State v. Carter

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 112,269
STATE OF KANSAS,
Appellee,
v.
KYLE CARTER,
Appellant.
SYLLABUS BY THE COURT
1.
The defendant's multiple allegations of prosecutorial misconduct are without
merit, save one. The prosecutor committed misconduct by arguing a fact not in evidence,
i.e., that a codefendant had blamed the defendant for fatally stabbing the victim. This
statement by the prosecutor qualified as gross and flagrant conduct but did not evidence
ill will, and the evidence against the defendant was strong. The error is not reversible.
2.
A judge's preliminary statement to jurors that they have an "obligation" to convict
when "convinced beyond a reasonable doubt that what the State alleges occurred" is error
but, on the record in this case, not reversible.
3.
On the record in this murder-by-stabbing case, the judge erred in omitting a lesser
included offense instruction on reckless second-degree murder. However, the unsought
instruction would have made no difference in the guilty verdict for premeditated first-
degree murder; the jury had the option to convict of intentional second-degree murder
and did not take it.
1
4.
It is unnecessary to add "mere association or presence is insufficient to establish
guilt as an aider or abettor" to a jury instruction on aiding and abetting if it is factually
inappropriate. On the record in this case, including defendant's own testimony confirming
that his participation in the crime clearly exceeded mere association or presence, the
additional language was factually inappropriate.
5.
On the record in this case, three unrelated errors do not require reversal under the
doctrine of cumulative error.
Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed September 30,
2016. Affirmed.
Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs 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
BEIER, J.: Defendant Kyle Carter appeals his conviction for premeditated first-
degree murder. Carter raises five issues in his appeal, including multiple claims of
prosecutorial misconduct, multiple claims of instructional error, and a claim that
cumulative error compels reversal.
2
As detailed below, we ultimately reject Carter's arguments and affirm his
conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of September 7, 2013, through the early morning hours of
September 8, friends Kyle Carter and Trenton Custer went to a couple of bars before
ending up at Michelle Wilmore's Wichita home.
About 3:45 a.m. Richard Heptig, who lived near Wilmore, found a man named
Carl Cooper on his front porch. Cooper and the porch were covered in blood. Cooper told
Heptig that he had been stabbed by two men who fled in a white truck. Heptig's wife
called 911, and the dispatcher issued a radio call about the stabbing. The call provided
Heptig's address and described the fleeing suspects' vehicle as a white truck.
Cooper later died of his injuries.
Moments after the call went out, an officer saw a white truck only five blocks
from the scene. Because it matched the vehicle description, he stopped the truck. Other
officers arrived to provide backup. The driver and lone occupant was identified as Custer.
When asked if there were any weapons in the car, Custer said there was a knife on the
floor. An officer picked up the knife, unsheathed it, and saw that the blade was bloody.
Custer was arrested.
At 4:02 a.m. defendant Kyle Carter sent Custer the following text message: "Hey
bro I'm sorry if I got out of line on that. I just got alot of anger built up and that was the
time to let some out. But I am sorry. . ."
3
An investigator would later testify that he followed a trail of blood from Heptig's
porch to the College Hill Park pool across the street. Another investigator would measure
the distance from Wilmore's home to the start of the blood trail at 847 feet.
Investigating officers went to Custer's house later the morning of his arrest. They
were looking for Custer's wife, Sara, but found Carter, who had been living in Custer's
house. Carter's name had not yet surfaced. Officers informed Carter that they were
investigating an incident that involved Custer, but they did not mention it was a stabbing.
Officers would later testify that Carter told them he and Custer had gone to a couple of
bars the night before but had separated about 3 a.m. Carter said Custer may have gone to
Wilmore's house. He failed to tell them he had been to Wilmore's house. The officers
communicated that they would be going to Wilmore's house after talking to Carter.
Wilmore would later testify that Carter called her, told her officers were coming to
her house, and asked her to tell them he had not been there. Carter also sent Wilmore a
text message telling her that the officers had said Custer stabbed someone, even though
officers had not yet provided that level of detail to Carter.
Officers arrived at Wilmore's house for the first time before noon. Wilmore had
surveillance cameras that enabled her to see her porch and front yard on a television
screen in her bedroom. Early that morning, she said, she had seen a man breaking into
one of her cars and had seen Custer's truck drive by as the man was running away. She
also said she never saw Custer without Carter, so officers became suspicious that Carter
had been involved as well.
Tracey Mans, the mother of Carter's son, and Sara would both testify later that
they spoke with Carter the morning that officers were investigating. Carter told them that
a man had broken into Wilmore's car early that morning and that Carter "beat him up."
4
Carter also told Sara that the police had arrested Custer and that they thought he had
stabbed someone. Sara decided to call the police station to figure out what was going on.
While officers were en route from Wilmore's house to speak to Carter again, they
received word that Sara had called the police station and reported that Carter had told her
he and Custer had seen someone breaking into a friend's car and had beaten him up and
"punished" him.
Officers then returned to Wilmore's house. They found Carter on her front porch
and arrested him.
The officers also spoke with Wilmore again. She admitted that Carter was at her
house when she observed what she thought was a burglary of her car. She said that Carter
and Custer were together at her house and that they pursued the man breaking into her
car—Carter on foot and Custer in his truck. Wilmore said Carter and Custer returned a
short time later. Carter told her that he had caught the burglar and that the burglar would
not bother her again.
While interviewing Carter, officers noticed that he had blood on the cuticle of his
smallest left finger. A crime scene investigator swabbed the cuticle.
An autopsy conducted on Cooper revealed three stab wounds: one on the middle
of the left side of his back and two on the backside of his left thigh. The wounds
indicated great compressive force. One was more than 6 inches deep and another was 5-
1/2 inches deep, while the murder weapon, the knife found in Custer's truck, had a blade
shorter than 4 inches. Cooper had no defensive wounds on his body.
5
The State charged Carter and Custer with the premeditated first-degree murder of
Cooper. At their joint preliminary hearing, neither testified, and no other witness testified
that Custer had implicated Carter in Cooper's death. The district judge bound both men
over on the murder charge.
Carter's trial began the following April. Before the start of voir dire, the district
judge provided potential jurors with information about serving as a juror, including
qualifications, scheduling, and the "basic tenets of a criminal case." He explained the
State's burden of proof, the presumption of innocence, and then told potential jurors: "It's
only if and when you are convinced beyond a reasonable doubt that what the State alleges
occurred, that they have proven their case, the presumption then leaves the defendant and
then your obligation becomes to vote guilty, if you are convinced beyond a reasonable
doubt."
Prosecutors Justen Phelps and Heather Botter presented the State's case. Among
their witnesses was the investigator who processed Custer's truck. The investigator
photographed the knife found on the floor and determined that its blade was 3-3/4 inches
long. He was unable to locate any fingerprints on the knife. Another of the State's
witnesses was the forensic scientist who performed DNA analysis on the blood from the
knife and from Carter's cuticle. Both samples matched Cooper's DNA.
