting in passing that police seized in certain residence, among other things, plastic bag, large sum of money, bills, scale, and package of white powder identified by laboratory analysis as methamphetamine). This is not a case where the facts independent of the drug certificates overwhelmingly prove the nature of the substances sold to the undercover police or recovered from the defendant's apartment. Contrast Commonwealth v. Doherty, 411 Mass. 95, 102, 578 N.E.2d 411 (1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1169, 117 L.Ed.2d 415 (1992), quoting Francis v. Franklin, 471 U.S. 307, 325-326, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (erroneous intent instruction harmless beyond reasonable doubt where "principals' intent was not in dispute" because facts "`overwhelmingly preclude[d]' the absence of an intent to kill" on part of principals). Cf. Commonwealth v. Depina, 456 Mass. 238, 249-250, 922 N.E.2d 778 (2010). To conclude, as the dissent is willing to do, 456 Mass. at 373, 923 N.E.2d at 542-43 (Cordy, J., dissenting in part and concurring in part), that the only direct evidence that the white powder purchased or seized was cocaine, namely, uncontroverted scientific evidence that the Legislature has declared to be prima facie proof that the powder is cocaine, see G.L. c. 22C, § 39, meant little or nothing to the fact finder would turn the harmless error standard on its head. To reach such a conclusion beyond a reasonable doubt in this case would eviscerate the standard altogether.

Cal Test

isdemeanor count of resisting, delaying, or obstructing an officer (Pen.Code, § 148, subd. (a)(1)). The trial court imposed the midterm sentence of two years' imprisonment for the felony, and a six-month term for the misdemeanor to be served concurrently with the felony sentence.

    Defendant filed a timely notice of appeal, and the Court of Appeal appointed counsel to represent him. Appointed counsel, having found no arguable issue in his own review of the record, filed a brief pursuant to Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, setting forth the facts of the case and requesting that the appellate court review the entire record on appeal. The brief indicated that counsel would provide further briefing if requested by the court, but raised no specific issue. Both counsel and the Court of Appeal advised defendant of his right to file a supplemental brief to bring to the court's attention any issue he believed deserved review. Defendant filed a letter in the Court of Appeal setting forth 15 points for the court's consideration.

    We set forth in its entirety the opinion rendered by the Court of Appeal:

[51 Cal.Rptr.3d 102]

    "Following a jury trial, defendant was found guilty of one felony count of driving under the influence of alcohol with a felony prior within 10 years [citation; fn. omitted], and one misdemeanor count of resisting, delaying, or obstructing an officer [citation]. As to count one, the jury found true the allegation that defendant willfully refused a peace officer's request to submit to chemical test [citation].

    "We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the case and the facts, but raised no specific issues. Defense counsel requested we review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.

    "We notified defendant of his right to submit written argument on his own behalf within 30 days. We have read and considered defendant's written argument.

    "Pursuant to People v. Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.

"Disposition

    "The judgment is affirmed."

    Defendant then filed, in propria persona, a petition in this court seeking review of the judgment rendered by the Court of Appeal, based on its failure to address the contentions set forth in his supplemental brief. We granted defendant's petition, appointed new counsel to represent him, and limited briefing and argument to the issue of what is required of the Court of Appeal in this context under article VI, section 14, of the California Constitution.

II.

    In order to construe present article VI, section 14 of the California Constitution, we first review the history of that provision. The California Constitution of 1849 established a Supreme Court consisting of a Chief Justice and two associate justices, and granted the court appellate jurisdiction in a variety of cases. (Cal. Const, of 1849, art. VI, §§ 1, 2, 4.) Amendments to the Constitution in 1862 expanded the court's membership to include a Chief Justice and four associate justices, and described a wider range of cases in which the court had appellate jurisdiction. (Id., art. VI, §§ 2, 4, as amended in 1862.) As amended, the Constitution continued to require the Legislature to provide for publication of the court's decisions as the Legislature deemed expedient (id., art. VI, § 12), but did not impose any requirement upon the court to provide reasons for its decisions.

