State v. Killings

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,021

STATE OF KANSAS,
Appellee,

v.

TREVEJON M. KILLINGS,
Appellant.

SYLLABUS BY THE COURT

1.
Second-degree intentional murder is a lesser included offense of premeditated
first-degree murder because the only difference between the two crimes is the element of
premeditation.

2.
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. Further, it is not necessary
that there be direct evidence of either intent or premeditation. Instead, premeditation,
deliberation, and intent may be inferred from the established circumstances of a case,
provided the inferences are reasonable. In other words, intent may be shown by
circumstantial evidence, and a person is presumed to intend all the natural consequences
of his or her acts.

1
3.
Kansas caselaw identifies factors to consider in determining whether
circumstantial evidence gives rise to an inference of premeditation. These factors include:
(1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant's conduct
before and after the killing; (4) the 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. 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. Use of a deadly weapon by
itself, however, is insufficient to establish premeditation.

4.
Second-degree reckless murder is the killing of a human being committed
unintentionally but recklessly under circumstances manifesting extreme indifference to
the value of human life. In other words, 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.
Second-degree reckless murder is a lesser included offense of premeditated first-degree
murder.

5.
Prosecutors enjoy wide latitude in crafting closing arguments. This latitude allows
a prosecutor to make reasonable inferences based on the evidence, but it does not extend
so far as to permit arguing facts not in evidence. For instance, prosecutors are not allowed
to make 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.
Arguments must remain consistent with the evidence. If they are not, the first prong of
the prosecutorial misconduct test is met, and an appellate court must then consider
2
whether the misstatement prejudiced the jury against the defendant and denied the
defendant a fair trial.

6.
It is improper for a prosecutor to suggest during closing arguments that the
defendant should have waived his or her right to a jury trial based on the strength of the
State's evidence.

7.
It is improper for a prosecutor to attempt to shift the burden of proof to the
defendant or to misstate the legal standard of the burden of proof. But prosecutors are
granted considerable latitude to address the weaknesses of the defense.

8.
When a prosecutor's comment constitutes only a general question about the
absence of evidence to rebut the State's witnesses and not an impermissible remark about
the defendant's failure to testify or an attempt to shift the burden of proof to the defense,
the comment is within the wide latitude afforded to the prosecution.

9.
A prosecutor does not shift the burden of proof by pointing out a lack of evidence
to support a defense or to corroborate a defendant's argument regarding holes in the
State's case.

10.
It is improper for a prosecutor to offer his or her personal opinion as to the
credibility of a witness, including the defendant. A prosecutor, however, may explain the
legitimate factors which a jury may consider in assessing witness credibility and may
3
argue why the factors present in the current case should lead to a compelling inference of
truthfulness.

11.
It is proper for a prosecutor to argue that, based on the evidence, the defendant, by
providing an implausible alibi, was not taking responsibility for his or her actions and the
jury should hold the defendant accountable.

12.
A criminal defendant has a constitutional and statutory right to be present at all
critical stages of his or her trial. A conference between a trial judge and a juror is
considered a critical stage of a trial. Furthermore, K.S.A. 22-3420(3) requires that any
question from the jury concerning the law or evidence pertaining to the case must be
answered in open court in the defendant's presence unless the defendant is voluntarily
absent.

13.
Kansas' statutory procedure for imposing a hard 50 life sentence as provided in
K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution as
interpreted in Alleyne v. United States, 570 U.S. __, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013), because it permits a judge to find by a preponderance of the evidence the
existence of one or more aggravating factors necessary to impose an increased mandatory
minimum sentence rather than requiring a jury to find the existence of the aggravating
factors beyond a reasonable doubt.

14.
The propriety of retroactively applying the amended hard 50 sentencing scheme
set forth in K.S.A. 2013 Supp. 21-6620 after an appellate court vacates a hard 50 life
4
sentence imposed pursuant to K.S.A. 21-4635 will not be ripe for appellate review until a
prosecutor chooses to pursue such a sentence upon remand for resentencing.

15.
An inmate who has received an off-grid indeterminate life sentence can leave
prison only if the Kansas Prisoner Review Board grants the inmate parole. Therefore, a
sentencing court has no authority to order a term of lifetime postrelease supervision in
conjunction with an off-grid indeterminate life sentence.

Appeal from Shawnee District Court; CHERYL RIOS KINGFISHER, judge. Opinion filed January
16, 2015. Conviction affirmed, sentence vacated, and case remanded with directions.

Christina M. Kerls, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: A jury found Trevejon Killings guilty of premeditated first-degree
murder, and he received a sentence of life in prison without the possibility of parole for
50 years (hard 50 life sentence).

On direct appeal before this court, Killings argues: (1) The district court erred by
failing to instruct the jury on second-degree intentional murder and second-degree
reckless murder as lesser included offenses of premeditated first-degree murder; (2) the
prosecutor committed misconduct during his closing arguments; (3) the district court
erred by answering a juror's question when Killings was not present; (4) the cumulative
5
effect of these alleged trial errors denied him a fair trial; (5) the district court, for multiple
reasons, erred when it imposed a hard 50 life sentence; and (6) the district court erred by
imposing lifetime postrelease supervision instead of lifetime parole.

We conclude that the district court applied the wrong legal standard when it
denied Killings' request for a jury instruction on second-degree intentional murder. But,
we find that this error was harmless considering the overwhelming amount of evidence
establishing that the victim's death resulted from a premeditated killing. We also
conclude that the prosecutor's comment during closing argument stating that Killings
failed to take responsibility for the murder was improper, but we find that the comment
did not constitute reversible error. The other alleged trial errors raised in this appeal have
no merit and, thus, we affirm Killings' premeditated first-degree murder conviction.

Killings also challenges the constitutionality of his hard 50 life sentence, which
was imposed under K.S.A. 21-4635, as violating his right to a jury trial as guaranteed by
the Sixth Amendment to the United States Constitution. We vacate the hard 50 life
sentence as required by Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 2155,
2160-63, 186 L. Ed. 2d 314 (2013), and State v. Soto, 299 Kan. 102, 124, 322 P.3d 334
(2014) (K.S.A. 21-4635 violates Sixth Amendment because it permits judge to find by
preponderance of the evidence existence of aggravating factor necessary to impose
increased mandatory minimum sentence, rather than requiring a jury to make that finding
beyond a reasonable doubt). We remand the case to the district court for resentencing.

FACTS

During the evening of January 21, 2010, Antonio Jackson (a/k/a/ "Ghost") was
shot and killed inside Bobbie McCray's apartment in Topeka. Prior to the murder,
McCray was hosting a get-together at her apartment where Jackson, McCray, and three
6
others were consuming crack cocaine in McCray's bedroom. While this was going on,
Deborah Metcalf, Brenda Moore, and Moore's 2-year-old son remained in the front of the
apartment where the living room and kitchen were located.

After consuming his allotment of crack, Jackson asked the group whether they
knew where he could barter marijuana (which he had) for more crack. McCray said she
could make the trade for Jackson, so she took Jackson's marijuana, left the apartment, and
walked the short distance north up the alley to Killings' home.

When McCray arrived at the residence, Killings let her inside and agreed to
exchange some crack cocaine for the marijuana she had. After making the trade, Killings
asked McCray who was at her apartment. McCray named each individual there, including
Jackson. Notably, Jackson and another individual with the street name of "R.P." had
robbed Killings inside his home on December 22, 2009. After hearing that Jackson was at
McCray's apartment, Killings asked McCray if he could accompany her back to her
apartment. McCray agreed, and the two of them left Killings' home and walked back to
her apartment.