Carter testified in his own defense. He said that he and Custer went to Wilmore's
house early on the morning of September 8. When Wilmore thought she saw someone on
her surveillance monitor, she asked Carter to check. Carter went to the front door to look
out. He saw a man in her car and yelled, "Get the fuck out of the car," and the man, later
identified as Cooper, ran away. Carter thought he saw something in Cooper's hands, and
so he ran after him.
6
The pursuit was headed toward College Hill Park pool when Custer drove past
Carter in his truck. Carter said he saw Custer pull up to Cooper and jump out. Carter saw
a brief fight between Custer and Cooper and then saw Cooper fall to the ground. Carter
did not see a knife. He kept running toward the two men. When he reached them, Custer
was backing away from Cooper, and Cooper was on the ground. Carter took a right-
handed swing at Cooper but missed. Carter's next swing with his left hand connected to
Cooper's hand. Carter said Cooper ultimately walked away. Carter said he did not see any
blood on Cooper or in the grass; he said he had no idea that Cooper had been stabbed.
Because Custer had already left in his truck, Carter walked back to Wilmore's
house. Custer was there when he arrived. Carter said Custer appeared nervous and was
pacing. Custer left soon after, but Carter remained at Wilmore's. Carter eventually
returned to Custer's house, but Custer was not there. Carter called Sara, looking for
Custer. He told her that a man had broken into a friend's car and said he had beaten the
man up.
Carter testified about his arrest after he had returned to Wilmore's house. When
Carter spoke with officers after his arrest, i.e., the second time during the investigation,
he conceded that he had been at Wilmore's during the night but he claimed to know
nothing about the stabbing and again failed to mention that he had struck Cooper. When
officers confronted him with inconsistencies in his story, he eventually gave more
information but never admitted to punching Cooper. Carter admitted on the stand that he
had not been forthcoming with officers. He said he had not mentioned the car burglary or
the fight between Custer, Cooper, and himself because he "just didn't want to be involved
in it." He acknowledged texting Wilmore that Custer had stabbed somebody despite the
fact that officers had not told him the type of weapon Custer had used. He testified that he
merely assumed it was a stabbing because Custer always carried a knife and never carried
7
a gun. Carter also admitted that he had asked Wilmore to tell officers he had not been at
her house earlier in the morning.
On cross-examination of Carter, Phelps highlighted multiple inconsistencies in the
various versions of events Carter had given to officers. Carter agreed that there were
inconsistencies when he was shown transcripts of earlier interviews. He also admitted
that he had been trying to protect himself.
During the jury instruction conference between counsel and the district judge,
defense counsel objected to the language of the aiding and abetting instruction, claiming
the evidence did not support it. But counsel did not request any different or supplemental
language. The district judge considered the objection and overruled it. The district judge
said he would instruct on premediated first-degree murder and the lesser included offense
of intentional second-degree murder. Defense counsel neither requested any additional
lesser included offense instructions nor objected to the exclusion of any.
When the district judge read the instructions to the jury, the reasonable doubt
instruction included the following language: "If you have no reasonable doubt as to the
truth of each of the claims required to be proved by the State, you should find Kyle Carter
guilty." The district judge instructed the jury to consider first-degree murder and its lesser
included offense of intentional second-degree murder as follows: "If you do not agree
the defendant is guilty of murder in the first degree, you should then consider the lesser
included offense of murder in the second degree." The district judge also instructed the
jury on the definition of premeditation: "Premeditation means to have thought the matter
over beforehand, in other words, to have formed the design or intent to kill before the act.
Although there is no specific time period required for premeditation, the concept of
premeditation requires more than the instantaneous, intentional act of taking another's
life."
8
Phelps argued for the State in closing. He said:
"Ladies and gentlemen, you know what Kyle Carter did at this point. You know
that this is the weapon that was used to murder Carl Cooper. You have seen the pictures.
You have heard from Dr. [Jamie] Oeberst. You know that this knife was used to stab Carl
Cooper not once, not twice, but three times; that it was used to stab Carl Cooper in the
back; that two of those stab wounds were so forceful that they compressed his body twice
the length of the blade, on the one on the left flank. You know that one of them severed
his 12th rib.
"You know that Carl Cooper was taken by surprise. He had no defensive injuries
from trying to shelter himself from the three knife attacks. You know that he had no blunt
force trauma on him from being beaten.
"What you know from the photographs of Carl Cooper is that this defendant and
Trenton Custer stabbed him with three swift, strong strokes of that knife, and that they
committed intentional and premeditated murder."
Phelps then attempted to explain the concept of premeditation to the jury:
"Premeditation is a state of mind. A lot of people think premeditation is Trenton Custer
and Kyle Carter sit down and then go over some type of plan, have some agreement in
place before they commit this killing. That is not—that would be premeditation, but that
is not what is required to prove premeditation. The requirement is the state of mind. This
defendant has to think about the act of killing Carl Cooper before he does it. He has to
consider that this is what he is going to do. It just cannot be instantaneous.
"He had more than two blocks to think about it. We will get into that, but that is
what premeditation means. That is the definition of premeditation. That is what the State
is required to prove; not that they sat down, worked it out, had some type of plan, but that
9
he considered killing Carl Cooper before he did it. That intent was in his mind. It wasn't
something spontaneous. Okay. Let's walk through the evidence."
Phelps continued:
"Again, we are not going to sit here as we talk about the evidence and pretend
like we don't know what happened. We know what happened to Carl Cooper. We know
that he was stabbed three times in the back. That was not some type of altercation or
fight, that this was a complete surprise attack. As soon as they got him, they stabbed him
three times. I'm talking about this evidence. I'm arguing from that perspective. That is
what happened. That is what the evidence shows."
Phelps also addressed Carter's lack of remorse:
"Does he react like someone who was surprised or that this killing of Carl
Cooper was unexpected? Michelle Wilmore tells you that he was calm. She tells police
he was calm. He acted like it was nothing. He is not the one tripping out, trying to bail,
nervous, quiet. That lack of remorse shows you, after the fact, it shows you that before
the killing, he knew what he was doing and he did exactly what he set out to do."
Phelps also attempted to address Carter's multiple versions of events:
"[PROSECUTOR:] How can you believe anything that defendant says[?] It's a third
version of the events. Every time he is confronted with a new piece of evidence, you get
new information from him trying to explain it away. How can you believe anything he
tells you?
"[DEFENSE COUNSEL]: Objection, that is improper argument.
"[DISTRICT JUDGE]: It's getting very close, but I will overrule the objection.
You know the issue about commenting on a witness's credibility.
10
"[PROSECUTOR]: I make that comment in light of the evidence; that he has
given three different versions. I want to make that clear. At what point do we say
enough? At what point do we say that this is just him trying to protect himself?"
Defense counsel argued during closing:
"This is about evidence. This isn't about, you know, they could have called the cops. This
isn't about, you know, I'm going to err on the side of caution. I don't know if he did it or
not, but this is about evidence. This is about you being the type of juror you would want
in your own case.
"[PROSECUTOR]: Completely inappropriate comment, object.
"[DISTRICT JUDGE]: Overruled. . . .