    In 1854, the Legislature enacted a statute requiring that "[a]ll decisions given upon an appeal in any appella[te] Court of this State, shall be given in writing, with the reason therefor, and filed with the Clerk of the Court." (Stats.1854, ch. 54, § 69, p. 72.) This court held in Houston v. Williams (1859) 13 Cal. 24, 1859 WL 939 (Houston) that the Legislature was without authority to require the judicial branch to provide reasons for its decisions in written opinions. "The Legislature can no more require this Court to state the reasons of its decisions, than this Court can require, for the validity of the statutes, that the Legislature shall accompany them with the reasons for their enactment. The principles of law settled are to be extracted from the records of the cases in which the decisions are rendered. The reports are full of adjudged cases, in which opinions were never delivered. The facts are stated by the Reporter, with the points arising thereon, and are followed by the judgments rendered, and yet no one ever doubted that the Courts, in the instances

[51 Cal.Rptr.3d 103]

mentioned, were discharging their entire constitutional obligations. [Citations.]" (Id. at p. 25.)

    The decision in Houston, supra, 13 Cal. 24, acknowledged that the reasons underlying the court's judgments are "of great importance in the information they impart as to the principles of law which govern the Court, and should guide litigants." (Id. at p. 26.) It added that "right-minded Judges, in important cases—when the pressure of other business will permit— will give such opinions. It is not every case, however, which will justify the expenditure of time necessary to write an opinion. Many cases involve no new principles, and are appealed only for delay. It can serve no purpose of public good to repeat elementary principles of law which have never been questioned for centuries." (Ibid.)

    By the time the state's second Constitutional Convention was convened in 1878, the Supreme Court's workload was overwhelming. There was no provision in either the original 1849 Constitution or the amendments of 1862 for intermediate courts of appeal—all appeals from the "district courts," as the trial courts of general jurisdiction were called, went directly to the Supreme Court. During the four years preceding the Constitutional Convention of 1878-1879, the court had elected not to provide a written opinion in nearly one quarter of the more than 2,200 cases it decided. (2 Willis & Stockton, Debates and Proceedings, Cal. Const. Convention 1878-1879, p. 950 (Willis & Stockton).)

    Although the court's decision in Houston asserted that no court with "the least respect for its own dignity and independence" could acknowledge a legislative power to require written reasons for the court's opinion (Houston, supra, 13 Cal. at p. 25), the delegates to the 1878-1879 Constitutional Convention concluded that such a requirement should be imposed by the Constitution itself. The convention's Committee on Judiciary and Judicial Department (Committee) proposed changes to address both the court's burgeoning caseload and its practice of deciding cases without written opinion. With some modifications, the Committee's proposals thereafter were adopted by the delegates and subsequently by the electorate as part of article VI of the Constitution of 1879.

    In order to increase the court's capacity to decide cases, the Committee proposed a seven-member court with two departments, each comprised of three associate justices. (2 Willis & Stockton, supra, at p. 392.) Under the proposal, each department would have "the power to hear and determine causes and all questions arising therein, subject to the provisions hereinafter contained in relation to the Court in bank." (Ibid.) That same provision specified that the presence of three Justices would be required "to transact any business in either of the departments, except as may be done at chambers, and the concurrence of three Justices shall be necessary to pronounce a judgment. The Chief Justice shall apportion the business to the departments, and may, in his discretion, order any cause pending before the Court to be heard and decided by the Court in bank." (Ibid.) Finally, the proposed new article VI also included a provision concerning the court's opinions: "In the determination of causes, all decisions of the Court in bank or in departments shall be given in writing, and the grounds of the decision shall be stated." (Ibid.)

