State v. Louis ( 2016 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 110,853
STATE OF KANSAS,
Appellee,
v.
STEVEN M.N. LOUIS,
Appellant.
SYLLABUS BY THE COURT
1.
When analyzing jury instruction issues, we follow a three-step process: (a)
Determining whether an appellate court can or should review the issue, i.e., whether there
is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (b)
considering the claim's merits to determine whether error occurred; and (c) assessing
whether the error requires reversal, i.e., whether the error can be deemed harmless, using
the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256
P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). If the error did not violate a
constitutional right, the error is reversible only if the court determines there is a
reasonable probability the error affected the outcome of the trial in light of the entire
record.
2.
Kansas does not recognize the crime of attempted involuntary manslaughter.
3.
The double rule of K.S.A. 2011 Supp. 21-6819(b) does not apply to off-grid
sentences. Subsection (b)(2) provides that when grid and off-grid sentences run
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consecutively, an offender serves the off-grid sentence before service of the grid sentence
commences. Because the primary crime cannot be an off-grid crime, the double rule
applies to the grid crimes after the defendant serves the off-grid sentence and does not
limit the off-grid sentence.
Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed November
23, 2016. Affirmed.
Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of the
same office, was on the brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
BILES, J.: This is Steven M.N. Louis' direct appeal from his convictions for first-
degree felony murder, three counts of attempted first-degree murder, and additional
counts of aggravated assault and criminal discharge of a firearm. His convictions arise
from a clash between two rival Wichita gangs that included a shoot-out in a local
restaurant's parking lot and a later drive-by shooting in a residential neighborhood. Louis
challenges the convictions and the life sentence he received for the murder conviction.
Regarding the convictions, Louis argues: (1) The district court erred when it
failed to give lesser included offense instructions relating to the attempted first-degree
murder convictions; (2) the district court erred when it failed to instruct that a principal
cannot be liable under the felony-murder statute for the death of a co-felon arising from a
third-party's lawful self-defense; and (3) the prosecutor improperly commented during
closing arguments that Louis did not want the jury to know he and others involved in the
shootings were gang members. As to the sentencing, he contends the district court could
2
not impose the life sentence because statutory sentencing guidelines for multiple
conviction cases limited his total prison term to twice the sentence authorized for his
most serious conviction that was not eligible for a life sentence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The first shooting occurred at a restaurant where Louis was present with several
companions, including Michael Saechao, who died in the gunfire. Louis, Saechao, and
others in Louis' party belonged to a street gang known as the "Asian Boyz." John and
Daniel Nguyen, Hien Dao, and Hau Tran, who were members of a rival gang known as
the "Viet Boyz," were also there, along with their friends, Viet Nguyen and Jennifer Ma.
The State claimed there had been an earlier altercation between members of the two
groups that extended to the restaurant.
The testimony about the first shooting and the moments leading up to it varies.
Most witnesses—including everyone who claimed to see the shooting itself—were
members of one group or the other. Multiple witnesses recalled a disturbance inside the
restaurant, after which an employee ejected the Viet Boyz group. One witness testified
Tran then made faces through the window at Louis and his group. After this, Louis and
his party's other male members, including Saechao, left through the back exit. Gunfire
erupted after Louis left the restaurant.
Police recovered numerous cartridge casings. The evidence shows all the shots
were fired by two people: a passenger in a gray or silver Honda SUV, in which the Viet
Boyz group was leaving, and Louis, who was on foot. There was conflicting testimony
about who fired first. One witness said the gunfire started while the Viet Boyz group was
running to their vehicle. When the gunfire started, she looked up and saw Louis shooting,
although she was not certain who fired first. Another witness said three or four shots
came from the SUV and no shots were fired thereafter. And yet another said she walked
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out, the gunfire began, and she saw an individual running up from the side of the building
and shooting as the SUV drove away. One of the SUV's passengers said he heard
gunshots coming from behind the vehicle before he was struck in the back by a bullet and
passed out.
