State v. Knighten

No. 110,718

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRAVIS M. KNIGHTEN,
Appellant.

SYLLABUS BY THE COURT

1.
District courts use a three-step analysis to resolve challenges based on Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). First, the court must
determine whether the defendant has made a prima facie showing that the prosecutor
exercised peremptory challenges on the basis of race. If so, the burden shifts to the
prosecutor to give race-neutral reasons for striking the prospective jurors at issue. At this
point, the burden shifts back to the defendant for purposes of proving purposeful
discrimination.

2.
To establish a prima facie case of intentional racial discrimination as required in
the first step of the analysis in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.
Ed. 2d 69 (1986), the defendant must show that the prosecutor has exercised peremptory
challenges to remove venire members from the jury and that this fact, along with any
other relevant circumstances, raises an inference that the government used the
peremptory challenges to exclude members of the venire panel on account of their race.
Upon a prima facie showing, the burden shifts to the government to come forward with a
racially neutral explanation for its peremptory challenges. If the government comes

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forward with a racially neutral explanation, the district judge then must decide the
ultimate question of whether the defendant carried his or her burden of proving
purposeful discrimination. While a Batson claim involves a three-step process, the burden
of persuasion always remains with the party opposing a peremptory challenge.

3.
The preliminary issue of whether the defendant has made a prima facie showing
that the State used peremptory challenges on the basis of race becomes moot if the trial
court goes on to rule on the ultimate question of discrimination.

4.
The burden to provide race-neutral reasons for striking prospective jurors is only
one of production, not persuasion, and, unless a discriminatory intent is inherent in the
answer, the offered reason will be deemed race-neutral.

5.
In order to determine whether the reasons offered by the State for striking certain
jurors revealed an inherently discriminatory intent or whether the offered reason should
be deemed race-neutral, the court must necessarily have before it some reason why the
State decided to strike the jurors.

6.
The personal nature of a defendant's statutory and constitutional rights to be
present at all critical stages of a trial means that they cannot be waived by counsel's mere
failure to object.

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7.
The trial court is statutorily required to respond to all questions from a deliberating
jury in open court or in writing, and the defendant is required to be present during any
response if given in open court, unless such presence is waived.

8.
Under the federal constitutional harmless error test, an error is only harmless
where the party benefitting from the error persuades the court beyond a reasonable doubt
that the error complained of will not or did not affect the outcome of the trial in light of
the entire record, i.e., proves there is no reasonable possibility that the error affected the
verdict.

9.
The defendant in a criminal case has a statutory and constitutional right to be
present during the discussion of any written questions presented by the jury, unless the
defendant has waived his or her presence. A lack of evidence in the record establishing a
defendant's presence or his or her waiver requires appellate courts to presume that the
defendant's rights were violated.

10.
The trial court is statutorily required to instruct the jury on lesser included offenses
where there is some evidence that would reasonably justify a conviction of the lesser
included offense.

11.
Voluntary manslaughter is knowingly killing a human being committed upon a
sudden quarrel or heat of passion.

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12.
In order to prove voluntary manslaughter, there must have been legally adequate
provocation. Provocation can be a legal defense to a charge of voluntary manslaughter if
such provocation is shown to have been calculated to deprive a reasonable person of self-
control and to cause the defendant to act out of passion rather than reason. Mere words or
gestures, however insulting, do not constitute adequate provocation. The test for
sufficiency of provocation is objective, not subjective.

13.
An appellate court is statutorily precluded from reviewing any sentence that is
imposed within the presumptive sentence set forth in the applicable grid box.

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed April 24, 2015.
Affirmed in part, reversed in part, dismissed in part, and remanded with instructions.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon and Boyd K. Isherwood, assistant district attorneys, Marc Bennett, district attorney,
and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.

STANDRIDGE, J.: Travis M. Knighten appeals from his convictions for one count
of second-degree intentional murder and one count of aggravated battery, arguing the
district court erred in denying his challenge based on Batson v. Kentucky, 476 U.S. 79,
106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), in failing to require his presence during a critical
part of the proceedings, and in failing to deny his request for an instruction on the lesser
offense of voluntary manslaughter. Knighten also argues the district court violated his
Sixth and Fourteenth Amendment rights by sentencing him without requiring either the

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aggravating factors or his criminal history score to be proven to a jury beyond a
reasonable doubt.