    At the Constitutional Convention at which these new provisions were proposed, delegate Samuel Wilson spoke concerning "the reasons which have impelled the majority of the Committee on Judiciary to recommend section two for adoption by the Convention as the new judicial system, as

[51 Cal.Rptr.3d 104]

far as the Supreme Court is concerned." (2 Willis & Stockton, supra, at p. 950.) He explained that the five-member court "has been unable to fully dispatch the business before it." (Ibid.) He noted that the court had decided 2,242 cases during the preceding four years, "[b]ut in order to enable the Court to accomplish that work, it had to decide five hundred and fifty-nine cases without giving any opinion in writing. If it is proper and right that a Court of last resort should deliver opinions in writing, giving the reasons for its decisions, we have it demonstrated that the Court, as heretofore constituted and organized, could not possibly perform its duties, for it could not have rendered that number of decisions and have delivered written opinions upon them. The importance of requiring the Court to give written opinions cannot be overrated. They not only become the settled law of the State, and are precedents for subsequent cases, but in many causes where the litigation is not ended by the decision of the Supreme Court, and new trials are consequent upon a reversal, the decision of the Supreme Court should be given in writing, and reasons assigned, for they are instructions to the Court below, and are the controlling rule in the subsequent litigation." (Ibid.)

    Delegate Wilson continued: "Any gentleman who has practiced in the Supreme Court knows that cases have been sent back for new trial, without written opinions, and the Courts below have been unable to ascertain the full views of the appellate Court upon the case. Four or five points may be presented. The Supreme Court may reverse the case and send it back for a new trial upon some one of these points, but upon which point the lawyers are unable to say—whether on five points or on one. The result is that the new trial in the Court below takes place without any light from above, and the case may be appealed a second time, and again reversed upon some one of the same points, and so, ad infinitum; whereas, if a written opinion were rendered, it might end the case without a second appeal. That practice shows the inefficiency of any system where written opinions are not required, and everywhere throughout the United States the courts are required to deliver written opinions, stating the grounds of the decision, as we have provided in this section. Undoubtedly it will insure a careful examination of the cases, and result in well considered opinions, because they must come before the jurists of the country and be subjected to the severest criticism. I think every lawyer will agree with me, that in every case there should be an opinion in writing. It tends to purity and honesty in the administration of justice." (2 Willis & Stockton, supra, at p. 951.)

    Mr. Wilson reiterated that the recommended appellate system would "enable the Court to ... write opinions on all of the cases," but acknowledged: "Of course, there will always be some cases disposed of without written opinions. Sometimes a case goes off on some formal motion, or is dismissed on a technical question of practice. But I am speaking generally, of cases argued and submitted upon their merits, and there the decision is of little account as settling the law, unless the Court gives its reasons for the decision in writing." (2 Willis & Stockton, supra, at p. 951.)

    Opposition to the Committee's proposal focused on the power that the restructuring of the court into two departments would give to the Chief Justice to control which justices decided particular cases. All competing proposals included the Committee's requirement that decisions be in writing with reasons stated, except one proposal that simply would have retained the existing provisions of the Constitution of

[51 Cal.Rptr.3d 105]

1849, as amended in 1862. No opposition to the requirement of a written opinion was expressed during the debates. (3 Willis & Stockton, supra, at pp. 1331-1333, 1447-1448, 1454-1457, 1499.) In responding to alternative proposals concerning the structure of the court, Mr. Wilson focused on the asserted "utter inability of the Supreme Court to decide the cases, and keep up with the calendar, and write opinions ...." (3 Willis & Stockton, supra, at p. 1455.)

    In further support of his proposal, delegate Wilson continued: "Now, everybody knows who has reflected at all upon this subject, or knows anything at all about it, that opinions must be written by a Court of last resort as matters of precedent. It is a very different thing from sitting down and saying that the judgment of the Court below is reversed or affirmed without giving any reasons, because when that is published, nobody knows whether that decision is right or wrong. But when the Judge has to sit down and write an opinion, or, in the language of this amendment reported by us, that they must give their opinion in writing, stating the grounds of the decision, then they are brought before the whole bar of the State, and they are bound to present themselves in a position where law and reason sustain the adjudication. Consequently it is the universal practice in the Courts of last resort in the States, and the Supreme Court of the United States, to render opinions addressing themselves to the intelligent judgment of the bar of the State or of the country, and of the Judges of the country." (3 Willis & Stockton, supra, at p. 1455.)