"[PROSECUTOR]: He now places the jurors in the position of the defendant.
"[DISTRICT JUDGE]: What the attorneys say in closing arguments is not
evidence."
During the rebuttal portion of his closing, Phelps discussed aiding and abetting:
"So I think at this point, ladies and gentlemen, you understand how this works.
We try them separately. Kyle Carter says it was Trenton Custer. Trenton Custer says it
was Kyle Carter and, guess what, that is exactly why the law of aiding and abetting
exists.
"Instruction number 7 tells you a person is criminally responsible for a crime if
the person either before or during the commission with the mental culpability required to
commit the crime, intentionally aids another to commit the crime."
11
Phelps also said:
"You know, it's funny that the defense would ask you if you are the type of juror
that you would want to be in your case. The fact of the matter is you are not sitting over
there, and that is about as appropriate as me saying are you the kind of juror that you
would want to be if you were one of Carl Cooper's family members. It's completely
inappropriate.
"Are you the kind of juror [who] is . . . going to look at the evidence in this case
and draw conclusions about what it shows you?"
PROSECUTORIAL MISCONDUCT
Carter's first claim of error on appeal takes issue with several passages in Phelps'
closing argument. Carter asserts he is entitled to reversal because Phelps:
• Encouraged the jury to disregard the district judge's admonition not to
prejudge the case by telling the jury repeatedly that it already knew certain
facts, including some disputed facts, and that it already knew what Carter
had done;
• Misstated the law of premeditation by suggesting that any non-
instantaneous killing is premeditated, including saying that Carter "had
more than two blocks to think about" killing Cooper and "that is what
premeditation means. That is the definition of premeditation";
• Erroneously and illogically argued that Carter's lack of remorse
circumstantially demonstrated the existence of premeditation;
• Referred to an extremely prejudicial fact not in evidence when he stated
that Custer had blamed Carter for Cooper's murder;
12
• Made an improper adverse comment on Carter's decision to testify on his
own behalf and violated a long-standing rule that a prosecutor may not
suggest that a defendant is lying, focusing on Phelps' argument that the jury
could not believe Carter because he had given three varying versions of
events and Phelps' rhetorical "[a]t what point do we say enough?";
• Inappropriately argued that the jury should disregard a ruling from the
district judge on a defense argument about jury members being the type
they would want if they were defendants; and
• Improperly elicited sympathy for the victim's family by comparing defense
counsel's remark to a prosecution request that jurors behave as they would
want jurors to behave if they were members of Cooper's family.
We will take up each of these criticisms of Phelps' closing argument in turn.
Standard of Review
In State v. Sherman, 305 Kan. ___, ___ P.3d ___, 2016 WL 4719688 (2016), filed
September 9, 2016, we announced a new framework for consideration of criminal
defendants' challenges to their convictions and sentences based on the behavior of
prosecutors. Sherman has drawn a distinction between prosecutorial conduct that is
merely negligent or careless and prosecutorial conduct that is intentional or in some way
malicious. 2016 WL 4719688, at *13, 17. Either can lead to closing argument error if it
means that the prosecutor has strayed outside the wide latitude allowed the State's lawyer
when discussing the evidence. Such an error, a violation of the defendant's right to due
process, is subject to appellate court examination for harmlessness under the federal
constitutional standard set forth in Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824,
17 L. Ed. 2d 705 (1967). Sherman, 2016 WL 4719688, at *13-14.
13
Because Sherman was not decided until after this case was argued and fully
submitted for decision, the parties have not had an opportunity to address it. We will
therefore apply our old prosecutorial misconduct framework to the claims advanced here,
noting only that application of the new framework would not make a difference in the
outcome.
Our old framework has been stated often:
"We review such claims even when a contemporaneous objection was not made
at trial. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012), cert. denied 133 S.
Ct. 529 (2012). Our analysis has two steps. First, the court determines whether the
prosecutor's comments were outside the wide latitude that the prosecutor is allowed in
discussing the evidence. If the comments were improper and constituted misconduct, the
appellate court must determine whether the comments prejudiced the jury against the
defendant and denied the defendant a fair trial. State v. Roeder, 300 Kan. 901, 932-33,
336 P.3d 831 (2014), cert. denied 135 S. Ct. 2316 (2015). In the second step, we consider
three factors: (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 minds of jurors. State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078
(2014)[, overruled on other grounds in State v. Dunn, 304 Kan. 807-11, 375 P.3d 332
(2016)]. None of these factors is individually controlling. Before the third factor can ever
override the first two factors, we must be able to say that the harmlessness tests of both
K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967), have been met. Williams, 299 Kan. at 540-41. As a practical matter, however,
if the constitutional harmless error test is met, the statutory test also will be met. See State
v. Lowrance, 298 Kan. 274, 282, 312 P.3d 328 (2013) (when State meets constitutional
harmlessness test it necessarily also meets lower statutory harmlessness test as well).
Under the constitutional test, the party benefitting from the error must demonstrate
beyond a reasonable doubt that the error did not affect the outcome of the trial in light of
the entire record, i.e., there is no reasonable possibility that the error contributed to the
14
verdict. [Williams,] 299 Kan. at 541." State v. Fisher, 304 Kan. 242, 251, 373 P.3d 781
(2016).
Prejudgment of Case
Carter first focuses on what he argues was Phelps' encouragement of
noncompliance with the district judge's admonishment not to form a conclusion about the
case until it was finally submitted for deliberation. The relevant passages read:
"Ladies and gentlemen, you know what Kyle Carter did at this point. You know
that this is the weapon that was used to murder Carl Cooper. You have seen the pictures.
You have heard from Dr. Oeberst. You know that this knife was used to stab Carl Cooper
not once, not twice, but three times; that it was used to stab Carl Cooper in the back; that
two of those stab wounds were so forceful that they compressed his body twice the length
of the blade, on the one on the left flank. You know that one of them severed his 12th rib.
"You know that Carl Cooper was taken by surprise. He had no defensive injuries
from trying to shelter himself from the three knife attacks. You know that he had no blunt
force trauma on him from being beaten.
"What you know from the photographs of Carl Cooper is that this defendant and
Trenton Custer stabbed him with three swift, strong strokes of that knife, and that they
committed intentional and premeditated murder.
....
"Again, we are not going to sit here as we talk about the evidence and pretend
like we don't know what happened. We know what happened to Carl Cooper. We know
that he was stabbed three times in the back. That was not some type of altercation or
fight, that this was a complete surprise attack. As soon as they got him, they stabbed him
three times. I'm talking about this evidence. I'm arguing from that perspective. That is
what happened. That is what the evidence shows."
15
K.S.A. 22-3420(2), the version of the pertinent statute in effect at the time of
Carter's April 2014 trial, required the district judge to admonish the jurors at every break
"that it is their duty not to form or express an opinion thereon until the case is finally
submitted to them." And we have recognized a juror's duty "to keep an open mind until
the case is submitted . . . for deliberation." State v. Hays, 256 Kan. 48, 60, 883 P.2d 1093
(1994). We also have held that there was misconduct when a prosecutor's argument
suggested to a jury that it did not have to keep an open mind. See State v. Armstrong, 299
Kan. 405, 418-19, 324 P.3d 1052 (2014) (prosecutor told jury "'as you sit right there, you
have an opinion, you don't get to share it yet until you deliberate, but you have an
opinion. Every one of you has an opinion right now.'").