On their way to the apartment, a Topeka police vehicle drove up the alley towards
them. Corporal Chris Sturgeon was riding in the vehicle and saw McCray (whom he
recognized from previous encounters) and a black male walking with her. As the vehicle
slowly passed by them and continued down the alley, Sturgeon said, "Hi" or "Hey,
Bobbie" to McCray. Sturgeon later identified Killings as the man he saw walking with
McCray that night.

McCray and Killings eventually arrived at the apartment. McCray entered first,
followed by Killings. Metcalf and Moore, who were still in the front area of the
apartment, saw Killings, whom they both recognized, enter the apartment. Metcalf asked
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Killings "[W]hat's up?" or "[W]hat you doing here?" and Killings responded by placing a
finger up to his mouth, signaling for Metcalf and Moore to be quiet. Killings proceeded
to follow McCray down the hallway toward her bedroom.

Once Killings entered the bedroom, he pulled out a handgun, aimed it at Jackson,
taunted him (saying "[R]emember me[,] nigger?" "[Y]ou robbed me[,] nigger," or
"[M]otherfucker do you remember me?"), and fired his gun four times at Jackson. When
the shooting began, Jackson lunged toward Killings, trying to get the gun away from him
or to simply avoid being shot. Jackson sustained a single gunshot wound and died at the
scene.

During the shooting, Renee Stewart, one of the individuals inside the bedroom, ran
out of the room, passing Killings. Killings and Stewart both ran toward the front door of
the apartment, and the two got tangled up on the way out the door. Killings tripped over
Stewart and then knocked her down outside the apartment. While on the ground, Stewart
heard what she described as an ammunition magazine hit the ground beside her head.
Stewart saw Killings run out the back gate of the apartment complex and into the alley.

Stewart eventually got up and went downstairs to the apartment directly below
McCray's apartment. Moore, taking her son, also went to this apartment. The residents of
the apartment called 911 to report the shooting, and, within minutes, law enforcement
arrived at the apartment complex.

McCray and Metcalf sat on the steps outside McCray's apartment until law
enforcement arrived. As McCray and Metcalf were sitting there, they noticed an
ammunition magazine lying on the ground nearby. They pointed out the magazine to law
enforcement once the officers arrived, and the magazine was seized and taken into
custody. Subsequent testing of the magazine revealed the presence of Killings' DNA.
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 McCray and Metcalf were taken to the law enforcement center and interviewed
that night. Initially, McCray told detectives that she did not see who the shooter was
because, as she explained later at trial, she did not want to get Killings in trouble. Later
that same night, however, McCray identified Killings in a photo lineup as the shooter.

The detectives also interviewed Metcalf. She wrote a brief statement indicating
that she was in the kitchen when the "suspect" came into the bedroom, shot three to four
times, and left the apartment. After telling the detectives she knew where the shooter
lived, Metcalf went with law enforcement and showed them the house. The officers then
called dispatch and asked it to look up any calls that had previously occurred at Killings'
address. The officers learned that there had been a prior robbery call at that address in
December 2009. Killings was listed as the victim and "Ghost" (a/k/a/ Jackson) was listed
as the perpetrator of the robbery.

After Metcalf identified the shooter's home, she was taken to the law enforcement
center and shown three photo lineups. The third lineup contained a photograph of
Killings, and Metcalf identified Killings as the person who shot Jackson. Detectives later
interviewed Stewart, Moore, and Arlene Love, one of the individuals who was inside the
bedroom during the shooting. Stewart and Love were shown photo lineups and picked
Killings' photo as identifying the shooter. Moore was shown a photo lineup containing
Killings' photo but did not pick any photo as identifying the shooter.

Pursuant to a search warrant, law enforcement officers searched Killings' home
and found a single unfired Winchester .40 caliber Smith and Wesson bullet on the floor
of the home. This bullet matched the type of ammunition found in the magazine
discovered outside of McCray's apartment. The bullet also matched three .40 caliber shell
casings that the officers found inside McCray's apartment.
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 Killings turned himself in to law enforcement on January 23, 2010. After being
advised of his rights, Killings provided a statement regarding his whereabouts during the
evening hours of January 21, 2010. Killings claimed that during the time of the shooting,
he and his girlfriend were at Westridge Mall in Topeka where he purchased some clothes
at a Footlocker store. After spending about 2 hours at the mall, the couple then headed for
Lawrence, arriving there at approximately 7:30 p.m. Killings said that they tried to get
into a casino in Lawrence, but he forgot to bring his ID. He then said that they returned to
Topeka at approximately 9 p.m. and he spent the night at "Warren House" in Topeka.
Killings specifically denied ever going over to McCray's apartment on January 21.

On January 27, the detectives who conducted the Killings interview spoke to the
manager of Footlocker who was working at the store during the evening hours of January
21. The detectives showed the manager photos of Killings and his girlfriend and asked
whether they came into the store on January 21. The manager said he did not believe they
came into the store. When asked about a video surveillance system, the manger told the
detectives that the store did not have one. According to the detectives, the mall had no
video surveillance system in place.

The detectives also spoke with members of the Lawrence Police Department and
asked whether there was a casino or an establishment referred to as a casino in Lawrence.
The officers told the detectives that they were not familiar with anything like a casino in
Lawrence.

Ultimately, Killings was charged with one count of premeditated first-degree
murder. The case proceeded to a jury trial where McCray, Metcalf, Moore, Stewart, and
Love all testified and identified Killings as the man who shot Jackson. Bertram Grant,
another individual inside the bedroom, testified that he did not get a good look at the
10
shooter but heard him ask, "'[M]otherfucker, do you remember me?'" prior to shooting
Jackson. The jury convicted Killings of first-degree murder. The district court imposed a
life sentence with no possibility of parole for 50 years and ordered lifetime postrelease
supervision. Killings filed a timely notice of appeal.

More facts will be stated as they become pertinent to the issues discussed below.

LESSER INCLUDED OFFENSE INSTRUCTIONS

Killings argues that the district court erred when it denied his request that the jury
be instructed on both second-degree intentional murder and second-degree reckless
murder. In reviewing these alleged instructional errors, this court conducts a four-step
analysis. Those steps, with accompanying standards of review, are:

"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, 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; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012)." State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202
(2012).

A. Second-Degree Intentional Murder

The State concedes that Killings preserved this instructional issue for appeal by
requesting a second-degree intentional murder instruction at the jury instruction
conference.
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 Second-degree intentional murder is a lesser included offense of premeditated
first-degree murder because the only difference between the two crimes is the element of
premeditation. See K.S.A. 21-3401(a) (first-degree premeditated murder is the killing of
a human being committed intentionally and with premeditation); K.S.A. 21-3402(a)
(second-degree intentional murder is the killing of a human being committed
intentionally); State v. Warledo, 286 Kan. 927, 951, 190 P.3d 937 (2008) ("[S]econd-
degree intentional murder is a lesser included offense of first-degree premeditated murder
because all the elements of second-degree murder are identical to some of the elements of
first-degree murder" [citing K.S.A. 21-3107(2)(b)].). Accordingly, an instruction on
second-degree intentional murder would have been legally appropriate.

With regard to whether an instruction for second-degree intentional murder would
have been factually appropriate, K.S.A. 22-3414(3) states that "[i]n cases where there is
some evidence which would reasonably justify a conviction of some lesser included
crimes . . . , the judge shall instruct the jury as to the crime charged and any such lesser
included crime." Killings points out that the district court, in ruling that the evidence
presented at trial did not support giving a lesser included offense instruction on second-
degree intentional murder, stated: "The jury could find this was an intentional
premeditated act . . . ." We agree with Killings' argument that the district court
verbalized the wrong legal standard. But we conclude that this error was harmless.

