State v. Cherry: COVID‑19 Delays Weighed Neutrally in Barker Analysis; Trial Judges Have Discretion Over the Duration of Displaying Admitted Exhibits

Court: Supreme Court of Kansas

Date: July 18, 2025

Docket No.: 127,038

Disposition: Convictions affirmed

Introduction

In State v. Cherry, the Kansas Supreme Court affirmed the convictions of Raymond Cherry for first-degree murder (felony murder), aggravated robbery, conspiracy to commit aggravated robbery, aggravated assault, and criminal possession of a firearm by a convicted felon. The case arose from a 2019 marijuana transaction in which a planned robbery by Cherry and an accomplice escalated into a fatal shooting. Cherry’s defense was mistaken identity; he denied being present at the apartment and challenged the State’s proof tying him to the shooting.

On appeal, Cherry raised five principal issues: alleged prosecutorial error in “we know” statements during closing, the State’s lengthy display of graphic blood-spatter photographs, a limitation on defense questioning of a witness (“Beth”) in violation of the right to present a defense, acceptance of a stipulation to a prior felony without an on-the-record jury-trial waiver, and a constitutional speedy-trial claim focused on pandemic-era delays.

The opinion is notable for two clarifications with forward-looking impact: (1) it expressly treats COVID‑19 related trial delays as a neutral consideration under the “reason for delay” prong of the Barker v. Wingo speedy-trial analysis, and (2) it holds, as a matter of first impression, that the amount of time a party is permitted to display admitted evidence during testimony lies within the trial court’s broad discretion to control proceedings.

Summary of the Opinion

• Prosecutorial error: The Court held three of the prosecutor’s four “we know” remarks were improper because they opined on controverted facts, particularly the shooter’s identity. One remark, tied to uncontroverted facts, was not error. All errors were harmless in light of overwhelming corroborating evidence. The Court again cautioned prosecutors against “we know” usage, noting recent reversals in other cases.
• Display of photographs: As an issue of first impression, the Court held that the duration of displaying admitted exhibits is entrusted to the trial judge’s discretion in managing proceedings. No abuse of discretion occurred.
• Right to present a defense / Proffers: The Court ruled the defense failed to preserve a challenge to the exclusion of Beth’s testimony about a video because counsel did not proffer the substance as required by K.S.A. 60‑405; thus, no appellate review.
• Stipulation without jury-trial waiver: Accepting a stipulation to an element (prior felony) without securing a knowing jury-trial waiver is constitutional error, but it was harmless beyond a reasonable doubt given defense strategy and the record.
• Cumulative error: Even aggregating the prosecutorial and waiver errors, the Court found no reasonable possibility of a different verdict.
• Speedy trial: The Court extended its neutral treatment of pandemic delays to Barker’s second factor (reason for delay), weighing COVID‑19 delays neutrally. Considering all factors—including Cherry’s late assertion and lack of prejudice—there was no speedy-trial violation.

Detailed Analysis

I. Prosecutorial Error: “We know” Statements

Precedents Cited and Their Influence

• State v. Alfaro-Valleda, 314 Kan. 526 (2022): The Court reaffirmed that a prosecutor errs by using “we know” to draw inferences on controverted matters; the phrase conveys the prosecutor’s opinion and invades the jury’s role, even when the inference is reasonable. Exception: statements tied to uncontroverted facts.
• State v. Brown, 316 Kan. 154 (2022); State v. Douglas, 313 Kan. 704 (2021); State v. King, 308 Kan. 16 (2018): These cases establish the limits of advocacy—prosecutors may argue reasonable inferences but may not express personal opinions on guilt or credibility.
• Two-step error analysis: The Court applied the Sieg/Slusser framework: (1) error; (2) prejudice under constitutional harmless-error review. See State v. Sieg, 315 Kan. 526 (2022); State v. Slusser, 317 Kan. 174 (2023).
• Harmlessness standard: Sherman and Fraire confirm Chapman’s standard—error is harmless if the State shows beyond a reasonable doubt there is no reasonable possibility the error contributed to the verdict. State v. Sherman, 305 Kan. 88 (2016); State v. Fraire, 312 Kan. 786 (2021).
• State v. Barnes, 320 Kan. 147 (2025): Clarifies that “we know” is not error when referencing uncontroverted facts or merely framing the issues; distinguishes from using “we know” to resolve the central dispute (identity).
• State v. Blevins, 313 Kan. 413 (2021): Cumulative-error principles, placing on the State the burden to show harmlessness beyond a reasonable doubt.
• State v. Wash, 320 Kan. ___, 2025 WL 1779068 (2025): The Court flags that “we know” errors have now resulted in reversal in another case, underscoring escalating consequences if prosecutors persist with this rhetoric.