    Delegate Clitus Barbour, whose competing proposal also would have required opinions in writing with reasons stated, offered the following comments in that respect: "Now, when we require them to state the reasons for a decision, we do not mean they shall write a hundred pages of detail. We [do] not mean that they shall include the small cases, and impose on the country all this fine judicial literature, for the Lord knows we have got enough of that already. To give us the reason for it does not take three lines. I maintain that there is hardly a single case, many points as may be made, that cannot be cleared up, and reasons given in five pages. Many of the decisions now in the reports contain thirty pages. Let them write short opinions in all cases, and I contend that it will not be difficult for them to write up all the decisions of the Court." (3 Willis & Stockton, supra, at pp. 1455-1456.)

    Thereafter, article VI, section 2, was adopted by the Constitutional Convention delegates and subsequently approved by the electorate. It provided for two departments within the Supreme Court, and required that "[i]n the determination of causes, all decisions of the Court in bank or in department shall be given in writing, and the grounds of the decision shall be stated." (Cal. Const., art. VI, § 2, as adopted 1879.)

    Despite the efforts of the delegates to ease the burden on the Supreme Court by providing for decisions to be rendered by three-justice panels in departments, the court's workload and backlog increased in the ensuing two decades until finally, in 1903, the Legislature proposed a constitutional amendment to add an intermediate Court of Appeal comprised of three appellate districts, each with a three-justice District Court of Appeal. The proposal was approved by the voters in 1904, and included a provision that "[i]n the determination of causes, all decisions of the Supreme Court and of the District Courts of Appeal shall be given in writing, and the grounds of the decision shall be stated." (Cal. Const., former art. VI, § 24, as amended Nov. 8,1904, repealed Nov. 8,1966.)

[51 Cal.Rptr.3d 106]

    As a result of the 1966 repeal and reenactment of article VI of the California Constitution, the requirement of opinions in writing is now found in article VI, section 14, and reads: "Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated." There is no indication in the background materials prepared in the 1960's for the members of the California Constitution Revision Commission committee that was responsible for proposed revisions to article VI, or elsewhere, that any change in substance was intended with respect to the new wording of the "in writing" requirement.1

    From this history, we discern a variety of purposes in the requirement that appellate decisions be in writing. Of course, some decisions establish precedent for future cases. Others provide guidance only to the parties and to the judiciary in subsequent litigation arising out of the same "cause." In all instances, the requirement of a written opinion promotes a careful examination of the facts and the legal issues, and a result supported by law and reason.

III.

    To evaluate the relevance and function of written decisions in the context of Wende appeals, we next review the constitutional underpinnings of the requirement of independent judicial review in such appeals, and the nature of the review required by Wende.

    The federal Constitution does not require a state to afford appellate review of a judgment of conviction (McKane v. Durston (1894) 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867), but every state has chosen to provide a right of appeal in criminal cases. (In re Sade C. (1996) 13 Cal.4th 952, 966, 55 Cal.Rptr.2d 771, 920 P.2d 716; Pen.Code, § 1237.2) Having provided

[51 Cal.Rptr.3d 107]

criminal defendants with an appeal as a matter of right, the states must provide indigent defendants with the assistance of counsel on appeal, "[f]or there can be no equal justice where the kind of an appeal a man enjoys `depends on the amount of money he has.' [Citation.]" (Douglas v. California (1963) 372 U.S. 353, 355, 83 S.Ct. 814, 9 L.Ed.2d 811.)

    The right of an indigent defendant to appellate counsel gave rise to the issue considered in Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (Anders): "the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." (Id. at p. 739.) Anders explained that "[t]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.... Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." (Id. at p. 744, 87 S.Ct. 1396.)

    Our decision in Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, approved a modified procedure to ensure an indigent criminal defendant's right to effective assistance of counsel. In Wende, the defendant's appointed counsel filed a brief summarizing the proceedings and the facts with citations to the record, raised no specific issues, and called upon the appellate court to review the entire record in order to determine whether there was any arguable issue. Counsel also advised his client of the nature of the brief and informed the defendant that he would be allowed to file a brief on his own behalf. Counsel did not assert that the appeal was frivolous, nor did he request to withdraw, but he did state his intention to advise his client that he could move to have counsel relieved. The defendant did not file a brief.