Even if we assume that the evidence presented at trial made a second-degree
intentional murder instruction factually appropriate under K.S.A. 22-3414(3), we
conclude that there is no reasonable possibility that the jury, had it been instructed on the
lesser included offense, would have found Killings guilty of second-degree intentional
murder instead of premeditated first-degree murder because of the overwhelming
evidence presented on premeditation. See State v. Ward, 292 Kan. 541, 565, 256 P.3d
12
801 (2011) (If an error implicates a constitutional right, then "a Kansas court must be
persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e.,
there is no reasonable possibility that the error contributed to the verdict."), cert. denied
132 S. Ct. 1594 (2012); see also State v. Brown, 298 Kan. 1040, 1051, 318 P.3d 1005
(2014) (if constitutional harmless error standard is met, then lower statutory standard
under K.S.A. 60-261 is also satisfied).

Again, the only difference between premeditated first-degree murder and second-
degree intentional murder is the element of premeditation. This court has explained
premeditation as follows:

"[P]remeditation 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. [Citations omitted.] Further, it
is not necessary that there be direct evidence of either intent or premeditation. Instead,
premeditation, deliberation, and intent may be inferred from the established
circumstances of a case, provided the inferences are reasonable. [Citation omitted.] In
other words, '[i]ntent . . . may be shown by circumstantial evidence, and a person is
presumed to intend all the natural consequences of his acts.' [Citation omitted.]

"In considering circumstantial evidence, Kansas caselaw identifies factors to
consider in determining whether the evidence gives rise to an inference of premeditation
that 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.] 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. [Citations omitted.] Use of a deadly weapon by itself, however, is
insufficient to establish premeditation. [Citation omitted.]" State v. Williams, 299 Kan.
509, 525-26, 324 P.3d 1078 (2014).

13
 Killings' jury was instructed on the concept 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."

There was abundant evidence presented at trial which established that Killings' act
of killing Jackson was premeditated and, thus, constituted a first-degree murder. After
Killings learned from McCray that Jackson—the man who had previously robbed him—
was at her apartment, Killings expressed an interest in going to McCray's apartment.
Armed with a gun, Killings walked with McCray back to her apartment. When he
followed McCray into the apartment, Killings signaled to Metcalf and Moore to remain
quiet and followed McCray to the bedroom. Upon entering the bedroom, Killings pulled
out his gun, pointed it at Jackson, and taunted him. He then fired his gun multiple times at
Jackson, hitting him once.

It can be clearly inferred from this evidence that once Killings realized he had an
opportunity to exact revenge upon Jackson, he seized upon that opportunity. Prior to
firing his gun at close range at Jackson, Killings had a significant amount of time to
deliberate upon his chosen course of action while he walked from his house to McCray's
apartment carrying a loaded gun. This evidence, along with the unprovoked nature of the
shooting and the taunt Killings directed at Jackson prior to firing his weapon at him, all
indicate the premeditated nature of Jackson's murder.

In support of his argument that there was a reasonable possibility the jury could
have convicted him of second-degree intentional murder had it received an instruction on

14
that crime, Killings points to Love's testimony in which she stated that when Jackson saw
Killings, Jackson lunged at him. Killings argues that the jury could have inferred from
Love's testimony that he only shot Jackson once he perceived that Jackson was going to
attack him.

As the State points out in its brief, the problem with this argument is that Love did
not testify that Jackson lunged at Killings before Killings had his gun out. Love stated
that Jackson lunged at Killings after Killings began firing his weapon. Love speculated
that Jackson lunged at Killings in order to avoid getting shot or to make an attempt at
getting the gun away from Killings. Accordingly, Love's testimony did not establish that
Jackson lunged at Killings and Killings shot him in response. Instead, Love's testimony
corroborated the other witnesses' testimonies establishing that Killings, unprovoked on
that particular evening, shot Jackson.

Based on the evidence recounted above, we conclude that any error based on the
district court's failure to instruct on second-degree intentional murder constituted
harmless error.

B. Second-Degree Reckless Murder

The State again concedes that Killings preserved this instructional issue for appeal
by requesting an instruction on second-degree reckless murder at the jury instruction
conference.

Second-degree reckless murder is the killing of a human being committed
unintentionally but recklessly under circumstances manifesting extreme indifference to
the value of human life. K.S.A. 21-3402(b). The act is a lesser included offense of
premeditated first-degree murder. See State v. Martinez, 288 Kan. 443, 453, 204 P.3d 601

15
(2009) ("Reckless second-degree murder is a lesser included offense of premeditated
first-degree murder."). Accordingly, an instruction on second-degree reckless murder
would have been legally appropriate.

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 argues that an instruction on second-
degree reckless murder was factually appropriate given Stewart's testimony at trial that
she did not think Killings meant to kill Jackson.

During her direct examination, Stewart was asked why she did not initially
identify Killings as the shooter when she spoke to detectives. Stewart answered: "For
one, to me [Killings] was in his feelings why he did it. I don't think that he meant to kill
[Jackson], but still it happened so, and [Jackson] wasn't a bad person . . . ." The
prosecutor later asked Stewart to explain this statement:

"Q. Now, you said something a minute ago that I want to talk about a little bit.
You said you don't believe [Killings] meant to do it?
"A. Yeah.
"Q. That he was into his feelings?
"A. Uh-huh.
"Q. What does that mean?
"A. That means it was revenge."

Stewart went on to explain that Killings murdered Jackson in order to get revenge
for Jackson and another individual robbing him.

16
 Later, on cross-examination, Stewart was again asked what she meant when she
said Killings did not mean to kill Jackson:

"Q. And when you say that Killings didn't mean to kill [Jackson], what you mean
was he meant to punish him for what happened, but he didn't mean to kill him, is that
what you meant?
"A. I just don't think he meant to do it."

The State contends that Stewart's opinion as to whether Killings intended to kill
Jackson was, at most, pure speculation. The State argues that Stewart had no personal
knowledge of Killings' intent and there was no other evidence presented at trial that
corroborated Stewart's opinion of Killings' intent.

Reviewing the entirety of Stewart's comments, it is clear that what Stewart was
trying to convey by saying she did not think Killings meant to kill Jackson was that, but
for Killings being upset at Jackson for robbing him, Killings would not have killed
Jackson. Thus, her statement cannot be relied on as providing factual support for a
second-degree reckless murder instruction. But even if we ignore Stewart's later
explanation for her statement and assume that she literally thought Killings did not mean
to kill Jackson, her statement would be speculative at best and completely unsupported by
the evidence establishing that Jackson's death resulted from a premeditated, intentional
killing. Accordingly, her statement does not provide factual support for a second-degree
reckless murder instruction. Cf. State v. Calderon, 270 Kan. 241, 255-56, 13 P.3d 871
(2000) (in light of overwhelming evidence of intent, no evidence of recklessness, and
despite defendant's "self-serving statement" to police that he meant to cut victim on the
arm instead of stabbing him in the abdomen, court held district court did not err in failing
to instruct on reckless second-degree murder and reckless involuntary manslaughter).

17
 Again, the evidence presented at trial established that Killings went to McCray's
apartment with the intent to exact revenge upon Jackson for the prior robbery. Once he
was inside the apartment and made his way to the doorway of McCray's bedroom, he
pointed a gun at Jackson, taunted him, and shot at him multiple times, hitting him once.
The only inference that can be gleaned from this evidence is that Killings intended to kill
Jackson. Accordingly, an instruction on second-degree reckless murder would have been
factually inappropriate. Cf. State v. Cordray, 277 Kan. 43, 56, 82 P.3d 503 (2004)
(evidence sufficient to support jury verdict of unintentional but reckless second-degree
murder where the defendant fired a gun in the general direction of a vehicle at night,
striking an occupant); State v. Jones, 27 Kan. App. 2d 910, 915, 8 P.3d 1282 (2000) (held
jury could have found evidence supporting recklessness where witnesses testified
defendant shot gun randomly over crowd of people with eyes closed).