According to Carter, Phelps' statements about jurors "knowing" what Carter did
and what the photographs showed was improper because they told jurors they had already
formed an opinion about the case in violation of K.S.A. 22-3420(2). We disagree. When
read in context, Phelps' statements differ from those addressed in our Armstrong
precedent. Phelps was using a figure of speech, "you know what happened," to emphasize
the strength of the evidence that had been presented. He did not suggest that the members
of Carter's jury did not have to keep an open mind; he asserted that the State had proved
its case. Prosecutors may make such assertions. These statements were not outside the
wide latitude afforded a prosecutor when discussing the evidence.
Law of Premeditation
Carter's second criticism of Phelps' closing argument alleges that Phelps
misrepresented the law of premeditation. Phelps told the jury:
16
"Premeditation is a state of mind. A lot of people think premeditation is Trenton Custer
and Kyle Carter sit down and then go over some type of plan, have some agreement in
place before they commit this killing. That is not—that would be premeditation, but that
is not what is required to prove premeditation. The requirement is the state of mind. This
defendant has to think about the act of killing Carl Cooper before he does it. He has to
consider that this is what he is going to do. It just cannot be instantaneous.
"He had more than two blocks to think about it. We will get into that, but that is
what premeditation means. That is the definition of premeditation. That is what the State
is required to prove; not that they sat down, worked it out, had some type of plan, but that
he considered killing Carl Cooper before he did it. That intent was in his mind. It wasn't
something spontaneous. Okay. Let's walk through the evidence."
A prosecutor "cross[es] the line by misstating the law." State v. Raskie, 293 Kan.
906, 917, 269 P.3d 1268 (2012). And a "defendant is denied a fair trial when a prosecutor
misstates the law and the facts are such that the jury could have been confused or misled
by the statement." State v. Hall, 292 Kan. 841, 849, 257 P.3d 272 (2011).
This court has explained premeditation as follows:
"'"'Premeditation means to have thought the matter over beforehand, in other
words, to have formed the design or intent to kill before the act. Although there is no
specific time period required for premeditation, the concept of premeditation requires
more than the instantaneous, intentional act of taking another's life.'" [Citations
omitted.]'" State v. Haberlein, 296 Kan. 195, 205, 290 P.3d 640 (2012).
We have frequently held that a prosecutor has misstated the concept of
premeditation, but often the error has been regarded as harmless. See State v. Kettler, 299
Kan. 448, 474-78, 325 P.3d 1075 (2014) ("half second"); State v. Williams, 299 Kan. 509,
545-48, 324 P.3d 1078 (2014) (same); Hall, 292 Kan. at 850-52, 854-56 (defendant could
17
have "'form[ed] premeditation after the pull of the first trigger, because remember, he
pulls four times'"); cf. State v. Holmes, 272 Kan. 491, 499-500, 33 P.3d 856 (2001)
("premeditation can occur in an instant").
Although here Phelps did not say that premeditation could occur instantaneously,
Carter suggests that the prosecutor argued that any lengthier contemplation necessarily
meant the defendant had acted with premeditation.
Again, when we consider Phelps' statements in context, we disagree with Carter.
See State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011) (context in which
prosecutor makes statement "all-important"). We see no chance from that context that the
jury was confused or misled into the type of binary thinking Carter's counsel is concerned
with. Jurors were told that premeditation could not be formed in an instant; they were not
told that any longer consideration automatically satisfied this element of the crime; they
were merely directed to the evidence that Carter had ample time to premeditate killing
Cooper. See Hall, 292 Kan. at 849 (misstatement of law that could confuse or mislead
jury misconduct). Phelps' statements on premeditation were not outside the wide latitude
afforded a prosecutor in discussing the evidence.
Lack of Remorse
Carter next argues that Phelps' statements that Carter's lack of remorse could give
rise to an inference of premeditation were illogical and unsupported by Kansas law.
Phelps argued, "That lack of remorse shows you, after the fact, it shows you that before
the killing, he knew what he was doing and he did exactly what he set out to do." Phelps
then recounted the timeline of Carter's actions after the dispatcher received the 911 call,
including his statement to Sara that he had "punished" Cooper. Phelps next told the jury
18
that Carter "was proud of what he did. That lack of remorse is evidence that he did
exactly what he wanted to do, which was kill Carl Cooper."
"[P]remeditation and deliberation may be inferred from the established
circumstances of the case, provided the inference is a reasonable one. In such a case, the
jury has the right to make the inference. [Citations omitted]." State v. Jones, 279 Kan.
395, 402-03, 109 P.3d 1158 (2005). Recently, in State v. Phillips, 299 Kan. 479, 498, 325
P.3d 1095 (2014), we reiterated factors that could be considered when determining
whether evidence gives rise to an inference of premeditation. Those factors include:
"'(1) the 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.' [Citations omitted.]" 299 Kan. at 498.
State v. Knox, 301 Kan. 671, 681, 347 P.3d 656 (2015).
We also stated that "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." Phillips, 299 Kan. at 498; Kettler,
299 Kan. at 467.
In our previous cases, a defendant's conduct after a killing indicative of earlier
premeditation has included failure to seek medical attention for the victim, see State v.
Hill, 290 Kan. 339, 363, 228 P.3d 1027 (2010), and attempts to cover up the killing or to
destroy evidence of it, see State v. Alvidrez, 271 Kan. 143, 148-49, 20 P.3d 1264 (2001);
State v. White, 263 Kan. 283, 296, 950 P.2d 1316 (1997).
19
Carter's behavior and statements after Cooper's death that show lack of remorse
are in the same category as the defendant's post-killing conduct in our previous cases and
could be considered by the jury for whatever weight they would bear. Carter's argument
that Phelps' statements on lack of remorse were illogical suffers from the same binary
thinking flaw he alleged with regard to Phelps' statements about the law of premeditation.
The fact that lack of remorse may not always give rise to an inference of premeditation
does not mean it never can. Under the circumstances of this case, Phelps' statements
about the lack of remorse were within the wide latitude afforded a prosecutor in
discussing the evidence.
Reference to Fact Not in Evidence
Carter next argues that Phelps referred to an extremely prejudicial fact not in
evidence by saying, "So I think at this point, ladies and gentlemen, you understand how
this works. We try them separately. Kyle Carter says it was Trenton Custer. Trenton
Custer says it was Kyle Carter and, guess what, that is exactly why the law of aiding and
abetting exists." The record contains no evidence that Custer blamed Carter for Cooper's
death.
All lawyers, especially prosecutors, are prohibited from referring to facts that are
not in evidence. State v. Akins, 298 Kan. 592, 601, 315 P.3d 868 (2014). Such remarks
from prosecutors are "troubling 'because of jurors' tendency to overvalue what is
effectively unsworn testimony by a highly regarded prosecutor, despite the information's
worthlessness as a matter of law.' Chanthaseng, 293 Kan. at 147." Akins, 298 Kan. at
605.