Louis, on the other hand, claimed he left through the back exit to be with Saechao,
who was smoking a cigarette. He said he was walking to his car when gunfire started and
someone said "duck" or "run." He said he saw movement and a gun inside the SUV. He
admitted firing a full 15-round clip at the SUV but argued it was self-defense.
In the aftermath, Saechao had sustained a fatal gunshot wound to the head. Viet
Nguyen and John had each suffered gunshot wounds to their backs. Louis admitted
leaving the scene within a couple of seconds. He was driving a dark, multi-colored
hatchback with a white hood and a loud exhaust.
Meanwhile, the Viet Boyz group in the SUV and their companions travelling in
different vehicles drove to a residential area where yet another companion of the group
lived. About 20 minutes later, gunshots fired from a passing car struck two homes, two
unoccupied vehicles, and Dao's vehicle, in which Ma had just arrived. Ma was still in the
driver's seat when the bullets struck the car: one through the windshield and into the
dashboard right above the steering wheel, one through the driver's side mirror and driver's
side window, and one just behind the driver's side door.
Ma did not see the shooter but told detectives one of two cars she saw was black
and white, possibly a hatchback. An area resident saw a dark hatchback with a
"distinctive" muffler sound coming up the road after hearing gunshots. Another said he
heard a car leaving at a high speed that sounded like a foreign car with a big muffler.
Police again collected cartridge casings from the scene, all of which were ejected from
the same weapon as 15 casings recovered from the restaurant parking lot.
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Police found Louis' vehicle the next day at the house where Louis had been
staying. The car was in the garage under a tarp and had a bullet hole in its roof.
The State put on evidence about tension between the Asian Boyz and Viet Boyz
gangs arising from a 2009 altercation, in which a Viet Boyz member had been killed. At
the time of the shootings in this case, an Asian Boyz member had recently been sentenced
for a crime related to that 2009 incident.
The jury found Louis guilty of 12 crimes. Those relevant to this appeal are: the
first-degree felony murder of Saechao; the attempted first-degree murder of Ma; and the
attempted first-degree murders of SUV passengers, Dao and John Nguyen.
The district court sentenced Louis to a hard 20 life sentence for felony murder and
a consecutive 165-month prison term for Ma's attempted first-degree murder. It directed
the sentences for the remaining 10 counts to run concurrent to the others.
LESSER INCLUDED OFFENSE INSTRUCTIONS
Louis requested a jury instruction on attempted second-degree murder as a lesser
included offense for Ma's attempted first-degree murder. The State objected, arguing the
evidence supported only the single conclusion that Louis went to the residential area to
shoot anyone there. The district court refused the requested instruction, explaining:
"Moving from the . . . restaurant to [the residential area], the very act of moving there is a
premeditated act and the firing at the vehicle, discharging the firearm into this vehicle is a
premeditated act.
"Jennifer Ma was present. And again, the trajectory of the three bullets that
entered that vehicle, clearly it could be argued—obviously, the jury has to make the
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conclusion, but it can clearly be argued that those three rounds were intended to kill
somebody in the . . . driver's seat of that vehicle.
"So based on those factors and the argument made by [the State], it is just a
different way of saying I think somewhat the same thing, I will not give the lesser
included instruction . . . ."
As to the attempted first-degree murders of Dao and John Nguyen at the
restaurant, the district court instructed the jury on the lesser included offenses of
attempted second-degree murder and attempted voluntary manslaughter. But the district
court refused Louis' request to instruct the jury on attempted involuntary manslaughter as
a lesser included offense. Louis argued the instruction was warranted because he acted
recklessly when he ran "down the barrel of a gun being fired at" him. The district court
ruled that the act of pulling a trigger could not be involuntary.
On appeal, Louis claims the district court erred by refusing to give the requested
instructions.