Application and Legal Reasoning

• Not error: The prosecutor’s first “we know” statement referred to Hicks and Jane making a convenience-store stop and Hicks wearing a red hoodie—facts corroborated by video and not disputed by Cherry. Because the statement anchored on uncontroverted evidence, it fell within permissible advocacy.
• Error: The remaining three statements—including rhetorical questions (“How do we know it was Ray Cherry?”) and reliance on Robin’s in-court identification—opined on the ultimate contested fact: the shooter’s identity. The Court rejected the contention that phrasing as a question eliminates error; content matters.
• Harmless error: Despite error, the State’s case was amply corroborated—video, physical evidence (DNA on the cigarillo, fingerprints, recovery of the gun and hoodie), consistent eyewitness accounts, and Cherry’s own inconsistent statements and call deletions. The Court concluded beyond a reasonable doubt that the errors did not affect the verdict.
• Warning: The Court reiterated that prosecutors are “gambling” by employing “we know” when facts are controverted; cumulative effects can trigger reversal, as the Court noted has already occurred in Wash.

II. Length of Displaying Admitted Photographs: Trial Court Discretion (Issue of First Impression)

Precedents and Doctrinal Foundations

• Trial management discretion: State v. Turner, 318 Kan. 162 (2024); State v. Kahler, 307 Kan. 374 (2018); State v. Hudgins, 301 Kan. 629 (2015); State v. Rochelle, 297 Kan. 32 (2013) emphasize the trial judge’s broad authority to control courtroom proceedings.
• Abuse-of-discretion standard: An abuse occurs if the decision is arbitrary/unreasonable, based on legal error, or founded on factual error. State v. Bilbrey, 317 Kan. 57 (2023).
• Relevance of graphic evidence: While Cherry analogized to admissibility limits for gruesome photographs (Morris; Rodriguez), he did not challenge admissibility. The Court instead looked to trial-management discretion rather than admissibility standards. See State v. Morris, 311 Kan. 483 (2020); State v. Rodriguez, 295 Kan. 1146 (2012); cf. State v. Robinson, 293 Kan. 1002 (2012) (photographs may be relevant to elements even if cause of death is not contested).

New Rule and Its Application

The Court held that how long admitted exhibits remain on display during testimony falls within the trial court’s discretion to manage the proceedings. On this record, the State used the photographs to corroborate witness accounts (location of the shot, close-range struggle, attempted CPR). The transcript reflected only a brief discussion (about three-and-a-half pages) with the prosecutor expressly minimizing display time. The record lacked concrete evidence that the display was unduly prolonged. Accordingly, there was no abuse of discretion.

III. Limitation on Defense Witness (“Beth”) and the Proffer Requirement

Preservation and Proffers

• Right to present a defense is not absolute: It is subject to evidentiary rules and preservation requirements. State v. Waldschmidt, 318 Kan. 633 (2024); State v. Maestas, 298 Kan. 765 (2014); State v. Wells, 289 Kan. 1219 (2009).
• K.S.A. 60‑405: A verdict will not be set aside for exclusion of evidence unless the proponent makes known the substance of the evidence—by approved method or through questions indicating the desired answers.
• Hudgins/Evans: The proponent must create a record disclosing the excluded evidence; without it, appellate review is foreclosed. Hudgins, 301 Kan. at 651; State v. Evans, 275 Kan. 95 (2003).

Application

The defense sought to elicit Beth’s identification of men in a video (not in evidence) on Bob’s phone; the State objected on hearsay/foundation. The court invited a foundation and proffer, but defense counsel twice withdrew and “walked away from the video.” There is no record of who appeared in the video, what it depicted, or its connection to the shooter. Because counsel failed to proffer the substance, the appellate court had no basis to review the exclusion. The claim was not preserved.