We have held such unsupported statements to be prosecutorial misconduct when
they dealt with defense counsel's level of experience and when they referred to a protocol
20
for interviewing children in cases of suspected sexual abuse as a "gold standard." See
State v. Knox, 301 Kan. 671, 684, 347 P.3d 656 (2015); Akins, 298 Kan. at 601.
In this case, the State attempts to defend Phelps' statement as "simply explaining
that the law of aiding and abetting exists for situations in which multiple defendants point
the finger at one another in an attempt to avoid criminal liability." This may be correct as
a general proposition, but that proposition begs the question. There still was no evidence
that Custer ever said Carter fatally stabbed Cooper; this was a fact not in evidence, and
Phelps' assertion to the contrary was misconduct and error.
Because we hold that there was error, we must move to the second step of our
prosecutorial misconduct analysis. Did the error qualify as reversible plain error? Did it
prejudice the jury and deny Carter a fair trial? Again, we consider three factors: whether
the prosecutor's conduct was gross and flagrant, whether it evidenced ill will, and
whether the evidence was so direct and overwhelming that the misconduct would have
had little weight in the minds of jurors. See State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204
(2004).
Carter makes a successful argument that this remark by Phelps was gross and
flagrant conduct, because the rule that closing argument cannot rely on a fact not in
evidence is so old and so familiar. See State v. Barber, 302 Kan. 367, 380, 353 P.3d 1108
(2015) (violation of well-established law may lead to conclusion of misconduct). But the
two other factors we examine on harmlessness analysis cut against reversibility. Phelps'
remark was brief, unrepeated, and unemphasized. It appears to have been a spur-of-the
moment, clumsy illustration of aiding and abetting rather than a crafty, deliberate tactic to
obtain a conviction on the strength of nonexistent evidence. See 302 Kan. at 380 (ill will
evidenced by deliberate conduct). We detect no ill will. In addition, although there was
no direct evidence of who was holding the knife when Cooper was stabbed, there was
21
overwhelming evidence of Carter's participation in the chase and the attack, of sufficient
time and opportunity for him to have formed premeditation, and of his incriminating
behavior and statements later in the day of the murder. Under these circumstances,
considering our three harmlessness criteria under the more demanding federal
constitutional standard, the State has demonstrated beyond a reasonable doubt that the
single error did not affect the outcome of the trial in light of the entire record; there is no
reasonable possibility that the error contributed to the verdict. See Williams, 299 Kan. at
541.
Adverse Comments on Carter's Choice to Testify, Credibility
Carter next suggests that Phelps commented negatively on Carter's decision to
testify and gave an improper personal view on Carter's credibility during the following
exchange:
"[PROSECUTOR:] How can you believe anything that defendant says[?] It's a third
version of the events. Every time he is confronted with a new piece of evidence, you get
new information from him trying to explain it away. How can you believe anything he
tells you?
"[DEFENSE COUNSEL]: Objection, that is improper argument.
"[DISTRICT JUDGE]: It's getting very close, but I will overrule the objection.
You know the issue about commenting on a witness's credibility.
"[PROSECUTOR]: I make that comment in light of the evidence; that he has
given three different versions. I want to make that clear. At what point do we say
enough? At what point do we say that this is just him trying to protect himself?"
22
We discuss Carter's argument that Phelps commented negatively on Carter's
decision to testify first.
When a "prosecutor . . . clearly suggest[s] to the jury that [a defendant] should
have acceded to the State's evidence and waived his right to a jury trial because of the
strength of the State's evidence against him," we have held that the prosecutor's statement
fell outside the wide latitude afforded a prosecutor. State v. Killings, 301 Kan. 214, 231,
340 P.3d 1186 (2015); see also State v. Snow, 282 Kan. 323, 336-39, 144 P.3d 729 (2006)
(prosecutor's argument that "'[n]ow, the defendant wants his jury trial, he's had his jury
trial, and it[']s time to put an end to this nonsense'" was misconduct), disapproved of on
other grounds by State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012); Tosh, 278 Kan. at
90-92 (prosecutor's argument asking jury to "'[t]hink about two things. Number one, why
are they bothering to do this when the Defendant confessed? And number two, is there
any evidence that it didn't happen? Is there any evidence that the things she told you
didn't happen?'" was misconduct). But a prosecutor is permitted to comment on
inconsistencies in a defendant's statements. See State v. Elnicki, 279 Kan. 47, 63, 105
P.3d 1222 (2005).
We do not see a negative comment on Carter's decision to testify in the exchange
quoted above. Rather, Phelps' statements were fair comment on the evidence,
specifically, Carter's multiple changing versions of events.
Turning to Carter's argument that the quoted passage contains Phelps' expression
of an unflattering personal opinion on Carter's credibility, we note first that a prosecutor
is forbidden from accusing a defendant of lying. See State v. Brown, 300 Kan. 542, 560,
331 P.3d 781 (2014). And
23
"[t]he prohibition extends not only to using the word 'lie' but also to its 'derivative.' See
State v. Elnicki, 279 Kan. 47, 62, 105 P.3d 1222 (2005) (prosecutor called defendant's
testimony a 'fabrication,' 'yarn,' 'final yarn,' 'the yarn spun here,' and 'four-part yarn'); see
also Akins, 298 Kan. at 607 (prosecutor asked did the jury 'buy' defendant's story and said
his testimony was 'not credible')." Brown, 300 Kan. at 560.
"Nevertheless, a prosecutor has '"freedom . . . to craft an argument that includes
reasonable inferences based on the evidence"' and '"when a case turns on which version
of two conflicting stories is true, [to argue] certain testimony is not believable."' State v.
King, 288 Kan. 333, 352, 204 P.3d 585 (2009) (quoting Davis, 275 Kan. at 121); Pabst,
268 Kan. at 507. For example, it is not improper for a prosecutor to offer 'comments
during closing arguments regarding the witness' motivations to be untruthful.' King, 288
Kan. at 353; see State v. McReynolds, 288 Kan. 318, 326, 202 P.3d 658 (2009) (A
prosecutor may offer 'the jury an explanation of "what it should look for in assessing
witness credibility."'); State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) (same).
But a prosecutor must do so by basing the comment on evidence and reasonable
inferences drawn from that evidence and without stating his or her own personal opinion
concerning a witness' credibility or accusing a witness or defendant of lying. See State v.
Akins, 298 Kan. 592, 606-08, 315 P.3d 868 (2014); State v. Marshall, 294 Kan. 850, 857,
281 P.3d 1112 (2012); King, 288 Kan. at 353; Elnicki, 279 Kan. at 60-62; Davis, 275
Kan. at 121; Pabst, 268 Kan. at 506-07." Armstrong, 299 Kan. at 427.