Standard of review
When analyzing jury instruction issues, an appellate court follows a three-step
process by: (1) Determining whether the appellate court can or should review the issue,
i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for
appeal; (2) considering the merits to determine whether error occurred; and (3) assessing
whether the error requires reversal. State v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d
877 (2015). Whether a party has preserved a jury instruction issue affects the reversibility
inquiry at the third step. 302 Kan. at 752; see also K.S.A. 2015 Supp. 22-3414(3) ("No
party may assign as error the giving or failure to give an instruction . . . unless the party
objects thereto before the jury retires to consider its verdict . . . unless the instruction or
the failure to give an instruction is clearly erroneous."). Louis requested the instructions
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at issue here, so he preserved the issue. See K.S.A. 2015 Supp. 22-3414(3) (defendant
must distinctly state an objection to the omission of an instruction before the jury retires
to consider its verdict).
At the second step, we consider whether the instruction was legally and factually
appropriate, employing an unlimited review of the entire record. Pfannenstiel, 302 Kan.
at 752. If the district court erred, and the error did not violate a constitutional right, "the
error is reversible only if [the court] determine[s] that there is a 'reasonable probability
that the error will or did affect the outcome of the trial in light of the entire record.'" State
v. Plummer, 295 Kan. 156, 168, 283 P.3d 202 (2012) (quoting State v. Ward, 292 Kan.
541, 569, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]).
Lesser included offense of attempted first-degree murder of Ma
An attempted intentional second-degree murder instruction would have been
legally appropriate as a lesser included offense of attempted first-degree murder. See
State v. Shannon, 258 Kan. 425, 429, 905 P.2d 649 (1995) (noting intentional second-
degree murder is lesser included offense of first-degree murder and court has previously
recognized attempted second-degree murder as lesser included offense of attempted first-
degree murder); see also K.S.A. 2015 Supp. 22-3414(3) ("In cases where there is some
evidence which would reasonably justify a conviction of some lesser included crime . . .
the judge shall instruct the jury as to . . . any such lesser included crime."). Therefore, the
only remaining issues are whether the instruction was factually appropriate and, if so,
whether failing to give it was reversible.
Attempted intentional second-degree murder differs from attempted first-degree
murder in that the former lacks the element of premeditation. See State v. Haberlein, 296
Kan. 195, 204, 290 P.3d 640 (2012) (noting premeditation element is only difference
between first-degree premeditated murder and second-degree intentional murder); see
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also State v. Clark, 261 Kan. 460, 466-67, 931 P.2d 664 (1997) (jury instruction on lesser
included offense of attempted second-degree murder not warranted because of evidence
establishing premeditation). Compare K.S.A. 2015 Supp. 21-5402(a)(1) (first-degree
premeditated murder), with K.S.A. 2015 Supp. 21-5403(a)(1) (second-degree intentional
murder). The State argues Louis was not entitled to this instruction because the jury could
not reasonably have convicted him of attempted second-degree murder given the
abundant evidence of premeditation for the drive-by shooting.
This issue raises two questions. First, when all the elements of a lesser included
offense are identical to some elements of the charged offense, is a defendant entitled to a
jury instruction on the lesser offense because evidence sufficient to sustain a conviction
on the greater offense is necessarily sufficient to sustain a conviction on the lesser? And,
second, if not, was Louis entitled to an instruction on attempted second-degree murder
based on the evidence at trial?
We note an apparent conflict in our recent cases on the first question. Compare
Haberlein, 296 Kan. at 204 (holding in first-degree premeditated murder case that jury
instruction on lesser included offense of intentional second-degree murder was factually
appropriate because elements other than premeditation identical so jury could have
convicted of lesser crime without danger of reversal for insufficient evidence), with State
v. Jones, 279 Kan. 395, 401-06, 109 P.3d 1158 (2005) (reviewing strength of evidence
supporting both premeditation and mere intentional conduct in determining whether
lesser included offense instruction appropriate). But we need not resolve this because
even assuming the district court should have given the instruction, its failure to do so was
harmless. There was overwhelming evidence of premeditation, so there is no reasonable
probability the jury would have convicted Louis of second-degree murder had the
instruction been given.