IV. Stipulating to an Element Without a Jury-Trial Waiver

Governing Law

• Stipulating to an element waives jury determination of that element: State v. Johnson, 310 Kan. 909 (2019), applying Apprendi v. New Jersey, 530 U.S. 466 (2000).
• Failure to secure a waiver is constitutional error: State v. Bentley, 317 Kan. 222 (2023); State v. Guebara, 318 Kan. 458 (2024).
• Harmlessness: The State must prove beyond a reasonable doubt there is no reasonable possibility that the absence of advisement about the jury right affected the decision to stipulate. Bentley, 317 Kan. at 234–36; Guebara, 318 Kan. at 471–72.

Application

Cherry, his counsel, and the State signed a stipulation to the prior-felony element of the firearm charge, strategically avoiding disclosure of the underlying offense’s nature. Although the court did not secure an explicit jury-trial waiver, the record reflected a defense strategy to stipulate and streamline proof. As in Bentley and Guebara, the Court found the error harmless beyond a reasonable doubt.

V. Cumulative Error

• Standard: Cumulative errors may require reversal if, in totality, they substantially prejudice the defendant. See State v. Zongker, 319 Kan. 411 (2024). If any error is constitutional, the State must prove beyond a reasonable doubt the cumulative effect did not affect the outcome. Alfaro-Valleda, 314 Kan. at 551–52.
• Outcome: Aggregating three “we know” errors and the stipulation/waiver error did not undermine confidence in the verdict. The errors were minor in context; the State’s case on identity was strong; the stipulation conferred a strategic benefit to the defense.

VI. Speedy Trial: COVID‑19 Delays as a Neutral Reason Under Barker

Framework and Authorities

• Constitutional right: Sixth Amendment and Section 10, Kansas Bill of Rights. State v. Otero, 210 Kan. 530 (1972).
• Barker v. Wingo test: (1) length of delay; (2) reason; (3) assertion of the right; (4) prejudice. 407 U.S. 514 (1972). See also State v. Ford, 316 Kan. 558 (2022); State v. Hayden, 281 Kan. 112 (2006); State v. Owens, 310 Kan. 865 (2019); Doggett v. United States, 505 U.S. 647 (1992).
• Neutral approach to pandemic delays: The Court previously treated pandemic effects as neutral when assessing presumptive prejudice. State v. Smith, 320 Kan. 62 (2025). In Cherry, the Court expressly extends neutrality to Barker’s second factor (reason for delay).
• Persuasive authorities: United States v. Keith, 61 F.4th 839 (10th Cir. 2023) (COVID‑19 is a neutral justification); State v. Paige, 977 N.W.2d 829 (Minn. 2022) (statewide pandemic orders do not weigh against the State); State v. Contreras‑Avila, No. 125,485, 2024 WL 4002824 (Kan. App. 2024) (unpublished) (similar neutrality).
• Defendant-caused delays weigh against defendant: In re Care & Treatment of Ellison, 305 Kan. 519 (2016); Vermont v. Brillon, 556 U.S. 81 (2009).

Application

• Length: Nearly four years passed from arrest to trial. The Court assumed presumptive prejudice but proceeded to weigh the remaining factors.
• Reason: Cherry conceded he caused most delays, except for roughly ten months during COVID‑19. The Court weighed that pandemic period neutrally under Barker’s second factor, explicitly adopting neutrality for the reason-for-delay prong.
• Assertion: Cherry asserted his speedy-trial right only in July 2022, about three-and-a-half years after arrest; late assertion weighs neutrally. See State v. Rivera, 277 Kan. 109 (2004).
• Prejudice: Cherry argued oppressive incarceration and anxiety, but did not show impairment of his defense—the most serious form of prejudice. Given that most delay was defense-caused (including insisting on in-person settings during pandemic restrictions), the Court found no prejudice.
• Conclusion: No speedy-trial violation under Barker’s totality of circumstances.

Impact and Significance

1. New Clarification on Pandemic Delays

Cherry is a pivotal Kansas decision for post-pandemic litigation: COVID‑19 delays are neutral under Barker’s second factor, not counted against the State or the defense. This clarifies statewide expectations for pending and future speedy-trial motions that implicate pandemic-era docket disruptions. Defendants must show other State-caused reasons or actual prejudice to prevail.