    This court's decision in Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, interpreted Anders to require the appellate court "to conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues or describes the appeal as frivolous. This obligation is triggered by the receipt of such a brief from counsel and does not depend on the subsequent receipt of a brief from the defendant personally." (Wende, supra, 25 Cal.3d at pp. 441-42, 158 Cal.Rptr. 839, 600 P.2d 1071.) The court "recognize[d] that under this rule counsel may ultimately be able to secure a more complete review for his client when he cannot find any arguable issues than

[51 Cal.Rptr.3d 108]

when he raises specific issues, for a review of the entire record is not necessarily required in the latter situation. [Citations.]" (Id. at 442, 158 Cal.Rptr. 839, 600 P.2d 1071.) Finally, the decision in Wende concluded that "counsel may properly remain in the case so long as he has not described the appeal as frivolous and has informed the defendant that he may request the court to have counsel relieved if he so desires." (Ibid.)

    The United States Supreme Court approved this court's Wende procedure in Smith v. Robbins (2000) 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (Robbins). In the course of its analysis, Robbins identified four ways in which the Wende procedure is superior to other approaches that have been disapproved. First, Wende "requires both counsel and the court to find the appeal to be lacking in arguable issues, which is to say, frivolous." (Id. at p. 280, 120 S.Ct. 746.) Second, "the court orders briefing if it finds arguable issues." (Ibid.) Third, "[c]ounsel's summary of the case's procedural and factual history with citations to the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case." (Id. at p. 281, 120 S.Ct. 746.) Fourth, the Wende procedure requires two tiers of review, by counsel and by the appellate court. (Ibid.)

    In Robbins the court further concluded that the Wende procedure is in some ways superior to Wisconsin's procedure, which the high court found valid in McCoy v. Wisconsin (1988) 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440. Wisconsin's Rules of Appellate Procedure require counsel to file a brief referring to parts of the record that arguably support the appeal and to discuss why the identified issue lacks merit. Wende, the high court observed, "requires a more thorough treatment of the record by both counsel and the court" than do Wisconsin's rules. (Robbins, supra, 528 U.S. at p. 283, 120 S.Ct. 746.) The high court also observed that Wisconsin's procedure "might divert the court's attention from more meritorious unmentioned issues ... [and] may predispose the court to reach the same conclusions [as counsel]. The Wende procedure reduces these risks, by omitting from the brief [those] signals that may subtly undermine the independence and thoroughness of the second review of an indigent's case." (Id. at p. 284, 120 S.Ct. 746.)

    In summary, the constitutional right to assistance of counsel entitles an indigent defendant to independent review by the Court of Appeal when counsel is unable to identify any arguable issue on appeal. California's procedure for securing this right requires counsel to file a brief summarizing the proceedings and the facts with citations to the record, and requires the appellate court to review the entire record to determine whether there is any arguable issue. The high court's decision in Robbins—validating California's procedure—highlights the importance of the appellate court's responsibility in Wende appeals to perform a thorough review of the record.

IV.

    The independent judicial review mandated by Anders, supra, 386 U.S. 738, 87 S.Ct. 1396, applies only to a defendant's first appeal as of right. (Pennsylvania v. Finley (1987) 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539; In re Sade C. (1996) 13 Cal.4th 952, 972-974, 55 Cal.Rptr.2d 771, 920 P.2d 716.) The right to a direct appeal of a final judgment gives rise to a "cause" within the meaning of California Constitution article VI, section 14. (See Powers v. City of Richmond (1995) 10 Cal.4th 85, 91, fn. 1, 40 Cal.Rptr.2d 839,

[51 Cal.Rptr.3d 109]