FACTS

At around 2 a.m. on May 7, 2011, Carl Meridy, Kedrick Harrison, and Mario
Brown went to a night club located at the corner of 13th and Hillside in Wichita. When
they got to the club, it was closed, so they hung out in the parking lot. There were
approximately 50-80 people in the parking lot at the time. Many people were leaving in
their cars.

While Meridy was standing in the parking lot, he saw a dark-colored sport utility
vehicle (SUV) pull up. He and another witness saw a hand holding a gun reach out of the
front passenger side window of the SUV and fire shots. Meridy was struck by bullets in
the right leg and the left arm. Brown was also struck by bullets in the back, shoulder,
chest, and thigh. Brown and Meridy were both transported to a hospital. Meridy was
treated and survived to testify at trial. Brown ultimately was pronounced dead at
3:35 a.m.

Witnesses at the scene described the SUV as a black vehicle with a white roof.
They could not provide an exact make and model but told police it looked boxy, like a
military vehicle. Later, the police recovered security footage belonging to a neighboring
business and were able to determine that the SUV was a Toyota FJ Cruiser. The police
identified Addison Buck as the owner of the vehicle. When interviewed, Buck told police
that she believed her boyfriend, Arthur Gary, had the SUV on the night of the shooting.

The police were not able to immediately locate Gary and believed he may have
left Wichita. In December 2011, about 7 months after the shooting incident, Detective
Tim Relph learned that Gary might be back in town. Relph attempted to contact Gary

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through Buck. Gary later called Relph and agreed to meet him. When they met, Gary told
Relph that four people were with him in the SUV at the time of the shooting: Jasper
Gray, Ebony James, Dashawn Robertson, and Knighten. Gary said he was driving and
Knighten was sitting in the front passenger seat. As they drove through the parking lot of
the club, someone started walking toward the SUV and gesturing. Gary then saw
Knighten pull a gun out of his pants pocket and fire it.

Knighten was charged with first-degree murder and aggravated battery. He pled
not guilty to both counts, and his case proceeded to jury trial. After voir dire concluded,
both the State and Knighten raised Batson challenges. Knighten's Batson challenge was
based on the State's decision to strike two of the four potential African-American jurors
from the jury pool. The State, on the other hand, claimed that Knighten had struck a
disproportionate number of white males from the jury pool. The district court denied both
Batson challenges.

At trial, the jury heard testimony from all the passengers in the SUV except
Knighten. Gary passed away prior to trial, so his preliminary examination testimony was
read to the jury. Gary testified that he was driving the SUV and Knighten was in the
passenger seat at the time of the shooting. He said that a man he did not know started
walking up to the SUV making gestures. He observed Knighten take a gun out of his
pants pocket and fire it. Gary also stated that after the shooting, Knighten told him that he
was sorry that the incident had happened in the vehicle.

Ebony testified that she was sitting in the back seat on the passenger side and that
Knighten was in the front passenger seat. She said she put her head down as soon as she
heard shots and did not know whether the shots came from inside or outside the vehicle.
She testified that she never actually saw a gun.

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 Jasper testified that she was sitting in the middle of the back seat of the SUV at the
time of the shooting and Knighten was in the front passenger seat. Jasper said she also
put her head down as soon as she heard shots and did not see where the shots were
coming from. This testimony, however, conflicted with earlier statements she made in an
interview with Relph when she identified Knighten as the individual who fired the
gunshots.

Robertson testified that he was in the back middle seat and, like the rest of the
occupants, confirmed that Knighten was in the front passenger seat. Robertson said that
when the group got to the parking lot of the club, somebody came up on the SUV like
"they was feeling some kind of war." Robertson testified that he did not see a gun or
weapon of any kind in the hands of the person who was approaching the vehicle but that
the individual was with a large group of guys walking up to the SUV. He testified that
soon thereafter, Knighten started shooting at them.

Knighten did not testify. But his older sister, Sheronda Knighten, and his cousins,
Kendra Hunter and Shaquala Horn, all testified that Knighten was babysitting Sheronda's
daughter on the night of the shooting.

After the close of evidence, Knighten requested that the jury be instructed on
voluntary manslaughter as a lesser included offense of the first-degree murder charge.
The district court denied the request.

During deliberations, the jury asked two questions in writing. The district court
held a conference in chambers with the attorneys to discuss the questions and how to
respond. Then, the district court conducted a hearing on the record to discuss the
proposed answers. Knighten was present at the hearing. During the hearing, the attorneys
for both sides approved the proposed responses on the record. Knighten's attorney also
informed the court that he had discussed the matter with Knighten and that Knighten

7
seemed fine with the decision not to object to the answers. The district court judge then
instructed the bailiff to deliver the written answers to the jury. The jury eventually found
Knighten guilty of intentional second-degree murder and aggravated battery.