Based on the evidence presented at trial, we conclude that the district court did not
err by denying Killings' request to instruct the jury on second-degree reckless murder.

PROSECUTORIAL MISCONDUCT

Killings raises several instances of alleged prosecutorial misconduct during
closing arguments. He claims that the prosecutor improperly commented on: (1) Killings'
exercise of his constitutional right to a jury trial; (2) Killings' failure to present any
evidence at trial; and (3) the credibility of several witnesses. Each of these alleged
examples of misconduct will be addressed in turn.

Appellate review of a prosecutorial misconduct claim based on improper
comments requires a two-step analysis. First, an appellate court decides whether the
comments at issue were outside the wide latitude a prosecutor is allowed when discussing
evidence. If so, there was misconduct. Second, if misconduct is found, an appellate court
18
determines whether the improper comments prejudiced the jury against the defendant and
denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244
(2013).

Prosecutors enjoy wide latitude in crafting closing arguments. See State v. Scott,
271 Kan. 103, 114, 21 P.3d 516 (citing State v. Miller, 268 Kan. 517, Syl. ¶ 4, 997 P.2d
90 [2000]), cert. denied 534 U.S. 1047 (2001). This latitude allows a prosecutor to make
reasonable inferences based on the evidence, but it does not extend so far as to permit
arguing facts not in evidence. State v. Tahah, 293 Kan. 267, 277, 262 P.3d 1045 (2011).
For instance, "[p]rosecutors are not allowed to make 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." State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098
(2006). Arguments must remain consistent with the evidence. If they are not, the first
prong of the prosecutorial misconduct test is met, and an appellate court must then
consider whether the misstatement prejudiced the jury against the defendant and denied
the defendant a fair trial. Bridges, 297 Kan. at 1014.

A. Were the Statements Improper?

1. Commenting on Killings' Right to a Jury Trial

The following exchange took place during the prosecutor's closing arguments:

"You heard from, I believe everyone that was there, everyone that has information about
the circumstances surrounding the murder of Mr. Jackson.
"The evidence is overwhelming that the defendant murdered Mr. Jackson on
January 21, 2010. So why are we here with this kind of evidence, this kind of physical
evidence and testimonial evidence, why are we here?
"We are here because the defendant was given an opportunity, he failed to accept
responsibility for his homicidal act; and now that responsibility is passed along to you.
19
 Your responsibility now is to hold him accountable for something of which he would not
accept responsibility for.
"[DEFENSE COUNSEL]: Your Honor, I object to any acceptance of
responsibility. That's not what we are here for. I think it is improper.
"THE COURT: Okay. Counsel, go ahead and move on.
"[THE PROSECUTOR]: You have the task at this point to hold the defendant
accountable for his acts, and what can you consider in doing that? You can only consider
the evidence that was presented over the last week and a half. What is that evidence?
Well, it is the testimony of many witnesses. It is the admission of many exhibits, all of
which, which shed light on the circumstances surrounding the homicide of Mr. Jackson."
(Emphasis added.)

Killings contends that the prosecutor's comment regarding his refusal to accept
responsibility "cast negative aspersions" on him for exercising his constitutional right to a
jury trial. Killings likens the prosecutor's comment to impermissible comments regarding
a defendant's postarrest silence. See Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S.
Ct. 2240 (1976). A Doyle violation occurs when the government attempts to impeach a
defendant's version of events offered at trial on the basis that the defendant remained
silent after being advised of his or her Miranda rights and, thus, did not offer the
information at an earlier point in the criminal investigation. 426 U.S. at 617-19; see State
v. Kemble, 291 Kan. 109, 121-23, 238 P.3d 251 (2010).

Killings' comparison of the prosecutor's statement here to a Doyle violation is
unnecessary. There is already precedent in Kansas prohibiting a prosecutor from making
disparaging comments about a defendant exercising his or her right to a jury trial. See
State v. Snow, 282 Kan. 323, 336-39, 144 P.3d 729 (2006), disapproved on other grounds
by State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012); State v. Tosh, 278 Kan. 83, 91-92,
91 P.3d 1204 (2004). Furthermore, unlike a defendant in a Doyle case, who exercises his
or her right to remain silent during a post-Miranda warnings interrogation but later
testifies at trial and provides an exculpatory version of events, Killings voluntarily
20
provided police with an explanation of his whereabouts during the time of the shooting.
Later, however, he chose not to testify at trial. Accordingly, the facts of this case make it
distinguishable from the typical Doyle-violation case.

Killings makes the additional argument that the prosecutor's statement here is
similar to the statement found to be improper in Tosh. In Tosh, the prosecutor asked the
jury to think about why the defendant was "bothering to do this" (i.e., go through with a
jury trial) when he had already confessed to committing the charged crimes. This court
determined that the prosecutor's comment improperly injected a matter outside the
evidence into the jury's deliberations and concluded that the comment was outside the
wide latitude given to prosecutors. 278 Kan. at 91-92.

Similarly, in Snow the defendant complained on appeal that the prosecutor denied
him a fair trial by disparaging him for exercising his constitutional right to a jury trial. As
recounted in Snow:

The prosecutor began her closing arguments by stating:

"'[M]embers of the jury, there may be some of you who are sitting there thinking,
why have we given two days to listen to this evidence? And the answer is simply
this: Everyone who's charged with a crime in this country has an absolute right to
a jury trial if that's what they demand. The defendant has indicated he wants a
jury trial, and now he's had it. Despite the amount of evidence that might be there
against them, if he wants it, I have to put it on, and we've done that.'" 282 Kan. at
337.

The prosecutor closed her arguments stating:

'"Now, the defendant wants his jury trial, he's had his jury trial, and it[']s time to
put an end to this nonsense.'" 282 Kan. at 337.
21
 The Snow court ultimately concluded that "the prosecutor's comments . . . injected
a matter outside the evidence, inferring that Snow should have acceded to the State's
evidence and waived his right to a fair trial because of the strength of the State's evidence
against him." 282 Kan. at 338; see also State v. Nye, 46 Kan. App. 2d 182, 194-95, 261
P.3d 923 (2011) (finding prosecutor's statements that defendant knew when he refused to
take breath test and during trial that he was guilty of DUI were improper because they
"impugned [the defendant's] right to contest the DUI charge and request a jury trial"), rev.
denied 293 Kan. 1112 (2012).

Like the statements at issue in Snow and Tosh, the statement here injected a matter
outside the evidence presented at trial by asking the jury, "'Why are we here?'" i.e., going
through with a jury trial when the evidence of Killings' guilt was so overwhelming. The
prosecutor then answered his own rhetorical question by suggesting that he and the jury
were enduring the burden of a jury trial because Killings "'failed to take responsibility for
his homicidal act.'" By making this argument, the prosecutor was clearly suggesting to
the jury that Killings 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. Accordingly, we
find this statement outside the bounds of permissible argument.

Because Killings complains of other statements made by the prosecutor during
closing arguments, we will analyze those statements before determining whether the
prosecutor committed reversible misconduct during closing arguments.

22
 2. Commenting on Killings' Failure to Present Evidence

Next, Killings objects to a statement the prosecutor made near the beginning of his
rebuttal arguments. To place the prosecutor's comments in context, it is necessary to first
examine the arguments that defense counsel made during his closing arguments.