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"Premeditation means to have thought the matter over beforehand and does not
necessarily mean an act is planned, contrived, or schemed beforehand; rather,
premeditation indicates a time of reflection or deliberation." State v. Kettler, 299 Kan.
448, 466, 325 P.3d 1075 (2014). But the design or intent to kill must have been formed
before the act; premeditation requires more than an instantaneous, intentional killing. See
State v. Lawrence, 281 Kan. 1081, 1090-91, 135 P.3d 1211 (2006) (reciting definition of
premeditation in pattern instructions and listing cases approving language used therein).
Factors used to determine whether evidence raises an inference of premeditation include:
"'(1) [T]he nature of the weapon used; (2) lack of provocation; (3) the defendant's
conduct before and after the killing; (4) threats and declarations of the defendant before
and during the occurrence; and (5) the dealing of lethal blows after the deceased was
felled and rendered helpless. [Citation omitted.]' Scaife, 286 Kan. at 617-18; see State v.
Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013). But the analysis of what inferences can
be reasonably drawn is not driven by the number of factors present in a particular case
because in some cases one factor alone may be compelling evidence of premeditation."
Kettler, 299 Kan. at 467.
When the defendant kills someone other than the intended victim, intent and
premeditation are transferred to the killing of the unintended victim. State v. Gayden, 259
Kan. 69, 77, 910 P.2d 826 (1996).
Using a deadly weapon, Louis fired multiple shots into the driver's area of Ma's
vehicle, where Ma was sitting. There was no evidence that Ma provoked Louis to indicate
he instantaneously formed the intent to kill her—the incident at the restaurant occurred
approximately 20 minutes earlier. Louis witnessed his friend suffering a fatal gunshot
wound to the head during the restaurant shootout with individuals who happened to have
driven directly to the residence where Ma's vehicle was parked. Moreover, Ma's vehicle
belonged to one of those individuals. And because Louis fired all the rounds from his
weapon at the restaurant, he necessarily had to reload before the drive-by shooting. Then,
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he sped from the scene and the vehicle he used to commit the crime was found concealed
in a garage under a tarp.
In view of this evidence that Louis formed a design or intent to kill before the
drive-by shooting, there is no reasonable probability the jury would have convicted him
of attempted second-degree murder had the instruction been given.
Lesser included offense of attempted involuntary manslaughter
Louis also argues his convictions for attempted first-degree murder for the
shootings outside the restaurant must be reversed because the district court should have
instructed the jury on the lesser included offense of attempted reckless involuntary
manslaughter. We disagree. Attempted involuntary manslaughter is not an offense, so the
requested instruction was not legally appropriate.
An attempt is "any overt act toward the perpetration of a crime done by a person
who intends to commit such crime but fails in the perpetration thereof . . . ." K.S.A. 2015
Supp. 21-5301(a). To prove an attempt, the State "must show . . . the actual intent to
commit [the] particular crime." State v. Robinson, 256 Kan. 133, 137, 883 P.2d 764(1994).
K.S.A. 2015 Supp. 21-5405(a)(1) defines involuntary manslaughter as "the killing
of a human being committed . . . [r]ecklessly." K.S.A. 2015 Supp. 21-5202(j) provides:
"A person acts 'recklessly' or is 'reckless,' when such person consciously disregards a
substantial and unjustifiable risk . . . that a result will follow, and such disregard
constitutes a gross deviation from the standard of care which a reasonable person would
exercise in the situation." The defendant's conduct must be voluntary. K.S.A. 2015 Supp.
21-5201(a); see also K.S.A. 2015 Supp. 21-5202(a) (culpable mental state is element of
every crime, except where otherwise provided, which must be proved by either
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intentional, knowing, or reckless conduct). But specific intent to kill is not an element of
the offense. See K.S.A. 2015 Supp. 21-5202(h) (crimes defined with intent state of mind
are specific intent crimes).