2. Trial Management: Duration of Exhibit Display

As a matter of first impression, the Court located authority over the duration of displaying admitted exhibits firmly within the trial court’s broad discretion. Practically, this:

• Encourages counsel to build a record if they contend displays are excessive (note duration, purpose, and any limiting instructions sought).
• Confirms that objections premised solely on the length of display, without more, are unlikely to succeed absent a concrete record and demonstrable prejudice.

3. Prosecutorial Advocacy Boundaries

The opinion intensifies prior warnings against “we know” rhetoric about controverted facts, especially identity. The Court signals that cumulative error could cross the reversal threshold, and it references a contemporaneous case (Wash) where reversal occurred. Prosecutors should adopt neutral formulations (“the evidence shows,” “you may infer”) and anchor arguments in admitted, uncontroverted facts or clearly framed inferences without expressing personal belief.

4. Stipulations and Waivers

Cherry reaffirms that stipulating to an element effectively waives the jury’s role as factfinder on that element and thus requires an on-the-record, knowing waiver of the jury right. Although harmless here, the safest practice remains an explicit jury-trial waiver colloquy when accepting any stipulation to an element.

5. Preservation Through Proffer

The decision is a stark reminder: the party challenging the exclusion of evidence must proffer its substance. Without a proffer, appellate review is foreclosed. Defense counsel should be prepared to summarize expected testimony, identify relevance, and address admissibility foundations when challenged.

Complex Concepts Simplified

• What’s wrong with “we know” statements? They risk telling the jury the prosecutor’s opinion about disputed facts (e.g., identity), thereby intruding on the jury’s role as the ultimate factfinder. They are permissible only when tied to uncontroverted facts.
• Harmless-error review (Chapman standard): For constitutional errors (like prosecutorial error and jury-right violations), the conviction stands if the State proves beyond a reasonable doubt the error did not contribute to the verdict.
• Barker v. Wingo test for speedy trial: Courts balance the length of delay, reasons for delay, defendant’s assertion of the right, and prejudice (with special concern for impairment to the defense). No single factor is dispositive.
• Neutral treatment of COVID‑19 delays: Pandemic-related, systemwide slowdowns—absent bad faith—are treated neutrally, neither weighing for nor against the State in the “reason” factor.
• Proffer (K.S.A. 60‑405): If evidence is excluded, the proponent must put on the record what the evidence would have been. Without that, an appellate court cannot evaluate whether exclusion was erroneous and prejudicial.
• Stipulation to an element vs. jury-trial waiver: When a defendant stipulates to an element, he effectively waives the jury’s role on that element; courts must ensure a knowing, voluntary waiver of the jury right before accepting such a stipulation.

Practice Pointers

• For prosecutors: Avoid “we know” when discussing contested facts; rely on “the evidence shows” and tie arguments to the record. Anticipate Chapman review and cumulative-error analysis.
• For defense counsel: Preserve issues. If evidence is excluded, make a full proffer—who, what, why relevant, and foundation. If challenging exhibit displays, create a clear record of duration and prejudice. Assert speedy-trial rights early and document specific prejudice.
• For trial judges: When accepting a stipulation to an element, conduct an on-the-record colloquy establishing a knowing jury-trial waiver. When managing graphic exhibits, state the purpose and, where appropriate, consider time-limiting or instructing the jury to mitigate potential prejudice.

Conclusion

State v. Cherry settles two important procedural points in Kansas: COVID‑19 delays are weighed neutrally under Barker’s “reason for delay” factor, and trial judges have discretion over how long admitted exhibits may be displayed during testimony. The opinion also reinforces enduring doctrines: prosecutors must not declare personal conclusions on controverted facts; counsel must proffer excluded evidence to preserve appellate review; and stipulations to elements require jury-trial waivers, though such errors can be harmless when the record demonstrates a strategic, informed choice.

Ultimately, the Court affirmed because overwhelming corroboration supported the jury’s finding that Cherry was the shooter; the prosecutorial missteps were harmless; the evidentiary display was within the court’s discretion; the defense forfeited review of the excluded video issue by failing to proffer; the stipulation error did not undermine the verdict; and the pandemic-era delays, treated neutrally, did not tip the Barker balance. Cherry will guide post-pandemic speedy-trial litigation, courtroom management of graphic exhibits, and the best practices for stipulations and closing argument in Kansas criminal trials.