Because the defense did not present any evidence at trial, defense counsel's closing
arguments consisted of pointing out supposed weaknesses in the State's case identifying
Killings as Jackson's murderer. In making these arguments, defense counsel identified
pieces of evidence that the State could have procured but did not present at trial:

• The photo that the detective showed to the manager at Footlocker to
determine whether Killings was at the store at the time of the shooting.

• Testing which would have identified the biological material (e.g., blood) on
the magazine clip containing Killings' DNA.

• Comparisons of the DNA found on the magazine clip to the DNA of other
people who were at McCray's apartment on January 21.

• Testimony from "R.P.," Jackson's alleged accomplice in the robbery of
Killings.

• The cell phone records for everyone who was at McCray's apartment on
January 21.

• Killings' prior convictions to establish that he had a history of engaging in
violence (the district court sustained the State's objection to this argument).

23
 Throughout his closing arguments, defense counsel suggested that the State did
not present this evidence at trial because the evidence did not fit within its theory of the
case, i.e., that Killings murdered Jackson in order to exact revenge for the prior robbery.
Because this evidence was not presented at trial, defense counsel argued that the State
had not carried its burden of proof.

Near the beginning of the State's rebuttal arguments, the prosecutor stated:

"[Defense Counsel] wants you to pay attention to the things that weren't
presented, and that's somehow if it wasn't presented it's because the State didn't want you
to know about it, because it doesn't fit the theory of the case.
"Ladies and gentlemen, I don't know how many pieces of evidence that were
admitted and it is not the amount of items that really ultimately matters; but I will tell you
this, every item that was admitted was presented to you by the State. Every witness that
testified that relayed their information to you was presented by the State. I tell you that
because the State is not hiding anything. We put on everything we had. Everything that
was available." (Emphasis added.)

The prosecutor proceeded to explain why certain pieces of evidence were not
presented and disputed defense counsel's suggestion that, without this evidence, the State
had not carried its burden of proof.

Killings contends that the italicized portion of the prosecutor's rebuttal argument
above was improper because it implied that the defense had an obligation to present
evidence at trial and failed to do so. In other words, the prosecutor attempted to shift the
burden of proof to the defense.

"Kansas courts deem it 'improper for the prosecutor to attempt to shift the burden
of proof to the defendant or to misstate the legal standard of the burden of proof.'

24
[Citations omitted.] But we grant prosecutors considerable latitude to address the
weaknesses of the defense. [Citations omitted.]" State v. Duong, 292 Kan. 824, 832, 257
P.3d 309 (2011); see State v. McKinney, 272 Kan. 331, 346, 33 P.3d 234 (2001) (where
jury has been properly instructed that prosecution has burden of proof, a prosecutor may
argue inferences based on the balance or lack of evidence), overruled on other grounds
by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). Though this court has made clear
recently that "a prosecutor commits misconduct by making an improper argument, even if
the improper argument is made in response to arguments or statements by defense
counsel," State v. Marshall, 294 Kan. 850, 860, 281 P.3d 1112 (2012), the prosecutor's
comment must still be evaluated in the context of which it was made. See State v.
Williams, 299 Kan. 911, 937-41, 329 P.3d 400 (2014).

"When a prosecutor's comment 'constitute[s] only a general question about the absence of
evidence to rebut the State's witnesses . . . [and] not an impermissible remark about the
defendant's failure to testify or an attempt to shift the burden of proof to the defense,' the
comment is within the wide latitude afforded to the prosecution. [Citations omitted.]"
State v. Peppers, 294 Kan. 377, 397-98, 276 P.3d 148 (2012).

Applicable here, this court has held that a prosecutor does not shift the burden of
proof by pointing out a lack of evidence to support a defense or to corroborate a
defendant's argument regarding holes in the State's case. See, e.g., Williams, 299 Kan. at
939 ("[I]f a defendant asks the jury to draw an inference that the State's evidence is not
credible because the State did not call a witness to corroborate other evidence, we have
held that the State can refute the inference by informing the jury that the defense has the
power to subpoena witnesses, including those who would be favorable to the defense.");
State v. Wilson, 295 Kan. 605, 623-25, 289 P.3d 1082 (2012) (holding prosecutor's
arguments that defendant had no explanation for his DNA found near crime scene did not
improperly shift burden of proof; rather, it was comment on efficacy of defense and
pointed jurors to lack of evidence supporting defendant's version of events); State v.
25
Cosby, 293 Kan. 121, 135-37, 262 P.3d 285 (2011) (finding prosecutor's statements
asking jury if it had heard any evidence that suggested witness' testimony was wrong did
not improperly shift burden of proof because prosecutor was only commenting generally
on defendant's failure to rebut witness' testimony and not commenting on defendant's
failure to testify); Duong, 292 Kan. at 832-33 (holding prosecutor's arguments
questioning defendant's failure to present evidence of misidentification did not
improperly shift burden of proof because prosecutor did not call upon defense to disprove
crime's occurrence but rather pointed out that evidence supporting defense theory was
thin); State v. Stone, 291 Kan. 13, 18, 237 P.3d 1229 (2010) (finding prosecutor's
statements that defendant had "'obstacles to overcome'" were within considerable latitude
granted to prosecutors to comment on weaknesses of defenses).

Contrary to Killings' arguments, the prosecutor did not suggest or infer that
Killings had the burden to show that he was not involved in Jackson's murder. Rather, the
prosecutor, by merely noting that the State had presented all the evidence admitted at
trial, was responding to defense counsel's argument that the State chose not to present
certain pieces of evidence that did not fit within its theory of the case. As the cases cited
above show, it would have been permissible for the prosecutor to go one step beyond his
statement and explicitly note in rebuttal that the defense had the ability to present the
missing evidence it identified as damaging to the State's case. Accordingly, the
prosecutor's comments were not outside the wide latitude allowed in discussing evidence.

3. Commenting on the Credibility of Witnesses

Lastly, Killings points to four instances during the prosecutor's closing and
rebuttal arguments which he argues constitute improper comments on the credibility of
witnesses.

26
 During the prosecutor's closing arguments, he discussed the testimonies of the
people inside McCray's apartment when the shooting occurred:

"These people are not about the system, but they did their job. Did they run to the
police and tell them what happened, no. They had to be found, except for Bobbie and
Deborah stayed around where they are. They came down to the police station. They all
gave their story, and when it first started they didn't say who did it. They didn't want to be
involved in the homicide to begin with. They don't want to be involved in fingering
anyone because they know they have to come to court and testify, but when push came to
shove they told law enforcement who did it, and then they came in this courtroom and
told all of you who did it, and I made each one of them point at the defendant and identify
him. Because that's not easy to do, especially if that's not the person. They were cross
examined by [defense counsel] thoroughly, hammered at times, rightfully so. The
defendant has that right, but they never wavered, ladies and gentlemen. They told you
what happened on the 21st day of January, 2010." (Emphasis added.)

Defense counsel suggested during his closing arguments that the testimony of the
witnesses inside McCray's apartment during the shooting, identifying Killings as the
shooter, could not be trusted due to most of them admitting to consuming crack cocaine
just before the shooting. He also suggested that these witnesses may have spoken to each
other before speaking individually to law enforcement in order to concoct a story
identifying Killings as the shooter. Though there was no evidence admitted at trial to
support his allegations, defense counsel suggested that R.P., Jackson's alleged accomplice
in the robbery of Killings, was the murderer and that the witnesses inside the apartment
were protecting R.P. because he was their crack dealer.

