concurring: I write separately because I believe the prosecutorial misconduct in this case raises an extremely close question and highlights our need for additional direction from the Supreme Court on the quality and quantity of misbehavior necessary before we are compelled to find the existence of “ill will.”
Although I agree ultimately that the prosecutorial misconduct here does not require reversal, I would not rely, as the majority of the panel does, on State v. Whitaker, 255 Kan. 118, 872 P.2d 278 (1994), and State v. Eastridge, 20 Kan. App. 2d 973, 894 P.2d 243 *55(1995). Those decisions predate State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000), and State v. Lockhart, 24 Kan. App. 2d 488, 947 P.2d 461, rev. denied 263 Kan. 889 (1997), the Court of Appeals opinion dealing with a prosecutor s statements denigrating defense counsel’s credibility, on which Pabst in part relied. I believe the persuasive value of Whitaker and Eastridge has been diminished. I instead look to Pabst and its two-part standard, the second part of which is further broken down into three factors. Pabst — and subsequent cases attempting to employ its revitalized scrutiny of prosecutorial misconduct — control the analysis and outcome here.
As Judge Pierron has noted, Pabst counsels us to look first at whether the prosecutor’s remarks were outside the considerable latitude allowed in a discussion of the evidence. There can be no serious dispute that the remarks at issue here fall well outside recognized boundaries. Pabst then asks us to determine whether the remarks constitute plain error. 268 Kan. at 505.
The second prong of Pabst requires us to evaluate whether the conduct was “ ‘ “ ‘so gross and flagrant as to deny the accused a fair trial,’ ” ’ ” whether the remarks showed ill will on the prosecutor’s part, and whether the evidence against the accused was “ ‘ “ ‘of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors.’ ” ’ ” 268 Kan. at 508 (quoting Lockhart, 24 Kan. App. 2d at 492).
The majority panel opinion concludes: “Compared to other cases where the defendant is intentionally called a liar or defense counsel’s integrity is questioned, there is no evidence of ill will on the part of the prosecutor in the present case.” This is the statement with which I differ. Neither Pabst nor the cases following it inevitably require the defendant to demonstrate an instance or instances of spiteful or malicious State conduct beyond the credibility-maligning misconduct underlying the claim. See State v. Hazley, 28 Kan. App. 2d 664, 669-70, 19 P.3d 800 (2001) (negative comments about credibility of defense witness met ill will standard; conclusion bolstered by additional improper argument); State v. Magdaleno, 28 Kan. App. 2d 429, 437, 17 P.3d 974, rev. denied 271 Kan. 1040 (2001) (negative comments about defense counsel’s integrity manifest ill will); State v. Pham, 27 Kan. App. 2d 996, *561005-06, 10 P.3d 780 (2000) (negative comments about defense counsel reflect ill will; other improper comments reinforce that conclusion). This makes logical as well as legal sense. Although the “ill will” inquiry may be largely an enterprise that relies on individual judges to “know it when they see it,” a single impermissible remark or behavior may be so persistent, so extreme, or so unduly prejudicial that it alone demonstrates the existence of ill will. One objectionable comment or behavior repeated and emphasized with impunity is certainly amenable to such a characterization. See Pabst, 268 Kan. at 505-12; Lockhart, 24 Kan. App. 2d 491-93. In my view, that is exactly what we are faced with in this case.
The prosecutor in Wright’s trial did not make an isolated, stray, or accidental remark. Rather, the prosecutor told the jury explicitly that Wright and his fiancee would lie: “Tahmekah Henson’s gonna lie for herself and she’s gonna lie for Ulysses Wright. Ulysses Wright’s gonna he for himself and he’s gonna lie for Tahmekah. And they thought up this story.” Unchecked by any defense objection or admonition from the bench, the prosecutor was considerably more direct than prosecutors in other cases subject to reversal have been. See Hazley, 28 Kan. App. 2d at 666 (no doubt witness “knew of facts contrary to his testimony”); Magdaleno, 28 Kan. App. 2d at 437 (defense counsel “knows . . . that is not true”); Pham, 27 Kan. App. 2d at 1005 (defendant and defense counsel do not “care about the truth”).
The Pabst/Lockhart factor that saves this case from reversal is the third. The weight of the evidence was “ ‘ “ ‘of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors.’ ” ’ ” Pabst, 268 Kan. at 508 (quoting Lockhart, 24 Kan. App. 2d at 492). Given the elderly victim’s testimony, the neighbor’s corroboration, and the ambiguity in Wright’s letter, the error had little, if any, likelihood of changing the result at trial. We also have not detected other error that could have combined with the prosecutorial misconduct and required reversal under the doctrine of cumulative error. I therefore concur in affirming Wright’s conviction.