Kansas has previously refused to recognize the offense of attempted involuntary
manslaughter. See Shannon, 258 Kan. at 428-29; State v. Collins, 257 Kan. 408, 419, 893
P.2d 217 (1995). The rationale is that an attempt requires specific intent to commit the
object crime, so "to establish the crime of attempted involuntary manslaughter the person
would be required to specifically intend to commit an unintentional crime. This is a
logical impossibility." Collins, 257 Kan. at 419; see also Robinson, 256 Kan. at 137(attempted first-degree felony murder is not a crime because, among other things, felony
murder allows for a culpable mental state short of specific intent to kill, i.e., recklessness,
negligence, or an accident, and one cannot intend to commit accidental, negligent, or
reckless homicide).
Louis argues the 2011 recodification of the Kansas criminal statutes changes the
analysis because, under the new code, proof of a higher degree of culpability than that
charged constitutes proof of the culpability charged. He reasons that if recklessness
suffices to establish an element, that element is also established if a person acts
knowingly or intentionally. Therefore, he argues, when the facts are sufficient to prove a
defendant attempted to intentionally kill another with premeditation, they are also
sufficient to prove attempted reckless involuntary manslaughter.
The new statutory language does not aid Louis because reckless involuntary
manslaughter does not require intent to kill as an element of the offense. Conduct
designed to cause death—and, for that matter, conduct the actor knows is reasonably
certain to cause death—is now sufficient to establish the defendant acted recklessly. See
K.S.A. 2015 Supp. 21-5202(c), (h), and (i). But a person who intends to kill and fails is
guilty of an attempted intentional killing. See 2 LaFave, Substantive Criminal Law § 11.3
11
(2d ed. 2003) ("[T]here is no such thing as attempted second degree murder in those
jurisdictions where the types of malice sufficient for second degree murder do not include
intent to kill."); see, e.g., State v. Coble, 351 N.C. 448, 449-51, 527 S.E.2d 45 (2000)
(under state law, first-degree murder is only homicide crime that requires intent to kill;
because other homicide crimes lack this element, and attempt requires specific intent to
complete the underlying offense, attempt to commit any form of homicide other than
first-degree murder logically impossible); Dominguez v. State, 840 N.W.2d 596, 603
(N.D. 2013) (holding attempted murder requires specific intent to kill, therefore attempt
to commit murder under circumstances manifesting extreme indifference to the value of
human life, resulting in an unintentional death, is not a cognizable offense).
Because attempted involuntary manslaughter is not a recognized criminal offense,
the requested instruction for the attempted first-degree murders of Hien Dao and John
Nguyen was not legally appropriate.
FELONY-MURDER INSTRUCTION
Louis next argues the district court erred by failing to instruct the jury that felony
murder does not occur when a co-felon's death results from a third party's legal act of
self-defense. Louis did not request this instruction at trial, so the trial court's failure to
give it would be reviewed for clear error if the instruction was legally and factually
appropriate. Pfannenstiel, 302 Kan. at 752-53. Any error is not reversible unless the court
is firmly convinced that error affected the jury's verdict. See 302 Kan. at 752-53.
A defendant is not criminally responsible for a co-felon's death caused by a law
enforcement officer's lawful acts or by the felony victim's self-defense. State v.
Sophophone, 270 Kan. 703, 713, 19 P.3d 70 (2001) (law enforcement officer's lawful
act); State v. Murphy, 270 Kan. 804, 809, 19 P.3d 80 (2001) (victim's self-defense). Here
those circumstances were not presented. There is no evidence showing Saechao was
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engaged in a felony enterprise with Louis when he died. Instead, the only evidence was
Louis' testimony that Saechao was smoking a cigarette behind the restaurant when the
shooting occurred. All the physical evidence showed the rounds fired by the Asian Boyz
group were from a single gun, and Louis admitted he was the shooter.
Based on the record, the jury could not have inferred Saechao was Louis' co-felon,
so an instruction on this otherwise valid legal principle was not factually appropriate.