Carter's credibility-based criticism of the quoted passage also has no merit. Carter
admitted that he had given three versions of events, that he had provided new information
each time he was confronted with evidence, and that he told different stories to protect
himself; Phelps' argument about Carter's own testimony was proper comment on this
compelling evidence. See Armstrong, 299 Kan. at 427-29. Phelps' statements in the
quoted passage were well within the wide latitude afforded a prosecutor during closing
argument.
24
Encouragement to Disregard District Judge's Ruling
Carter's next two claims of prosecutorial misconduct are rooted in the following
exchange:
"[DEFENSE COUNSEL:] This is about evidence. This isn't about, you know, they could
have called the cops. This isn't about, you know, I'm going to err on the side of caution. I
don't know if he did it or not, but this is about evidence. This is about you being the type
of juror you would want in your own case.
"[PROSECUTOR]: Completely inappropriate comment, object.
"[DISTRICT JUDGE]: Overruled.
"[PROSECUTOR]: He now places the jurors in the position of the defendant.
"[DISTRICT JUDGE]: What the attorneys say in closing arguments is not
evidence."
Later, in the rebuttal portion of his closing argument, Phelps said:
"You know, it's funny that the defense would ask you if you are the type of juror
that you would want to be in your case. The fact of the matter is you are not sitting over
there, and that is about as appropriate as me saying are you the kind of juror that you
would want to be if you were one of Carl Cooper's family members. It's completely
inappropriate.
"Are you the kind of juror [who] is . . . going to look at the evidence in this case
and draw conclusions about what it shows you?"
25
Carter claims Phelps' rebuttal statements encouraged the jury to disregard the
district judge's ruling on the State's objection to defense counsel's closing argument.
A prosecutor may not tell a jury to disregard a district judge's instructions. See
State v. McCorkendale, 267 Kan. 263, 282, 979 P.2d 1239 (1999) (error when prosecutor
told jury it did not "even have to consider those lesser[]" included offense instructions
because they were "thrown in to confuse you; don't consider them").
But the district judge in this case did not give an explicit instruction that Phelps
told the jury to ignore. The judge did not even give an unequivocal endorsement to
defense counsel's argument. Despite overruling Phelps' virtually content-free objection of
"inappropriate," the judge communicated to jurors that they could properly leave aside
defense counsel's suggestion that they deliberate upon Carter's fate as they wished theirs
to be deliberated upon. When the suggestion was challenged, the judge pointedly stated
that attorney argument was not evidence. Later, Phelps echoed the judge. He correctly
redirected the jury to its duty to consider only evidence. Again, this is well within the
wide latitude afforded to prosecutors.
Invocation of Juror Sympathy for Cooper's Family
Carter's second challenge to Phelps' rebuttal argument is that the prosecutor
improperly tried to elicit sympathy for Cooper's family members.
"[I]t is well known that jurors 'must decide a case on evidence and controlling law,
and not on sympathy, emotion, or prejudice.' [Citation omitted.]" State v. Holt, 300 Kan.
985, 992, 336 P.3d 312 (2014). Thus prosecutors are prohibited from making "'statements
that inflame the passions or prejudices of the jury or distract the jury from its duty to
make decisions based on the evidence and the controlling law.' [Citation omitted.]" 300
26
Kan. at 992. This court has held that a prosecutor committed misconduct, for example, by
asking a jury to think of a victim's mother on Mother's Day, State v. Henry, 273 Kan.
608, 640-41, 44 P.3d 466 (2002), and to consider that the defendant's actions left two
small boys without a father, Holt, 300 Kan. at 992-93.
Phelps' reference to Cooper's family was not remotely similar to the comments we
have held to be misconduct in earlier cases. He actively discouraged jurors from behaving
in a way that made Cooper's family or their presumed grief a factor in deliberations on
Carter's guilt. There is simply no merit to this, the last, of Carter's prosecutorial
misconduct claims.
PRELIMINARY STATEMENT ON REASONABLE DOUBT
Carter takes issue with one of the district judge's statements to potential jurors
before voir dire, "It's only if and when you are convinced beyond a reasonable doubt that
what the State alleges occurred, that they have proven their case, the presumption then
leaves the defendant and then your obligation becomes to vote guilty, if you are
convinced beyond a reasonable doubt."
Carter did not object to this statement at the time.
"Generally, issues not raised before the trial court cannot be raised on appeal. State v.
Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). When dealing with instructions given
at the close of the evidence, Kansas statute mandates that we review errors asserted for
the first time on appeal for clear error. See K.S.A. 22-3414(3). There is no parallel statute
setting forth our standard of review for claimed errors in a trial court's preliminary
instructions.
27
"We have held, however, that the clearly erroneous standard along with its
availability as an exception to the contemporaneous objection rule predates its statutory
codification. State v. Williams, 295 Kan. 506, 510-12, 286 P.3d 195 (2012). Thus, we
have always reviewed unpreserved claims of instructional error—regardless of when the
alleged error occurred during the trial process—for clear error. Sams v. Commercial
Standard Ins. Co., 157 Kan. 278, 287, 139 P.2d 859 (1943) ('[T]he general rule is that
where no objection is made to the giving of an instruction during the trial and no request
was made for its modification or clarification and such instruction is not clearly
erroneous a litigant cannot be heard to complain on appeal.'). Finally, the clear error
standard is in reality a heightened standard of harmlessness. Williams, 295 Kan. at 511
(clear error standard 'more akin to stating a harmless error test than a standard of review').
Thus, we must first determine whether the claimed error in the preliminary instructions
was legally and factually appropriate." State v. Tahah, 302 Kan. 783, 793-94, 358 P.3d
819 (2015), cert. denied 136 S. Ct. 1218 ( 2016).
This court addressed an instruction with similar wording in State v. Smith-Parker,
301 Kan. 132, 340 P.3d 485 (2014). In that case, jurors were instructed that they "will"
find the defendant guilty if they have no reasonable doubt on the elements of the crime.
301 Kan. at 163. We described such a statement, telling a jury it "must" or "will" find a
defendant guilty, as flying "too close to the sun of directing a verdict for the State. A
judge cannot compel a jury to convict, even if it finds all elements proved beyond a
reasonable doubt." 301 Kan. at 164.
Here, the State attempts in vain to distinguish the district judge's use of the word
"obligation" from the "must" or "will" of Smith-Parker. An obligation is a "legal or moral
duty to do or not do something." Black's Law Dictionary 1242 (10th ed. 2014). Telling a
jury it has an obligation to find a defendant guilty also all but directs a verdict for the
State, and it is error.
28
But a timing distinction makes a significant difference here. The error in Smith-
Parker surfaced at the end of trial, as deliberations began. Carter's error occurred before
voir dire began. And, at the close of evidence, the district judge provided the jury a
proper reasonable doubt instruction orally and in writing: "If you have no reasonable
doubt as to the truth of each of the claims required to be proved by the State, you should
find Kyle Carter guilty." The effect of any error before voir dire would have been
tempered and quite likely erased by the later correct instruction. See State v. Williams,
299 Kan. 509, 548, 324 P.3d 1078 (2014) (jury presumed to follow instructions). Carter
cannot meet the clear error standard for reversal based on the district judge's early, single
mistake.