The prosecutor responded to these arguments during his rebuttal arguments by
making the following statements:

27
• "Now, to pull off this conspiracy [i.e., frame Killings for Jackson's murder,] as I
indicated earlier, it is quite elaborate and quite involved, and it requires scientific
expertise, the transference of DNA, knowing how to do that, and where to get it.
It just boggles the mind to even imagine how Bobbie and Deborah and Renee and
Bernard and Arlene and Ms. Moore could put this altogether and keep it together.
If it's made up, if it's fabricated it is going to fall apart at some point. These
people are not going to keep it together over time, and yet if they have. Why?
Because that's what happened, it's easy to keep it together when all you are
repeating and all you are telling is what you saw, what you heard and what you
did. It is much harder when you fabricate things." (Emphasis added.)

• "I've heard no evidence and maybe you have, where RP was the [crack] dealer. I
believe in saying that [defense counsel is] suggesting maybe RP was the
murderer and all these witnesses are framing his client in order to protect RP.

"Now, the only evidence I've heard regarding the crack dealer is the
defendant. That's where at least Bobbie McCray was going to buy her crack, in
fact, traded for crack; and I think [defense counsel] is right. I think crack addicts
wrongly so want to protect their dealer because that's the source of their supply,
to feed their addiction; but ladies and gentlemen, even crackheads draw a line in
the sand and he's dead. When push came to shove they realized what went down
inside that apartment as much as they didn't want to be involved and as much as
they initially did not want to cooperate with the law enforcement. I think in the
end they even realized this crossed the line. Yes we are crack addicts. Yes, we've
done things in the past we regret, but we are not murderers and they can't
condone that. So I think in the end they realize and went above and beyond what
is acceptable even with their lifestyle, and that's why they came in here and told
you what they told you. Not because they are setting up Mr. Killings for a fall,
because again they have really no interest in dealing with law enforcement or the
courts because of what they do. They want to avoid that. But even they have a
conscience." (Emphasis added.)

28
 • "[I] talked in detail about Ms. McCray, Ms. Metcalf, Ms. Stewart, a lot of the individuals,
and there's one that I mentioned earlier which kinda stands out to me. I don't know why. I
guess maybe it is the way she presented herself on the stand, and during her interview,
Arlene Love. Now think for yourself as far as you want to pick apart, which you'll do.
Arlene Love is a person that will have, if somebody told her to do something she didn't
want to do or didn't believe, Arlene Love ain't doing it. She is a strong woman, admitted
crack addict, a strong woman. She is not going to take the fall for anyone else. She is not
going to fall into conspiracy of other people if it did happen, because she doesn't want
the police up in her business. She does her thing, handles her business and moves along.
You saw her. She never wavered from the time of the interview to the time she took the
stand. She is a strong woman." (Emphasis added.)

Killings argues that the italicized portions of the above statements constitute
impermissible comments on the credibility of witnesses.

It is improper for a prosecutor to offer his or her personal opinion as to the
credibility of a witness, including the defendant. See State v. Elnicki, 279 Kan. 47, 59-64,
105 P.3d 1222 (2005); State v. Davis, 275 Kan. 107, 121-23, 61 P.3d 701 (2003); State v.
Pabst, 268 Kan. 501, 506-07, 996 P.2d 321 (2000). A prosecutor, however, "may explain
the legitimate factors which a jury may consider in assessing witness credibility and may
argue why the factors present in the current case should lead to a compelling inference of
truthfulness." State v. Scaife, 286 Kan. 614, Syl. ¶ 5, 186 P.3d 755 (2008); see, e.g., State
v. Huerta-Alvarez, 291 Kan. 247, 262, 243 P.3d 326 (2010) (finding that prosecutor's
remarks in closing regarding victim's credibility "were generally in the nature of
reviewing what [the victim] said, asking the jury to assess the credibility of her
statements, and querying the jury why she would not have made up a more convenient
story if in fact she had fabricated the story at all").

In commenting on the credibility of the witnesses to the shooting, the prosecutor
never offered a personal opinion as to whether the witnesses were credible (e.g., I believe
29
Bobbie McCray is credible). Instead, the comments quoted above show that the
prosecutor directed the jury to the evidence and factors he argued established the
credibility of the witnesses. Thus, we conclude that the statements were not outside the
wide latitude allowed to a prosecutor in discussing the evidence presented at trial.

B. Did the Prosecutor Commit Reversible Misconduct?

As determined above, we deem one comment to be improper—the prosecutor's
comment regarding Killings' decision not to accept responsibility and instead exercise his
right to a jury trial. We now move on to the second prong of the prosecutorial misconduct
analysis. This involves a three-factor inquiry: (1) whether the misconduct was gross and
flagrant; (2) whether it was motivated by prosecutorial ill will; 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. No one factor is controlling. State v.
Crawford, 300 Kan. 752, Syl. ¶ 3, 334 P.3d 311 (2014); State v. Bridges, 297 Kan. 989,
1012, 306 P.3d 244 (2013); State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). Before
the third factor can ever override the first two factors, an appellate court must be able to
say that the State can meet both the statutory harmlessness standard stated in K.S.A. 60-
261 and the constitutional standard stated in Chapman v. California, 386 U.S. 18, 87 S.
Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Crawford, 300 Kan. 752, Syl.
¶ 4; Bridges, 297 Kan. at 1012 (citing Tosh, 278 Kan. at 97); see State v. Ward, 292 Kan.
541, Syl. ¶¶ 5-6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

We have observed that, as a practical matter, the result of the harmless error
evaluation depends on the outcome of the Chapman constitutional standard. "[B]oth the
constitutional and nonconstitutional error clearly arise from the very same acts and
omissions," and the constitutional standard is more rigorous. Bridges, 297 Kan. at 1015
(citing State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 [2013]). Thus, the State
30
necessarily meets the lower statutory standard under K.S.A. 60-261 if it meets the higher
constitutional standard. 296 Kan. at 1111.

With regard to the first factor—whether the misconduct was gross and flagrant—
we consider whether the misconduct was repeated, was emphasized, violated a long-
standing rule, violated a clear and unequivocal rule, or violated a rule designed to protect
a constitutional right. Marshall, 294 Kan. 850, Syl. ¶ 6. Here, the prosecutor only referred
one time to Killings' decision to exercise his constitutional right to a jury trial (i.e.,
"[W]hy are we here?"). Though we have held that it is improper for a prosecutor during
closing arguments to impugn a defendant for choosing to exercise his or her right to a
jury trial, see State v. Snow, 282 Kan. 323, 338, 144 P.3d 729 (2006), disapproved on
other grounds by State v. Gruder, 293 Kan. 763, 267 P.3d 751 (2012); Tosh, 278 Kan. at
91-92, we have also held that it is proper for a prosecutor to argue that, based on the
evidence, the defendant, by providing an implausible alibi, was not taking responsibility
for the defendant's actions and that the jury should hold the defendant accountable. See
State v. Finley, 273 Kan. 237, 244-45, 42 P.3d 723 (2002). A review of the prosecutor's
statement shows that the bulk of the statement consisted of arguments that are proper
under Finley. Accordingly, we find that the prosecutor's lone reference to Killings'
decision to proceed with a jury trial was not gross and flagrant.

In analyzing whether a prosecutor's misconduct was motivated by ill will, we
consider whether the misconduct was deliberate, repeated, or in apparent indifference to a
court's ruling." Marshall, 294 Kan. 850, Syl. ¶ 7. Again, the prosecutor made a single
reference to Killings' decision to proceed with a jury trial. The bulk of his statement,
however, was proper under Finley. When defense counsel lodged an objection, counsel
complained of the prosecutor's argument suggesting that Killings failed to accept
responsibility. The district court did not make an explicit ruling on the objection but
directed the prosecutor to "go ahead and move on." The prosecutor proceeded to argue
31
that the jury, based on the evidence, should hold the defendant accountable—again, a
proper argument under Finley. Accordingly, we conclude that there was no evidence of
ill will on the part of the prosecutor.

Finally, we turn to the third factor: Was the evidence of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors? In answering this question, the State, as the party "benefitting from the
prosecutorial misconduct, bears the burden to establish beyond a reasonable doubt that
the error did not affect the defendant's substantial rights, i.e., there is no reasonable
possibility the error affected the verdict." State v. Inkelaar, 293 Kan. 414, 431, 264 P.3d
81 (2011); see, e.g., State v. Raskie, 293 Kan. 906, 918, 269 P.3d 1268 (2012) (finding
prosecutor's misstatement did not affect the outcome of the trial in light of the entire
record)."

As recounted above, the State presented overwhelming evidence (e.g., five eye-
witnesses who identified Killings as the shooter and DNA evidence linking Killings to
the ammunition magazine discovered outside of McCray's apartment door) establishing
that Killings intentionally and with premeditation murdered Jackson inside McCray's
apartment. Based on this evidence, we can conclude that there is no reasonable possibility
that the single improper comment in the prosecutor's closing argument affected the
verdict. Accordingly, we conclude that the prosecutor did not commit reversible
misconduct.

RIGHT TO BE PRESENT

Killings argues that an exchange between the district court judge and the jury
foreman violated his constitutional and statutory rights to be present at all critical stages
of his criminal prosecution. A claim that a defendant was deprived of his or her statutory

32
and constitutional rights to be present during a portion of the trial raises legal questions
that are subject to unlimited review on appeal. State v. Engelhardt, 280 Kan. 113, 121,
119 P.3d 1148 (2005).

During a break while the jury was deliberating, the judge advised the attorneys and
Killings of the following:

"I will advise you that just before the jury foreman approached me after all of the jurors
had left, and he said I don't know if I can ask you this question or not, and he said there
are only three ways this can go, is that correct? And I really didn't answer him. I just
nodded, and I just, he said, you know, guilty, not guilty or hung? And I said if you have a
question, I would like for you to write it down for me in a question format on the form;
and he said, well, I just wanted to bring this up not in the presence of everyone. We
haven't discussed that as an issue, but he was thinking about it, and I told him that I
would advise you of what he said and if, if he felt that it was necessary to, the Court
would like that in a written form from him if you wanted to ask that question, but I did
not give him any response."

Killings raised no concern about or objection to the judge's interaction with the
jury foreman.

In his motion for a new trial, Killings argued that the judge's encounter with the
jury foreman constituted a conference between the judge and juror which required
Killings' presence. The district court filed a memorandum decision and order denying
Killings' motion. In the decision, the district court recounted the interaction with the
juror:

"Just after jurors recessed for lunch, the Jury Foreman returned to Division 11,
approached the Court and stated, 'I'm not sure if you can answer this question, but the
way I see it is this thing could go three ways: guilty, not guilty, or hung.' The Court
33
 instructed the foreman to submit his questions to the Court in writing on the form
provided by the Court. The foreman then stated that although he wanted to bring up this
point to the Court, he did not want to do so in the presence of the other jurors. He added
that jurors had not discussed the matter, but he had been thinking of it. The Court advised
the foreman that the Court would inform the parties of his question and of the Court's
instruction. That concluded the interaction. The foreman never submitted written inquiry
about this topic."

The district court judge concluded that the exchange between the juror and herself
did not constitute reversible misconduct.

A criminal defendant has a constitutional and statutory right to be present at all
critical stages of his or her trial. See Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L.
Ed. 2d 353, reh. denied 398 U.S. 915 (1970); K.S.A. 22-3405(1); State v. Bolton, 274
Kan. 1, 4-5, 49 P.3d 468 (2002). K.S.A. 22-3405(1) provides in relevant part: "The
defendant in a felony case shall be present at the arraignment, at every stage of the trial
including the impaneling of the jury and the return of the verdict, and at the imposition of
sentence, except as otherwise provided by law." This court has interpreted K.S.A. 22-
3405(1) to mean:

"[A] felony defendant must be present at any stage of the trial when the jury is in the
courtroom or when the defendant's presence is essential to a fair and just determination of
a substantial issue. The statutory command of K.S.A. 22-3405(1) is analytically and
functionally identical to the requirements under the Confrontation Clause and the Due
Process Clause of the federal Constitution that a criminal defendant be present at any
critical stage of the proceedings against him or her." Engelhardt, 280 Kan. 113, Syl. ¶ 2.

"It is well settled that a conference between a trial judge and a juror is a critical
stage of the trial at which a criminal defendant has a constitutional right to be present."
State v. Mann, 274 Kan. 670, 682, 56 P.3d 212 (2002). Furthermore, K.S.A. 22-3420(3)
34
requires that any question from the jury concerning the law or evidence pertaining to the
case must be answered in open court in the defendant's presence unless the defendant is
voluntarily absent. See State v. Bowen, 299 Kan. 339, 353, 323 P.3d 853 (2014); State v.
King, 297 Kan. 955, 967, 305 P.3d 641 (2013).

To classify the exchange that took place in this case as a "conference" requiring
Killings' presence is tenuous at best. Cf. Mann, 274 Kan. at 680-81 (court found it was
error for trial judge, outside presence of defendant, to formally question four jurors about
trial spectator whose conduct was making them uncomfortable); State v. Fulton, 269 Kan.
835, 844-45, 9 P.3d 18 (2000) (court found it was error for trial judge, outside presence
of attorneys and defendant, to question two jurors about misconduct occurring during
deliberations); State v. McGinnes, 266 Kan. 121, 127-28, 967 P.2d 763 (1998) (court
found it was error for trial judge to have an ex parte communication with the jury
advising it about why a witness did not testify at trial); State v. High, 260 Kan. 480, 484-
85, 922 P.2d 430 (1996) (court found it was error for trial judge, outside the presence of
defendant, to question a juror about her business relationship with the victim's family);
Crease v. State, 252 Kan. 326, 328-33, 845 P.2d 27 (1993) (court found it was error for
trial judge to have an in chambers ex parte communication with at least one juror
concerning juror's reluctance to apply felony-murder rule).

Here, the jury foreman voluntarily approached the district court judge and
attempted to ask the judge a question. The judge's description of the encounter, when
viewed in its entirety, indicates that the judge, by nodding, did not give an answer to the
juror's question but simply acknowledged that she had heard the juror's question. The
judge then proceeded to advise the juror of the proper procedure for submitting a question
to the court. The juror, however, never submitted the question. Consequently, the
statutory mandate of answering a jury's question in open court in the presence of Killings

35
was never implicated because the district court judge never gave an answer to the jury
foreman's question.

Under the facts of this case, we conclude that the brief interaction the jury foreman
initiated with the district court judge did not violate Killings' constitutional or statutory
rights to be present at all critical stages of his criminal prosecution.

CUMULATIVE ERROR

Next, Killings asserts that even if the issues that he has raised do not rise to the
level of reversible error individually, the cumulative effect of these errors operated to
deny him a fair trial, requiring reversal of his conviction.

Cumulative trial errors, when considered collectively, may require reversal of the
defendant's convictions when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. If the evidence is overwhelming against
the defendant, however, no prejudicial error may be found based upon this cumulative
error rule. State v. Burns, 295 Kan. 951, 960, 287 P.3d 261 (2012).