ALLEGED PROSECUTORIAL ERROR
Louis next argues the prosecutor committed reversible error during his rebuttal to
defense counsel's closing argument by commenting on the district court's evidentiary
rulings. The statement at issue followed defense counsel twice referring to evidence of
Louis' gang affiliation as "baloney." This apparently prompted the prosecutor to respond:
"And what do ya know, this defendant loads up. He testified under oath that he
loaded up his gun in his pants and went into [the restaurant]. Why? Why go into [the
restaurant] with a gun that has 15 rounds in it? Because you're going in there because you
know your rivals are there. Gang stuff baloney? They want to believe it's baloney, they
don’t want you to know anything about it. But you do know something about it, ladies
and gentlemen, you know [Louis] self-admitted to [a Sheriff's deputy]. And they want
you to say oh, you can't believe [the deputy.]" (Emphasis added.)
Standard of review
We recently retooled how we will consider a criminal defendant's challenge to a
prosecutor's behavior during trial. See State v. Sherman, 305 Kan. 88, 378 P.3d 1060(2016). Sherman distinguishes between prosecutorial conduct that is merely negligent or
careless and prosecutorial behavior that is intentional or in some way malicious. See 305
Kan. at 114. In the context of closing argument, either can lead to error if the prosecutor
13
goes outside the wide latitude allowed when discussing evidence. If so, the court
evaluates "whether the error prejudiced the defendant's due process rights to a fair trial"
by applying the federal constitutional harmless error inquiry articulated in Chapman v.
California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Sherman, 305 Kan.
at 109; see State v. Carter, 305 Kan. 139, 148, 380 P.3d 189 (2016).
But because Louis' case was argued and fully submitted prior to Sherman, and
because applying Sherman would not change the outcome, we will use our prior
prosecutorial misconduct caselaw. See Carter, 305 Kan. at 148 (applying prior caselaw
when the case was argued and fully submitted for the court's decision prior to Sherman
and "application of the new framework would not make a difference in the outcome").
And under that previous caselaw, review based on a prosecutor's improper comments
requires a two-step analysis. First, an appellate court decides whether the comments at
issue were outside the wide latitude allowed to a prosecutor, e.g., when discussing
evidence. If so, there was misconduct. Second, if misconduct is found, an appellate court
determines whether the improper comments prejudiced the jury against the defendant and
denied the defendant a fair trial. State v. Hudgins, 301 Kan. 629, 646, 346 P.3d 1062(2015).
"Appellate courts consider three factors in analyzing the second step: (1)
whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill
will on the prosecutor's part; and (3) whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the
jurors' minds. But none of these factors individually controls; and before the third factor
can override the first two, an appellate court must be able to say the harmlessness tests of
both K.S.A. 60-261 and Chapman . . . have been met. State v. McCullough, 293 Kan.
970, 990-91, 270 P.3d 1142 (2012).
"When both constitutional and nonconstitutional errors clearly arise from the
same acts and omissions, an appellate court begins with a harmlessness analysis of the
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constitutional error. If the constitutional error is reversible, an appellate court need not
analyze whether the lower standard for harmlessness under K.S.A. 60-261 also has been
met. [Citation omitted.] Under both standards, the party benefiting from the error bears
the burden to demonstrate harmlessness. [Citation omitted.]" Hudgins, 301 Kan. at 646-
47.
Discussion
Louis relies on State v. Finley, 273 Kan. 237, 42 P.3d 723 (2002), to argue the
prosecutor's statement was misconduct. In Finley, the court held the prosecutor exceeded
the wide latitude allowed in discussing evidence when he told the jury, "'[E]very time that
the defendant objected to the admission of their evidence, you noticed that it was
overruled because there's no basis in law for that objection. They didn't do anything
wrong.'" 273 Kan. at 248. The court reasoned:
"It is a well established law in this state that rulings of the trial court on objections to
evidence are not a proper subject for a prosecutor's closing argument. Why any
prosecutor would conclude otherwise and mention such rulings in closing argument to
bolster its case before the jury is beyond any good answer. When the law is so clear we
cannot understand why such errors occur." 273 Kan. at 248.