LESSER INCLUDED OFFENSE INSTRUCTIONS
Carter also complains that the district judge erred in failing to instruct the jury sua
sponte on reckless second-degree murder and voluntary manslaughter.
Because Carter did not request or object to the failure to give these instructions,
this court's review of the issue is again guided by K.S.A. 2015 Supp. 22-3414(3)'s clear
error standard. Our analysis follows this pattern:
"When analyzing jury instruction issues, we follow a three-step process:
'(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 of the claim to determine whether error
occurred below; and (3) assessing whether the error requires reversal, i.e.,
whether the error can be deemed harmless.' State v. Williams, 295 Kan. 506, 510,
286 P.3d 195 (2012).
29
"Our first and third step are interrelated in that whether a party has preserved a
jury instruction issue will affect our reversibility inquiry at the third step." State v. Bolze-
Sann, 302 Kan. 198, 209, 352 P.3d 511 (2015).
Regarding the first step, Carter's silence on this issue at the time of trial does not
deprive us of jurisdiction to consider it. See K.S.A. 2015 Supp. 22-3414(3); State v.
Waggoner, 297 Kan. 94, 97, 298 P.3d 333 (2013) ("failure to object to an instruction does
not prevent appellate review").
On the second step, determining whether there was any error, we consider whether
the subject instruction was legally and factually appropriate. See State v. Barber, 302
Kan. 367, 377, 353 P.3d 1108 (2015). A reviewing court "'should use an unlimited review
to determine whether the instruction was legally appropriate.'" State v. Brownlee, 302
Kan. 491, 511, 354 P.3d 525 (2015) (quoting State v. Plummer, 295 Kan. 156, Syl. ¶ 1,
283 P.3d 202 [2012]). When analyzing whether the instruction is factually appropriate,
"'the court should determine whether there was sufficient evidence, viewed in the light
most favorable to the defendant or the requesting party, that would have supported the
instruction.'" Brownlee, 302 Kan. at 511 (quoting Plummer, 295 Kan. 156, Syl. ¶ 1).
Carter's jury received a lesser included instruction on intentional second-degree
murder. This court has recognized five degrees of homicide, in descending order of
seriousness: capital murder, first-degree murder, second-degree murder, voluntary
manslaughter, and involuntary manslaughter. State v. Cheever, 295 Kan. 229, 258-59,
284 P.3d 1007 (2012) (adding capital murder to homicide hierarchy), vacated on other
grounds and remanded 571 U.S. ___, 134 S. Ct. 596, 187 L. Ed. 2d 519 (2013). Based on
this hierarchy, reckless second-degree murder and voluntary manslaughter are both lesser
included offenses of first-degree murder under K.S.A. 2015 Supp. 21-5109(b)(1). Each
30
was therefore legally appropriate. See Killings, 301 Kan. at 222. We now turn to the
question of whether either was factually appropriate.
Reckless Second-Degree Murder
Reckless second-degree murder is the killing of a human being committed
unintentionally but recklessly under circumstances that manifest extreme indifference to
the value of human life. K.S.A. 2015 Supp. 21-5403(a)(2).
"With regard to whether such an instruction would have been factually
appropriate, this court stated in State v. Deal, 293 Kan. 872, 884, 269 P.3d 1282 (2012),
that second-degree reckless murder is a killing of a human that is not purposeful, willful,
or knowing but which results from an act performed with knowledge that the victim is in
imminent danger, although death is not foreseen." Killings, 301 Kan. at 225-26.
This court has often had the opportunity to consider whether a reckless second-
degree murder instruction was factually appropriate. And we have consistently held that
the instruction is not appropriate when the only inference supported by the evidence is
that the defendant intended to kill his or her victim. See Killings, 301 Kan. at 227
(defendant went to victim's apartment to "exact revenge"; pointed gun at victim; taunted
victim; fired multiple shots at victim); State v. Maestas, 298 Kan. 765, 780, 316 P.3d 724
(2014) (defendant "saw his mother asleep in her bed before he entered her room and
stabbed her approximately 150 times in the head, neck, and chest, even as she pleaded
with him to stop"); State v. Cavaness, 278 Kan. 469, 477, 101 P.3d 717 (2004) (defendant
beat, tortured victim); State v. Calderon, 270 Kan. 241, 256, 13 P.3d 871 (2000)
(defendant stabbed victim in stomach, severing aorta; defendant's self-serving statement
that he meant only to stab victim's arm insufficient to justify reckless second-degree
murder instruction); State v. Clark, 261 Kan. 460, 466, 931 P.2d 664 (1997) (muzzle of
gun "closely pressed against" victim's temple when defendant fired shot; defendant's self-
31
serving statement that gun accidentally contacted victim's head and went off insufficient
to justify reckless second-degree murder instruction); see also State v. Longoria, 301
Kan. 489, 514-16, 343 P.3d 1128 (2015) (factual appropriateness of instruction not
addressed; defendant could not establish any error clear).
This court also has had multiple opportunities to consider the sufficiency of
evidence supporting a conviction for reckless second-degree murder. We have held that
evidence was sufficient to show a defendant's knowledge of imminent danger although
death was not necessarily foreseen when a defendant beat a victim with a crowbar, State
v. Deal, 293 Kan. 872, 885-86, 269 P.3d 1282 (2012); when a defendant fired into
darkness in the direction of a vehicle he knew to be occupied, State v. Cordray, 277 Kan.
43, 56, 82 P.3d 503 (2004); and when a defendant shot randomly and without aiming,
State v. Jones, 27 Kan. App. 2d 910, 915, 8 P.3d 1282 (2000).
The State's argument on this issue concentrates on the number and depth of
Cooper's wounds, one in the back and two in the thigh, but we must focus on whether
Cooper's "killing [was] intentional or unintentional, not on whether a deliberate and
voluntary act leads to death." Deal, 293 Kan. at 885. This standard demands that we look
at all of the events leading to the stabbing. Those events include Carter and Custer
witnessing Cooper breaking into their friend's car, their pursuit of him, and the brief
physical fight in which someone stabbed Cooper three times. Carter and Custer then left
the scene. These facts lead us to hold that a jury could reasonably have found that Carter
acted recklessly, and an instruction on reckless second-degree murder was factually
appropriate.
The third step of our analysis requires us to consider reversibility. Carter must
firmly convince us that "'the jury would have reached a different verdict'" had the
instruction been given. Smith-Parker, 301 Kan. at 164.
32
Carter has not met this burden. Although a reasonable jury could have reached a
different verdict, the amount of time the pursuit required, the extreme force with which
Cooper's wounds were inflicted, and the callousness Carter voiced and displayed are
among the pieces of evidence that undercut any claim that Carter's jury would have
reached a different verdict had it been instructed on reckless second-degree murder.