In the preceding analysis, we assumed the existence of one error—the district
court's failure to instruct on second-degree intentional murder—and found the presence
of another—the prosecutor's improper comment during closing arguments regarding
Killings' decision to exercise his right to a jury trial. But based on the overwhelming
evidence presented at trial establishing Killings' guilt for premeditated murder, we found
both errors harmless. Considering the errors collectively, we conclude that they did not
aggregate so as to deny Killings a fair trial. We reach this conclusion based on the errors
being unrelated to one another and the overwhelming evidence presented at trial, which

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included testimony from five eyewitnesses, establishing that Killings, with premeditation,
murdered Jackson.

In light of the record as a whole, we conclude there is not a reasonable possibility
the combined errors affected the outcome of the trial.

HARD 50 LIFE SENTENCE

After Killings was found guilty of premeditated first-degree murder, the State
sought a hard 50 life sentence, alleging Killings knowingly or purposely killed or created
a great risk of death to more than one person (risk of death aggravator). See K.S.A. 21-
4636(b). The evidence presented at trial established that Killings shot at Jackson multiple
times, hitting him once, while Jackson and four other individuals were inside McCray's
bedroom. Citing this evidence, the district court found Killings risked the lives of more
than one person when he shot at Jackson.

At sentencing, the State also asked that the district court consider Killings' actions
while incarcerated and awaiting sentencing in determining whether to impose a hard 50
life sentence. Through the testimony of jail staff, the State presented evidence at
sentencing that (1) Killings punched another inmate at the Shawnee County Detention
Center; (2) he resisted officers' attempts to remove him from his cell and ultimately had
to be tased (Killings' actions resulted in his sentencing hearing being continued to a later
date); and (3) after being tased, jail staff searched Killings and found a shank tucked
between two socks he was wearing on one foot. The district court judge stated that she
also considered this evidence in imposing a hard 50 life sentence.

Now on appeal, Killings raises three arguments for why his hard 50 sentence
should be reversed: (a) The aggravating factors used to impose the sentence should have

37
been proven to a jury beyond a reasonable doubt; (b) insufficient evidence supported the
district court's finding of the risk of death aggravator; and (c) the district court erred in
relying in part on a nonstatutory factor (behavior in jail while awaiting sentencing) to
impose the hard 50 life sentence.

In State v. Soto, 299 Kan. 102, 120-24, 322 P.3d 334 (2014), this court analyzed
Kansas' hard 50 life sentencing statute in light of Alleyne v. United States, 570 U.S. __,
133 S. Ct. 2151, 2155, 2160-63, 186 L. Ed. 2d 314 (2013). In Alleyne, the United States
Supreme Court held that the right to a jury trial under the Sixth Amendment to the United
States Constitution requires that any fact increasing a mandatory minimum sentence for a
crime must be proved to a jury beyond a reasonable doubt. 133 S. Ct. at 2158. Applying
Alleyne's holding to the statutory hard 50 sentencing scheme, this court in Soto
determined that the process allowing a judge to find the existence of one or more
aggravating factors, instead of requiring a jury to find those factors beyond a reasonable
doubt, violates the Sixth Amendment. Soto, 299 Kan. at 122-24.

In the present case, it is evident that the district court, pursuant to the statutory
scheme then in place, made explicit factual findings that subjected Killings to an
enhanced sentence. This was constitutional error. Based on Alleyne and Soto, we
conclude that Killings' sentence was imposed in violation of his Sixth Amendment right
to a jury trial. Because the State failed to argue on appeal whether the hard 50/Alleyne
error in this case could be declared harmless, we refrain from addressing that issue.
Accordingly, we must vacate Killings' hard 50 life sentence and remand for resentencing.
Consistent with Soto, and State v. Astorga, 299 Kan. 395, 401-02, 324 P.3d 1046 (2014),
we refrain from addressing whether the amended hard 50 sentencing statute, K.S.A. 2013
Supp. 21-6620, should be applied retroactively to Killings because such a question is not
yet ripe for appeal. Accordingly, the decision in this case does not prevent the parties

38
from presenting their respective arguments to the district court at resentencing regarding
application of the amended hard 50 sentencing scheme.

With regard to Killings' argument that insufficient evidence supported the district
court's finding of the risk of death aggravator, in Soto we addressed Soto's claim that the
evidence of the aggravating factor was insufficient, in which case remand would have
been inappropriate under K.S.A. 2013 Supp. 21-6620(e). The Soto court stated: "While
we decline to decide at this juncture whether Soto could be resentenced under the
amended hard 50 sentencing statute, we find it prudent to address Soto's claim that the
evidence of the aggravating circumstance was insufficient." 299 Kan. at 129. We
followed this same approach in several subsequent cases. See State v. Hayes, 299 Kan.
861, 866-69, 327 P.3d 415 (2014); State v. Lloyd, 299 Kan. 620, 642-45, 325 P.3d 1122
(2014); State v. DeAnda, 299 Kan. 594, 602-05, 324 P.3d 1115 (2014); Astorga, 299 Kan.
at 397-404; State v. Hilt, 299 Kan. 176, 201-06, 322 P.3d 367 (2014).

Recently, in State v. Roeder, 300 Kan. __, 336 P.3d 831, 859 (2014), we
reexamined this line of cases and concluded that "[o]nce the court determined that Soto's
sentence had to be vacated because of the unconstitutional sentencing scheme, the
question of whether sufficient evidence existed to meet the requirements of the
unconstitutional statute was rendered moot." In this case, like in Roeder, questions
regarding the sufficiency of any aggravating factor evidence will be germane only if the
prosecutor elects to seek resentencing of Killings under the retroactive provision of
K.S.A. 2013 Supp. 21-6620(e). And if the prosecutor so elects, the evidence—and even
the aggravating factors relied upon—may differ from what was previously presented.
Consequently, "[w]hether the sentence might also have been subject to being vacated
based upon an insufficiency of the evidence if the sentencing scheme had not been found
unconstitutional is an academic question we need not answer." Roeder, 300 Kan. __, 336
P.3d at 859.
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 Consistent with our holding in Roeder, we do not address whether sufficient
evidence supported the risk of death aggravator found by the sentencing court in this
case. Furthermore, Killings' argument that the district court erred in considering a
nonstatutory factor in imposing the hard 50 life sentence is rendered moot based on our
decision to vacate his hard 50 life sentence and remand the case for resentencing.

LIFETIME POSTRELEASE SUPERVISION

Finally, Killings contends that the district court erred in imposing lifetime
postrelease supervision as part of his life sentence for his off-grid, premeditated first-
degree murder conviction.

This court has previously decided this issue in Killings' favor, stating that "'[a]n
inmate who has received an off-grid indeterminate life sentence can leave prison only if
the [Kansas Prisoner Review] Board grants the inmate parole. Therefore, a sentencing
court has no authority to order a term of [lifetime] postrelease supervision in conjunction
with an off-grid indeterminate life sentence.'" State v. Summers, 293 Kan. 819, 832, 272
P.3d 1 (2012) (quoting State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 [2011] ); see
State v. Harsh, 293 Kan. 585, 590, 265 P.3d 1161 (2011) (parole is separate and distinct
from the sentence; if defendant with hard 25 life sentence ever leaves prison, it will be
because parole was granted).

Based on the above caselaw, the district court erred in imposing lifetime
postrelease supervision. At resentencing, if Killings receives an indeterminate life
sentence for his premeditated first-degree murder conviction, the district court should
impose lifetime parole in conjunction with the indeterminate life sentence.

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 Killings' conviction is affirmed, sentence vacated, and case remanded with
directions.

MICHAEL J. MALONE, Senior Judge, assigned. 1

1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 108,021
to fill the vacancy on the court created by the appointment of Justice Nancy Moritz to the
United States 10th Circuit Court of Appeals under the authority vested in the Supreme
Court by K.S.A. 20-2616.
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