Louis claims the prosecutor in his case similarly discussed defense counsel's
attempts to exclude evidence of Louis' gang affiliation. But he does not identify any
instance of an objection to gang evidence that was ruled upon in the jury's presence, such
that the jury would have understood the prosecutor's rebuttal comment to have referred to
any such ruling. So unlike the comment in Finley, which explicitly traded on defense
counsel's lack of success when objecting to the State's evidence, it is uncertain whether
the comment here was actually a comment on a trial court ruling, as Louis asserts.
15
But even absent reference to a particular ruling, it is unclear how the defense's
desire to keep evidence from the jury would be a proper factor in the jury's decision-
making to justify the prosecutor's comment. In other words, this information would not
be relevant to deciding guilt for the charged crimes. Cf. State v. Knox, 301 Kan. 671, 684,
347 P.3d 656 (2015) (misconduct for prosecutor to comment about defense counsel's
experience because the statement relied on facts outside the evidence).
Nonetheless, absent any other context and given that this was a single comment
made in rebuttal, we hold this statement was within the wide latitude afforded to
prosecutors when responding to defense counsel's "baloney" remark—but just barely. See
State v. Wells, 297 Kan. 741, 753, 305 P.3d 568 (2013) ("The line of separation is a thin
one; were it drawn with chalk, the prosecutor's shoes would need buffing.").
MULTIPLE OFFENSES SENTENCING
Finally, Louis argues his sentence is illegal based on his reading of K.S.A. 2011
Supp. 21-6819(b)(4), which provides: "The total prison sentence imposed in a case
involving multiple convictions arising from multiple counts within an information,
complaint or indictment cannot exceed twice the base sentence."
Louis claims his life sentence for the felony-murder conviction violates the
statute's so-called "double rule" because the base sentence for his primary crime was 165
months' imprisonment under the statute. If true, he reasons that the longest prison
sentence the district court could have imposed was 330 months.
This claim arises for the first time on appeal. But an appellate court may correct an
illegal sentence at any time. State v. Kelly, 298 Kan. 965, 975, 318 P.3d 987 (2014)
(citing K.S.A. 22-3504[1]). We consider this argument on that basis.
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Standard of review
The issue is whether the above-quoted language from K.S.A. 2011 Supp. 21-
6819(b)(4) applies to the off-grid portion of a defendant's prison sentence. This requires
interpretation of K.S.A. 2011 Supp. 21-6819. Interpretation of a sentencing statute is a
legal question over which an appellate court has unlimited review. State v. Collins, 303
Kan. 472, 473-74, 362 P.3d 1098 (2015).
Discussion
In cases in which consecutive sentences may be imposed, the sentencing court is
governed by the following statutory language:
"(1) When the sentencing judge imposes multiple sentences consecutively, the
consecutive sentences shall consist of an imprisonment term which is the sum of the
consecutive imprisonment terms, and a supervision term. The postrelease supervision
term will be based on the longest supervision term imposed for any of the crimes.
"(2) The sentencing judge shall establish a base sentence for the primary crime.
The primary crime is the crime with the highest crime severity ranking. An off-grid crime
shall not be used as the primary crime in determining the base sentence when imposing
multiple sentences. If sentences for off-grid and on-grid convictions are ordered to run
consecutively, the offender shall not begin to serve the on-grid sentence until paroled
from the off-grid sentence, and the postrelease supervision term will be based on the off-
grid crime. If more than one crime of conviction is classified in the same crime category,
the sentencing judge shall designate which crime will serve as the primary crime. In the
instance of sentencing with both the drug grid and the nondrug grid and simultaneously
having a presumption of imprisonment and probation, the sentencing judge shall use the
crime which presumes imprisonment as the primary crime. In the instance of sentencing
with both the drug grid and the nondrug grid and simultaneously having a presumption of
either both probation or both imprisonment, the sentencing judge shall use the crime with
the longest sentence term as the primary crime.
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"(3) The base sentence is set using the total criminal history score assigned.