We also are persuaded to hold there is no clear error by the logic behind what used
to be referred to as the "skip rule." See State v. Williams, 303 Kan. 585, 599-600, 363
P.3d 1101 (2016). The substance of the skip rule is that '"[w]hen a lesser included offense
has been the subject of an instruction, and the jury convicts of the greater offense, error
resulting from failure to give an instruction on another still lesser included offense is
cured."' State v. Horn, 278 Kan. 24, 43, 91 P.3d 517 (2004) (quoting Easter v. State, 306
Ark. 615, 620, 816 S.W.2d 602 [1991]). Strictly speaking, reckless second-degree murder
is not "another still lesser included offense" of intentional second-degree murder. But
intentional second-degree murder and reckless second-degree murder are assigned
different severity levels, see K.S.A. 2015 Supp. 21-5403(b) (intentional severity level 1,
person felony; reckless severity level 2, person felony), with reckless designated as the
less serious crime. State v. Bernhardt, 304 Kan. 460, 474, 372 P.3d 1161 (2016). Carter's
jury received an instruction on intentional second-degree murder and it was, as is typical,
instructed to consider the possible crimes of conviction in the order of severity, highest to
lowest. The fact that Carter's jury found him guilty of premeditated first-degree murder
means it never reached intentional second-degree murder and, likewise, would not have
reached reckless second-degree murder. Reversal for the judge's failure to instruct sua
sponte on reckless second-degree murder is not required.
33
Voluntary Manslaughter
Carter also argues he was entitled to a jury instruction on voluntary
manslaughter—specifically, the form defined as "knowingly killing a human being
committed . . . [u]pon a sudden quarrel or in the heat of passion." K.S.A. 2015 Supp. 21-
5404(a)(1).
This court has recently explained:
"'"Sudden quarrel is one form of provocation for 'heat of passion' and is not separate and
apart from 'heat of passion.'"' State v. Johnson, 290 Kan. 1038, 1047, 236 P.3d 517
(2010) (quoting State v. Coop, 223 Kan. 302, 307, 573 P.2d 1017 [1978]). The
provocation—whether it be 'sudden quarrel' or some other form of provocation—must be
sufficient to cause an ordinary person to lose control of his or her actions and reason.
Johnson, 290 Kan. at 1047. The test is objective, not subjective. State v. Hill, 290 Kan.
339, 356, 228 P.3d 1027 (2010). In addition, we have defined 'heat of passion' as '"'any
intense or vehement emotional excitement of the kind prompting violent and aggressive
action.'" [Citations omitted.]' Wade, 295 Kan. at 925. 'The hallmark of heat of passion is
taking action upon impulse without reflection.' 295 Kan. at 925. It '"includes an
emotional state of mind characterized by anger, rage, hatred, furious resentment, or
terror."' Coop, 223 Kan. 302, Syl. ¶ 1." State v. Story, 300 Kan.702, 711, 334 P.3d 297
(2014).
"In order that a court be required to instruct on voluntary manslaughter
committed in the heat of passion, the evidence must show that the heat of passion alleged
resulted from severe provocation sufficient to cause an ordinary person to lose control of
his or her actions or reason. See State v. Follin, 263 Kan. 28, 34, 947 P.2d 8 (1997). The
provocation must consist of more than mere words or gestures. State v. Clark, 261 Kan.
460, 467, 931 P.2d 664 (1997)." State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
34
Carter argues the evidence in his case showed sufficient provocation because he
had witnessed Cooper burglarizing the vehicle of his close friend. This is plainly
inadequate to meet the objective standard. "The passion aroused by the provocation must
be sufficiently extreme to dethrone reason and prevent cool reflection." 2 Torcia,
Wharton's Criminal Law § 156 (15th ed. 1994). Moreover, Carter never testified that,
even subjectively, he was overcome by heat of passion; he testified only that he was
"dumbfounded" by Cooper's action. Dumbfounded is not deprived of reason. A voluntary
manslaughter instruction was not factually appropriate.
AIDING AND ABETTING INSTRUCTION
Carter also challenges the adequacy of an additional aiding and abetting
instruction given in his case, arguing the district judge should have added that "mere
association or presence is insufficient to establish guilt as an aider or abettor." His failure
to seek the additional language at trial does not deprive us of jurisdiction but makes clear
error the applicable standard. See K.S.A. 2015 Supp. 22-3414(3); Waggoner, 297 Kan. at
97.
The additional language is, in general, a correct statement of Kansas law. See State
v. Hilt, 299 Kan. 176, 185, 322 P.3d 367 (2014); State v. Jefferson, 297 Kan. 1151, 1167-
68, 310 P.3d 331 (2013). And Carter is not the first defendant to challenge its exclusion
from an instruction. See, e.g., State v. Edwards, 291 Kan. 532, 551-52, 243 P.3d 683
(2010) (refusal to include language not reversible); State v. Holt, 285 Kan. 760, 771-72,
175 P.3d 239 (2008) (refusal to include language not error); State v. Davis, 283 Kan. 569,
581-83, 158 P.3d 317 (2006) (refusal to include language not reversible). Recently we
have gone so far as to describe inclusion of the language as "the better practice" and
cautioned that "failure to do so may imperil convictions in future similar cases. See State
v. Llamas, 298 Kan. 246, 258-62, 311 P.3d 399 (2013)." Hilt, 299 Kan. at 185-86.
35
The problem for Carter is that his case does not qualify as "similar." The
additional language would have been factually inappropriate here. According to Carter's
own testimony, he was not merely present or associated with Custer. He actively
participated in chasing and accosting and beating Cooper. He denied knifing him. But he
was far more than one who innocently found himself in the wrong place with the wrong
person at the wrong time.
CUMULATIVE ERROR
Carter's final appellate issue is based on the doctrine of cumulative error.
"Cumulative error, considered collectively, may be so great as to require reversal
of a defendant's conviction. The test is whether the totality of the circumstances
substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial
error may be found under the cumulative error doctrine if the evidence against the
defendant is overwhelming. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009)." State
v. Hart, 297 Kan. 494, 513-14, 301 P.3d 1279 (2013).
We have identified three errors: the prosecutor's reference to a fact not in
evidence, the district judge's erroneous preliminary statement on reasonable doubt, and
the omission of an instruction on reckless second-degree murder. None of these errors is
reversible standing alone.
Given the abundant evidence against Carter, even when the three errors are
considered together, they do not necessitate reversal. The errors were not mutually
reinforcing; the prosecutor's misconduct was brief and unrepeated; the judge's pre-
deliberation reasonable doubt instruction undoubtedly had a curative impact on his
preliminary misstatement; and the jury's choice to convict of the greatest offense rather
36
than a functional intervening lesser included offense of intentional second-degree murder
showed it would not have been affected by inclusion of a reckless second-degree murder
instruction. See State v. Tully, 293 Kan. 176, 205-06, 262 P.3d 314 (2011) (efficacy of
remedial efforts, interrelationship of errors relevant to cumulative error analysis). Carter
was not entitled to a perfect trial, and he received a fair one. See State v. Todd, 299 Kan.
263, 286-87, 323 P.3d 829 (2014).
CONCLUSION
Defendant Kyle Carter has not persuaded this court that his conviction for
premeditated first-degree murder was infected by reversible error. The judgment of the
district court is affirmed.
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