893 P.2d 1160 [right to "direct appeal" affords right to oral argument and written decision on the merits]; id. at p. 141, 40 Cal.Rptr.2d 839, 893 P.2d 1160 (dis. opn. by Lucas, C.J.) [resolution of an appeal determines a "cause" within the meaning of the "in writing" provision]; People v. Medina (1972) 6 Cal.3d 484, 489-90, 99 Cal.Rptr. 630, 492 P.2d 686 [important incident of right to appeal from a superior court's judgment is the right to a written opinion pursuant to Cal. Const, art. VI, § 14].) Therefore, when a Court of Appeal affirms a judgment in a Wende appeal, it is disposing of a "cause" within the meaning of article VI, section 14 of the California Constitution, and must do so "in writing with reasons stated." (Cal. Const., art. VI, § 14.)

    The Court of Appeal disposed of defendant's cause in writing, but stated only that "there are no arguable issues"— it did not expressly address (or even describe) defendant's contentions. Both Anders, supra, 386 U.S. 738, 744, 87 S.Ct. 1396, and Wende, supra, 25 Cal.3d 436, 440, 158 Cal.Rptr. 839, 600 P.2d 1071, recognize the defendant's right in a Wende appeal to file supplemental contentions. This right stands in contrast to the general rule that a represented defendant has no right personally to present supplemental arguments. (In re Barnett (2003) 31 Cal.4th 466, 469, 3 Cal.Rptr.3d 108, 73 P.3d 1106.) Therefore, when a Court of Appeal affirms a judgment in a Wende appeal in which the defendant has filed supplemental contentions, the appellate court necessarily must have considered and rejected those contentions. In accordance with the constitutional requirement of "reasons stated," such an opinion must reflect the contentions and the reasons that they fail, just as the opinion would reflect these points if they were raised by counsel.

    Although the written decision in a Wende appeal typically will not be certified for publication in the Official Reports and thus will not establish precedent for future cases, it will serve the other significant purposes identified in the constitutional debates—(1) providing guidance to the parties and the judiciary in subsequent litigation arising out of the same "cause," and (2) promoting a careful examination of each case and a result supported by law and reason. Having devoted its resources to reviewing the entire appellate record, the Court of Appeal is well positioned to forestall the unnecessary expenditure of additional judicial resources by gathering and setting forth in its opinion the bare information necessary for other courts to recognize which contentions asserted by the defendant have been considered and found lacking in arguable merit and which were considered unreviewable due to an inadequate record. Brief written reasons for the appellate court's decision also may assist federal courts, which otherwise would be unable to determine whether claims have been exhausted in the state courts. Finally, the appellate court's explanation of why the defendant's contentions fail may, in some circumstances, persuade the defendant that counsel's conclusions are correct and thus prompt the defendant to abandon his or her efforts to obtain further judicial review.3

[51 Cal.Rptr.3d 110]

    A written decision does not require an extended discussion of legal principles. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232 1262, 82 Cal.Rptr.2d 85, 970 P.2d 872 [a written decision is a statement of conclusions and of principal reasons; an opinion sufficiently states reasons if it sets forth grounds or principles]; People v. Rojas (1981) 118 Cal.App.3d 278, 289, 174 Cal.Rptr. 91 [brief written decision stating only essential facts and deciding only essential legal issues is adequate].) Moreover, a recitation of each of the defendant's assertions will not be necessary in all cases; the purposes of the constitutional requirement may in some circumstances be satisfied by a summary description of the contentions made and the reasons they fail. In order to serve the purpose of providing information sufficient to determine the scope of the contentions raised and resolved, however, the written decision must disclose whether the contentions failed on the merits or for some other specified reasons. In doing so, the opinion enables the defendant to learn, and the courts in subsequent proceedings to determine, whether particular contentions are subject to any procedural bar. (See, e.g., In re Waltreus (1965) 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001 [arguments raised and rejected on appeal may not be raised again through habeas corpus proceeding]; In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513 ["writ [of habeas corpus] will not he where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction"].)4

[51 Cal.Rptr.3d 111]

    The constitutional requirement that an appellate court state reasons for its decision does not require the inclusion of information or analysis beyond that necessary to apprise the reader of the contention considered and the reasons underlying that court's conclusion that the contention fails. The constitutional language itself refers only to the provision of "reasons," and the constitutional debates of 1878-1879 focused on the purpose of requiring a reasoned basis for the judgment rendered by an appellate court. When this mandate was added to our Constitution, there was no intermediate Court of Appeal, no Anders or Wende review, and far less habeas corpus litigation. The delegates thus had no reason to propose further requirements in connection with appellate opinions.