"(4) The total prison sentence imposed in a case involving multiple convictions
arising from multiple counts within an information, complaint or indictment cannot
exceed twice the base sentence. This limit shall apply only to the total sentence, and it
shall not be necessary to reduce the duration of any of the nonbase sentences imposed to
be served consecutively to the base sentence. The postrelease supervision term will
reflect only the longest such term assigned to any of the crimes for which consecutive
sentences are imposed. Supervision periods shall not be aggregated.
"(5) Nonbase sentences shall not have criminal history scores applied, as
calculated in the criminal history I column of the grid, but base sentences shall have the
full criminal history score assigned. In the event a conviction designated as the primary
crime in a multiple conviction case is reversed on appeal, the appellate court shall remand
the multiple conviction case for resentencing. Upon resentencing, if the case remains a
multiple conviction case the court shall follow all of the provisions of this section
concerning the sentencing of multiple conviction cases.
"(6) If the sentence for the primary crime is a prison term, the entire
imprisonment term of the consecutive sentences will be served in prison.
"(7) If the sentence for the consecutive sentences is a prison term, the postrelease
supervision term is a term of postrelease supervision as established for the primary crime.
"(8) If the sentence for the primary crime is a nonprison sentence, a nonprison
term will be imposed for each crime conviction, but the nonprison terms shall not be
aggregated or served consecutively even though the underlying prison sentences have
been ordered to be served consecutively. Upon revocation of the nonprison sentence, the
offender shall serve the prison sentences consecutively as provided in this section."
(Emphasis added.) K.S.A. 2011 Supp. 21-6819(b).
Louis' reading of the statute is without merit. The legislature could not have meant
the portion of K.S.A. 2011 Supp. 21-6819 upon which he focuses to limit the total prison
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term for off-grid crimes to twice the sentence for any grid-felony conviction also entered
in a multiple conviction case. The statute clearly contemplates on-grid and off-grid
sentences may be imposed in the same case. See K.S.A. 2011 Supp. 21-6819(b)(2).
Moreover, under the Revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2011
Supp. 21-6801 et seq., felony murder is an off-grid crime for sentencing purposes for
which "the sentence shall be imprisonment for life . . . ." K.S.A. 2011 Supp. 21-6806(c).
Conspicuously, K.S.A. 2011 Supp. 21-6819 is absent from the list of statutory exceptions
to the mandatory-life-sentence requirement. See K.S.A. 2011 Supp. 21-6806(c).
We further note that a Court of Appeals panel has recently rejected an identical
legal argument under similar facts employing a similar rationale. State v. Grotton, 50
Kan. App. 2d 1028, 337 P.3d 56 (2014), rev. denied 302 Kan. 1015 (2015). The Grotton
court reasoned that (1) applying the double rule to off-grid crimes would violate the
statute prescribing the hard 25 life sentence for off-grid Jessica's law offenses; and (2)
applying the double rule would be absurd, because a person convicted of only an off-grid
crime would serve a life sentence, but a person convicted also of a grid crime would
serve only up to twice the grid sentence because the person committed an additional
crime. 50 Kan. App. 2d at 1032. The court held:
"A more reasonable interpretation of K.S.A. 21-4720(b) [the predecessor to
K.S.A. 2011 Supp. 21-6819] is that grid and off-grid sentences are handled separately.
Section (b)(2) provides that when grid and off-grid sentences run consecutively, the
offender serves the off-grid sentences first and does not begin to serve the grid sentence
until paroled from the off-grid sentence. Because the primary crime cannot be an off-grid
crime, the double rule applies to the grid crimes after the defendant serves his or her off-
grid sentence and does not limit the off-grid sentences. K.S.A. 21-4720(b)(2). In cases
where the sentences all run concurrent to each other—as is the case here—the grid
sentence is subsumed into the off-grid sentence, and the double rule does not come into
play. Under this reasonable interpretation of K.S.A. 21-4720(b), the double rule does not
apply to Grotton's off-grid sentences, and her total sentence was not illegal." 50 Kan.
App. 2d at 1033.
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We agree with this reasoning and hold that Louis' life sentence is not illegal.
Affirmed.
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