Prior to sentencing, Knighten filed a motion requesting a durational departure
sentence. The motion was denied. The district court sentenced Knighten to 285 months'
imprisonment for his second-degree murder conviction. It also sentenced him to 9
months' imprisonment for his aggravated battery conviction. The district court ordered
that the sentences should run consecutively.

ANALYSIS

On appeal, Knighten claims the district court erred (1) by denying his Batson
challenge without requiring the State to provide race-neutral reasons for striking two
potential jurors; (2) by failing to include Knighten in its meeting with counsel to discuss
questions asked by the jury during deliberations; (3) by denying his request to instruct the
jury on the lesser offense of voluntary manslaughter; (4) by sentencing him without
requiring either the aggravating factors or his criminal history score to be proven to a jury
beyond a reasonable doubt; and (5) by violating his constitutional rights. We discuss each
of Knighten's claims of error in turn.

1. Batson challenge

In Batson, the United States Supreme Court determined that the Equal Protection
Clause forbids the State from challenging potential jurors solely on account of their race.
476 U.S. at 89. District courts use a three-step analysis to resolve Batson challenges, and
each step has a distinct standard of review on appeal. State v. McCullough, 293 Kan. 970,
992, 270 P.3d 1142 (2012).

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 First, a defendant must make a prima facie showing that the prosecutor exercised
peremptory challenges on the basis of race. This court exercises plenary review over this
question. In the second step, the burden shifts to the prosecutor to give race-neutral
reasons for striking prospective jurors. In this step, the prosecutor only has the burden of
production, not persuasion, so unless a discriminatory intent is inherent in the answer, the
offered reason will be deemed race-neutral. Finally, the district court must determine
whether the defendant ultimately carried his or her burden of proving purposeful
discrimination. Appellate courts review the district court's determination for abuse of
discretion. McCullough, 293 Kan. at 992.

At the beginning of the Batson hearing in this case, the following exchange
occurred:

"THE COURT: Before we get to the Batson, I will note the State struck two
black males [and] one Hispanic male. Defense has struck one apparent female. I will note
the majority of the panel composed is white. I didn't really have a head count on gender.
"Mr. Owens, you raised the Batson issue first. Go ahead, please.
"MR. OWENS [defense counsel]: There were limited numbers of African-
American potential jurors. I believe there were four. Half of them have been struck. And
State needs to give a race neutral reason.
"THE COURT: If I find there's a purposeful pattern of discrimination. I will note
they have also left on [R.H.], number 22, who[] is a black male, as you have as well. And
[C.E.], number 24, a black female, as you have also. Okay."

A short time later, after discussing the State's reasons for raising its Batson
challenge, the following exchange occurred:

"THE COURT: You guys really want to throw the panel out and start over brand
new? If you want to, I'm happy to do it. It won't be me. It will be somebody else. You
guys want to throw it out, let's throw it out. Your choice, your call.

9
 "State want to throw the panel out? No, it is your call, Jennifer [Amyx,
prosecutor], you made the request. Do you want to throw the panel out?
"MS. AMYX: No.
"THE COURT: Do you want to throw the panel out, Mr. Owens?
"MR. OWENS: No.
"THE COURT: Is there really a Batson challenge? Or are we just posturing?
"MS. AMYX: Judge, it is not posturing when the first four come out and then it
changes so . . .
"MR. OWENS: Just for the record, one of the primary things that I would put a
minus by boxes would be individuals that appeared to be handgun enthusiasts. Not all of
those I struck, but they tended to be white males.
"THE COURT: I'm not asking for a race, gender, or any kind of neutral
explanation at this point. I saw the selection, I saw the individuals, I heard their answers.
I'm aware that quite honestly on race alone the State wins on the number of strikes to
minorities.
"I'm not going to find any purposeful pattern or discrimination by either side, and
I will deny the Batson challenges on both sides. I think what we have is a pretty
representative jury.
"If either side wants to place race or gender neutral reason on the record, you can.
I will give you that choice.
"Mr. Owens, you want to add to what you've already said?
"MR. OWENS: No, Your Honor.
"THE COURT: Ms. Amyx.
"MS. AMYX: No, Judge.
"THE COURT: All right. We're closed."

Knighten argues that the district court erred by denying his Batson challenge
without engaging in the requisite analysis. Specifically, Knighten asserts the district court
erroneously failed to engage in the first two steps of the Batson analysis and instead ruled
only on the ultimate question of discrimination set forth in the third step.

To establish a prima facie case of intentional racial discrimination as required in
the first step of the Batson analysis, the defendant must show that the prosecutor has
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exercised peremptory challenges to remove venire members from the jury and that this
fact, along with any other relevant circumstances, raises an inference that the government
used the peremptory challenges to exclude members of the venire panel on account of
their race. State v. Edwards, 264 Kan. 177, 193-94, 955 P.2d 1276 (1998)
(acknowledging that the holding in Batson was expanded by the United States Supreme
Court in Powers v. Ohio, 499 U.S. 400, 415, 111 S. Ct. 1364, 113 L. Ed. 2d 411 [1991],
to prohibit striking minority jurors who are a different race or ethnicity than the accused).
Upon review of the record, it appears the district court did not decide whether Knighten
made a prima facie showing of race discrimination under Batson. But Knighten argues
that the preliminary issue of whether the defendant has made a prima facie showing
becomes moot if the trial court went on to rule on the ultimate question of discrimination.
See State v. Bolton, 271 Kan. 538, 540-41, 23 P.3d 824 (2001) (citing Hernandez v. New
York, 500 U.S. 352, 359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 [1991]; Edwards, 264 Kan.
at 194). The parties do not dispute that the district court in this case did, indeed, rule on
the ultimate question of discrimination here. Accordingly, we find the issue of whether
Knighten met his prima facie burden is moot. See Bolton, 271 Kan. at 540-41.

But our finding of mootness with regard to the first step of the Batson test is not
determinative of Knighten's claim of error on appeal. Specifically, Knighten asserts the
court abused its discretion by deciding the State did not engage in a purposeful pattern of
discrimination under the third step without deciding whether the State met its burden to
produce race-neutral reasons for striking the jurors at issue under the second step. "A
district court abuses its discretion when: (1) no reasonable person would take the view
adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent
evidence does not support a finding of fact on which the exercise of discretion is based.
[Citation omitted.]" State v. Smith, 299 Kan. 962, 970, 327 P.3d 441 (2014). Substantial
competent evidence is that which

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 "'possesses both relevance and substance and which furnishes a substantial basis of fact
from which the issues can reasonably be resolved. In other words, substantial evidence is
such legal and relevant evidence as a reasonable person might accept as being sufficient
to support a conclusion.' (Emphases added.) Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 2, 136
P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007)." State v. Gonzalez, 290 Kan. 747,
757, 234 P.3d 1 (2010).

To that end, Knighten claims the court erred as a matter of law by deciding the
State did not engage in purposeful discrimination under the third step without first
deciding whether the State met its burden of production under the second step. Knighten
also claims the district court erred as a matter of fact because there is no evidence in the
record, let alone substantial competent evidence, to establish that the State had a race-
neutral reason for striking the two African-American jurors. See McCullough, 293 Kan.
at 992 (the burden to provide race-neutral reasons for striking prospective jurors is only
one of production, not persuasion and, unless a discriminatory intent is inherent in the
answer, the offered reason will be deemed race-neutral).

In support of his request to remand the matter for a new trial or for a proper
Batson hearing based on this alleged abuse of discretion, Knighten compares the facts in
his case to those in Bolton. In deciding the Batson issue in Bolton, the district judge stated
that he relied on a review of his own notes regarding the jurors who were challenged and
the objections lodged. 271 Kan. at 540. On appeal, the Kansas Supreme Court
specifically held that "[i]n the typical peremptory challenge inquiry, the decisive question
will be whether counsel's race-neutral explanation for a peremptory challenge should be
believed." Bolton, 271 Kan. at 541 (citing Hernandez, 500 U.S. at 365). Upon review of
the record, however, the Bolton court found no evidence to support a finding that the
State relied on race-neutral reasons for striking the jurors. Given this lack of evidence, the
court held there was insufficient evidence upon which to decide whether the reasons
offered by the State for striking the jurors revealed an inherently discriminatory intent or
whether the offered reason should be deemed race-neutral. Given appellate courts do not
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have the opportunity to see or hear examination of the jurors, the court remanded the
matter to the district court for a Batson hearing. Bolton, 271 Kan. at 544-45.

In this case, the district judge specifically advised the parties during the Batson
hearing that he was "not asking for a race, gender, or any kind of neutral explanation at
this point." The judge then denied Knighten's Batson challenge, stating, "I saw the
selection, I saw the individuals, I heard their answers. I'm aware that quite honestly on
race alone the State wins on the number of strikes to minorities. I'm not going to find any
purposeful pattern of discrimination by either side." Although the court eventually
provided the State an opportunity to place race-neutral explanations on the record after
denying Knighten's Batson challenge, the State declined to do so.

As in Bolton, there is insufficient evidence in this record to decide whether the
State's decision to strike the jurors was discriminatory or race-neutral. In order to
determine whether the reasons offered by the State for striking the jurors revealed an
inherently discriminatory intent or whether the offered reason should be deemed race-
neutral, we necessarily must have before us some reason why the State decided to strike
the African-American jurors. The record reveals that the district court relied on its own
notes and experiences from the jury selection process to determine the ultimate question
of discrimination instead of asking the State to provide race-neutral reasons for striking
the African-American jurors. As such, we find the court erred as a matter of law in ruling
that the State did not engage in a purposeful pattern of discrimination without first
requiring the State to produce race-neutral reasons. And in the absence of any race-
neutral reasons by the State for striking the jurors that it did, we also find the court's
ruling lacks substantial competent evidence in the record. For both of these reasons, we
conclude the district court abused its discretion in finding the State did not engage in a
purposeful pattern of discrimination and, as our Supreme Court did in Bolton, we remand
this matter for a proper Batson hearing. See Bolton, 271 Kan. at 544-45.

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2. Defendant's presence at all critical stages of trial

Knighten argues the district court violated his constitutional and statutory rights to
be present at every critical stage of his trial. Although Knighten did not raise this issue
below, our Supreme Court recently held that the personal nature of a defendant's statutory
and constitutional rights to be present at all critical stages means that they cannot be
waived by counsel's mere failure to object. State v. Verser, 299 Kan. 776, 788, 326 P.3d
1046 (2014). We therefore will address Knighten's argument, which raises a question of
law over which this court exercises unlimited review. 299 Kan. at 787.

While deliberating, the jury in this case submitted two written questions to the
district court through the bailiff. The first question was: "Further define 'great bodily
harm' [and] does it include gunshot wounds?" The second question was: "Is touching
physical contact by a bullet?" The district court held a conference in chambers to discuss
the questions and how to respond. After this conference, the district court conducted a
hearing on the record to discuss the proposed answers. Knighten was present at the
hearing. The proposed answers presented by the court at the hearing stated:

"1. In addition to the definition of 'great bodily harm' provided in instruction 10, Kansas
does not provide a statutory definition. It is a phrase of common words to be given
their ordinary meaning by the jury.
"2. Physical contact by a bullet can be considered touching. That is up to the jury's view
of the evidence."

The attorneys for both sides approved these responses on the record at the hearing.
Knighten's attorney also informed the court at the hearing that Knighten seemed fine with
the decision not to object to the answers. The district court judge then instructed the
bailiff to deliver the written answers to the jury.

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 Knighten contends the district court violated his constitutional and statutory rights
to be present at every critical stage of his trial by (1) improperly providing a written
answer to the questions instead of providing the answers to the jury in open court with
him present and (2) improperly excluding him from the initial discussion in chambers
held to discuss how to answer the two questions from the jury. Under the Sixth
Amendment to the United States Constitution, a defendant has the right to be present at
every critical stage of his or her trial. See State v. King, 297 Kan. 955, 968, 305 P.3d 641
(2013). K.S.A. 2014 Supp. 22-3405(a) similarly provides that a defendant in a felony
case must be present at every stage of his or her trial.

a. Written answer

K.S.A. 2014 Supp. 22-3420 sets forth the procedure to be used by a district court
in answering questions from the jury. The statute was amended during the 2014
legislative session, and the amendments became effective on July 1, 2014. Although not
raised by either party, section (d) of the amended statute requires the court to "respond to
all questions from a deliberating jury in open court or in writing" and the defendant to be
"present during any response if given in open court, unless such presence is waived."
(Emphasis added.) K.S.A. 2014 Supp. 22-3420(d). Prior to the amendment, the statute
contained no provision for answering jury questions in writing. See K.S.A. 22-3420(3).
Because subsection (f) of the amended statute expressly states that the amendments set
forth in K.S.A. 2014 Supp. 22-3420 are procedural in nature and must be construed and
applied retroactively, the district court's decision to provide a written response to the
jury's questions does not violate the statute. K.S.A. 2014 Supp. 22-3420(d), (f).

Although no statutory rights are implicated due to the express retroactivity of the
amendments, the Kansas Supreme Court recently held in Verser that a defendant's rights
under the Sixth Amendment also are violated if the court provides a written answer to a
jury question without the defendant present in the jury room when the written answer is

15
received. 299 Kan. at 788-89. We note, however, that the constitutional violation found
by the court in Verser was inextricably intertwined with its finding of a statutory
violation under the prior version of K.S.A. 22-3420. Thus, we question whether a
constitutional right under the Sixth Amendment still exists in the absence of an
underlying statutory right to have the court respond to jury questions verbally in open
court with the defendant present. We find it unnecessary to answer this question today,
however, because even if there was a constitutional violation under the facts presented in
this case, any resulting error was harmless.

When a defendant suffers a violation of his or her right to be present, Kansas
courts apply the federal constitutional harmless error test. State v. Gleason, 299 Kan.
1127, 1182, 329 P.3d 1102 (2014), cert. granted 83 USLW 3290 (2015). Under this test,
an error is only harmless where the party benefitting from the error persuades the court
"beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., proves there is no reasonable
possibility that the error affected the verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d
801 (2011), cert. denied 132 S. Ct. 1594 (2012) (citing Chapman v. California, 386 U.S.
18, 87 S. Ct. 824, 17 L. Ed. 3d 705, reh. denied 386 U.S. 987 [1967]). Four factors are
relevant to this analysis:

"(1) the strength of the prosecution's case; (2) whether the defendant lodged an objection;
(3) whether the communication concerned some critical aspect of the trial or was instead
an innocuous and insignificant matter, as well as the manner in which the communication
was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the
constitutional error." State v. Bowen, 299 Kan. 339, 357, 323 P.3d 853 (2014).

With regard to the first factor relevant to our harmless error analysis, we find the
prosecution's case here was strong. Every other passenger of the SUV testified that
Knighten was in the SUV at the time of the shooting, and two passengers testified that

16
they saw Knighten fire the shots that killed Brown and injured Meridy. Therefore, this
factor weighs in favor of a finding that the error was harmless.

With regard to the second factor, Knighten did not lodge an objection below. This
also weighs in favor of harmless error.

As to the third factor, we find the substance of the jury's questions related to a
critical aspect of the trial: the elements of aggravated battery. But we also find the
district court's written responses to the jury questions were correct statements of law and
could not have contributed to the verdict. The jury's questions asked for further definition
of great bodily harm and if physical contact by a bullet constituted "touching." The court
responded to the first question by correctly referring the jury to the definition of great
bodily harm provided in jury instruction 10 and stating that Kansas does not provide a
statutory definition of great bodily harm. In response to the second question, the court
correctly responded that "[p]hysical contact by a bullet can be considered touching. That
is up to the jury's view of the evidence." In its responses, the district court did not
misstate the law, did not provide additional information, and did not place any emphasis
on whether the jury should find Knighten guilty or not guilty.

Regarding the fourth factor, both Knighten and his counsel were aware of the
procedure used to respond to the jury's questions but chose not to pursue any posttrial
remedies. Thus, this fourth factor also weighs in favor of harmless error.

Because none of the factors to be considered in the harmless error analysis weigh
in favor of Knighten, we conclude beyond a reasonable doubt that the court's decision to
provide written answers to the jury without Knighten's presence instead of verbal answers
in open court had no impact on the outcome of the trial and, therefore, was harmless.

17
 b. Chambers conference

Next, Knighten contends the district court violated his constitutional and statutory
rights to be present at every critical stage of his trial by improperly excluding him from
the initial discussion in chambers held to discuss how to answer the two questions from
the jury. Because the statutory language clearly expresses the legislature's intent that it be
applied retroactively, we must utilize the amended statute in conducting our analysis. To
that end, K.S.A. 2014 Supp. 22-3420(d) specifically requires the defendant to be present
during the discussion of any written questions presented by the jury, unless the defendant
has waived his or her presence. Although Knighten does not deny he was present at the
initial conference in chambers, he alleges we must presume he was improperly excluded
because there is no evidence in the record affirmatively establishing his presence or his
waiver. See State v. Jackson, 49 Kan. App. 2d 116, 138-39, 305 P.3d 685 (2013), rev.
denied 299 Kan. __ (May 29, 2014). We agree that the lack of evidence establishing his
presence or his waiver requires us to presume that Knighten's rights under K.S.A. 22-
3405 and the Sixth Amendment were violated and constitutes error. See Verser, 299 Kan.
at 788 (a violation of the procedural requirements set forth in K.S.A. 22-3420 violates
both K.S.A. 22-3405 and the Sixth Amendment).

Nevertheless, we find this error was harmless. As set forth above, there are four
factors relevant to deciding whether an error is harmless under the federal constitutional
harmless error test. See Ward, 292 Kan. at 569 (an error is harmless under the federal
constitutional harmless error test when the party benefitting from the error persuades the
court "beyond a reasonable doubt that the error complained of will not or did not affect
the outcome of the trial in light of the entire record, i.e., proves there is no reasonable
possibility that the error affected the verdict"). Again, these four factors are

"(1) the strength of the prosecution's case; (2) whether the defendant lodged an objection;
(3) whether the communication concerned some critical aspect of the trial or was instead

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 an innocuous and insignificant matter, as well as the manner in which the communication
was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the
constitutional error." Bowen, 299 Kan. at 357.

To place our discussion of these four harmless error factors in the context
presented here, we reiterate the two questions asked by the jury and initially discussed in
chambers when Knighten allegedly was not there. The first question was: "Further define
'great bodily harm' [and] does it include gunshot wounds?" The second was: "Is touching
physical contact by a bullet?" The answers ultimately provided to the jury were as
follows:

"1. In addition to the definition of 'great bodily harm' provided in instruction 10, Kansas
does not provide a statutory definition. It is a phrase of common words to be given
their ordinary meaning by the jury.
"2. Physical contact by a bullet can be considered touching. That is up to the jury's view
of the evidence."

With regard to the first factor relevant to our harmless error analysis, we already
have found the prosecution's case here was strong. In support of this finding, we noted
that every other passenger of the SUV testified that Knighten was in the SUV at the time
of the shooting, and two passengers testified that they saw Knighten fire the shots that
killed Brown and injured Meridy. Once again, this factor weighs in favor of a finding that
the error was harmless.

With regard to the second factor, Knighten's attorney participated in the initial
conference held in chambers but did not lodge an objection to Knighten's alleged
absence. Thus, this also weighs in favor of harmless error.

As to the third factor, we again find the substance of the jury's questions related to
a critical aspect of the trial but that the district court's written responses to the jury's

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questions were correct statements of law and could not have contributed to the verdict.
Moreover, we find it significant that although there is no affirmative evidence to establish
that Knighten was present when the court held the conference in chambers to discuss the
jury's questions and how to respond, the court thereafter conducted a hearing on the
record to discuss the proposed answers. The record reflects that Knighten was present at
this hearing. And at that hearing, the court reviewed the proposed answers that ultimately
were given to the jury in response to its questions, the attorneys for both sides approved
these responses on the record, and Knighten's attorney informed the court that Knighten
seemed fine with the decision not to object to the answers. None of the parties objected to
the content of the answers at that time, and no objection to the content of the answers has
been raised to date. Given Knighten ultimately did have an opportunity to object and
provide input on the answers to be given to the jury, this third factor also weighs in favor
of harmless error.

Finally, both Knighten and his counsel were aware of the procedure used to
respond to the jury's questions but chose not to pursue any posttrial remedies. Thus, the
fourth factor also weighs in favor of harmless error.

Because none of the factors to be considered in the harmless error analysis weigh
in favor of Knighten, we conclude beyond a reasonable doubt that based on our
consideration of the four factors, Knighten's alleged absence from the initial conference
in chambers had no impact on the outcome of the trial and, therefore, was harmless.

3. Instruction on lesser included offense

At trial, Knighten requested that the jury be instructed on voluntary manslaughter
as a lesser included offense of first-degree murder. The district court declined to give
such an instruction, which Knighten now argues was erroneous. K.S.A. 2014 Supp. 22-
3414(3) requires a district court to instruct the jury on lesser included offenses where

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there is some evidence that would reasonably justify a conviction of the lesser included
offense. This duty to instruct applies even if the evidence is weak or inconclusive. State v.
Maestas, 298 Kan. 765, Syl. ¶ 6, 316 P.3d 724 (2014). When an offense includes a lesser
included crime, failure to instruct on the lesser crime is erroneous only if the instruction
would have been factually appropriate under K.S.A. 2014 Supp. 22-3414(3). State v.
Armstrong, 299 Kan. 405, 432, 324 P.3d 1052 (2014). Thus, the standard of review for
this court is whether, after review of all the evidence viewed in the light most favorable
to the prosecution, we are convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Armstrong, 299 Kan. at 432-33.

Here, a voluntary manslaughter instruction would not have been factually
appropriate. Voluntary manslaughter is knowingly killing a human being committed upon
a sudden quarrel or heat of passion. K.S.A. 2014 Supp. 21-5404(a)(1). In order to prove
voluntary manslaughter, there must have been legally adequate provocation. Provocation
is legally adequate to justify a conviction for voluntary manslaughter if it is calculated to
deprive a reasonable person of self-control and to cause the defendant to act out of
passion rather than reason. Mere words or gestures, however insulting, do not constitute
adequate provocation. Finally, the test for sufficiency of provocation is objective, not
subjective. State v. Vasquez, 287 Kan. 40, 54-55, 194 P.3d 563 (2008).

Upon review of the record, we find no evidence of any provocation in this case.
No witness testified that any words were exchanged between the victims and Knighten.
Robertson did testify that someone in the parking lot was "feeling some kind of war" and
that prior to the shooting, a large group of guys started walking toward the SUV.
Robertson affirmatively stated, however, that he did not see a weapon of any kind in
anyone's hand other than in Knighten's.

Knighten cites Robertson's testimony and argues that the mere act of walking up to
the SUV in a dark, crowded parking lot establishes some evidence of adequate

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provocation to justify a conviction for voluntary manslaughter. But even viewed in the
light most favorable to the prosecution, no evidence appears in the record to suggest that
any person provoked Knighten. Thus, a jury could not reasonably convict Knighten of
voluntary manslaughter because no evidence of legally adequate provocation was
presented to the jury. A voluntary manslaughter instruction would not have been factually
appropriate under the circumstances presented here. The district court did not err by
declining to instruct the jury on voluntary manslaughter as a lesser included offense.

4. Use of criminal history to determine criminal history score

Knighten's presumptive sentence was determined by using his criminal history. He
argues that his criminal history was not proved to a jury beyond a reasonable doubt, and
therefore his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), were violated. He concedes in his brief that the Kansas
Supreme Court previously rejected this claim in State v. Ivory, 273 Kan. 44, 41 P.3d 781
(2002), but states that he includes this argument in order to preserve it for possible federal
review. Consequently, his claim fails.

5. Use of criminal history within sentencing grid box

Knighten claims that the district court violated his constitutional rights under
Apprendi by sentencing him to the highest number in the applicable sentencing grid box
found at K.S.A. 2014 Supp. 21-6804(a). He argues that, in order to do so, the district
court necessarily relied on aggravating factors that were not proved to a jury beyond a
reasonable doubt.

First, Knighten misstates the law when he asserts that a district court was required
to find aggravating factors in order to impose the highest number in the applicable grid
box under the Kansas sentencing guidelines. K.S.A. 2014 Supp. 21-6804(e)(1) clearly

22
states that the district court has discretion to sentence a criminal defendant to any
sentence within the applicable grid box. Further, K.S.A. 2014 Supp. 21-6820(c)(1)
forbids an appellate court from reviewing any sentence within the presumptive sentence
for the crime charged. In the context of a sentencing challenge similar to Knighten's, the
Kansas Supreme Court expressly ruled that a sentence which falls within a grid block
under the Kansas sentencing guidelines may be considered a presumptive sentence and,
because it is presumptive, appellate courts lack jurisdiction to review it. State v. Johnson,
286 Kan. 824, 840-42, 190 P.3d 207 (2008). Accordingly, we dismiss Knighten's claim of
error on this issue.

In sum, we find the district court abused its discretion on the first claim of error
presented by Knighten; accordingly, we reverse and remand this matter for the sole
purpose of conducting a proper Batson hearing to determine whether the State met its
burden to produce race-neutral reasons for striking the jurors at issue under the second
step of the Batson analysis. In light of that determination, the district court must then
decide whether the State engaged in a purposeful pattern of discrimination under the third
step of the Batson analysis. We further find no reversible error with respect to Knighten's
second claim of error, no error at all with respect to Knighten's third claim of error, and
no jurisdiction to consider Knighten's fourth and fifth claims of error.

Affirmed in part, reversed in part, dismissed in part, and remanded for proceedings
consistent with this opinion.

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