    In light of the subsequent evolution of the law and the appellate court system, an opinion rendered by the Court of Appeal has come to serve additional purposes. In connection with a petition for review, the intermediate appellate court's opinion informs this court of the nature of the case as well as the contentions considered. The opinion also may be a significant source of information in future collateral proceedings in which only a limited record is provided. A brief description of the facts and procedural history of the well as the crimes of which the defendant was convicted and the punishment imposed, will allow any court in a subsequent proceeding to focus more quickly on the contentions without having to expend resources gathering and reviewing the record to apprise itself of this information. A synopsis of the case will be particularly helpful when the defendant, as is frequently the situation,5 pursues challenges in propria persona, after providing an incomplete or confused description of the prior proceeding.

    Because the Court of Appeal in a Wende proceeding is required to review the entire record, it must perform the essential tasks necessary to gather the relevant facts, and it appears that summarizing this basic information in its written opinion will add little to the burden imposed upon the appellate court.6 This is particularly so because,

[51 Cal.Rptr.3d 112]

Kan Test

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,

    [256 P.3d 805]

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.

    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, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), if such a constitutional right is implicated.

    [292 Kan. 542] 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, 87 S.Ct. 1283, 18 L.Ed.2d 241 (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 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, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), provide the tools for this assessment.



    [256 P.3d 806]

     9. [292 Kan. 543] 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, 87 S.Ct. 1283, 18 L.Ed.2d 241 (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.

    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.

    [292 Kan. 544] 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.

    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, 87 S.Ct. 1283, 18 L.Ed.2d 241 (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.

    [256 P.3d 807]

32, secs. 5, 64); two counts of conspiracy to commit the sale or delivery of cocaine within 1,000 feet of a school ([292 Kan. 545] 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.

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 [292 Kan. 546] 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.

    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

    [256 P.3d 808]

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. [292 Kan. 547] 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.

    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 [292 Kan. 548] 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.

    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

    [256 P.3d 809]

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.

    [292 Kan. 549] 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 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.

    [292 Kan. 550] 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

    [256 P.3d 810]

a mistrial. White, 284 Kan. at 343, 161 P.3d 208.

     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 (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, 238 P.3d 266 (conduct of witness in allegedly stealing an offered exhibit from witness stand); Foster, 290 Kan. at 718–21, 233 P.3d 265 (conduct of bystander in crying during victim's testimony); White, 284 Kan. at 340–44, 161 P.3d 208 (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).

    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, 238 P.3d 266; White, 284 Kan. at 343–44, 161 P.3d 208; 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,[292 Kan. 552] 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, 888 P.2d 845. 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.) 39 Kan.App. 2d 495
   
   
   
   [256 P.3d 811]
   
    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, 888 P.2d 845, cites to State v. Mitchell, 220 Kan. 700, 703, 556 P.2d 874 [1976], and Dixon, 289 Kan. at 55, 209 P.3d 675, 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, 523 P.2d 397, 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] ).
   

   [292 Kan. 553] 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, 238 P.3d 266, 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 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.
   

2. 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, 523 P.2d 397; 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).
   
   [292 Kan. 554] 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, 66 S.Ct. 1239. 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, 66 S.Ct. 1239. The Court then concluded that an error “affected the defendant's
   
   [256 P.3d 812]
   

substantial rights” if it had a “substantial and injurious effect or influence in determining the jury's verdict.” Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239.

    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, 66 S.Ct. 1239 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

    [292 Kan. 555] “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, 119 P. 552.

    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 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: