– State v. Pruitt –

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 118,448

STATE OF KANSAS,
Appellee,

v.

HOWARD R. PRUITT,
Appellant.

SYLLABUS BY THE COURT

1.
Prosecutor's statement in summing up testimony about alleged murder weapon,
"This seems to be the shotgun, folks. I don't think there's a lot of question about that at
this point," was an impermissible personal opinion; but it does not require reversal of the
defendant's premeditated first-degree murder conviction.

2.
Prosecutor's statement that the victim deserved jurors' "consideration" was not
error, when the context of the statement demonstrates that the prosecutor was not
attempting to invoke the jury's sympathy.

3.
Prosecutor's statement, "Folks, if you're convinced beyond a reasonable doubt that
those three elements exist, you must find the defendant guilty of murder in the first
degree, as he has been charged," was not an impermissible misstatement of the law
because it forbade jury nullification.

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4.
Even if the district judge's failure to instruct sua sponte on reckless second-degree
murder and reckless involuntary manslaughter in this case is assumed to be error, the
error is not reversible under a clear error standard, when there was overwhelming
evidence that whoever shot the victim to death did so by firing a shotgun loaded with
triple-aught buck from close range after lying in wait for about 10 minutes, and strong
evidence demonstrates that the person who shot the victim was the defendant.

5.
A district judge's instructions to the jury, (a) "Such law you must follow, and you
must not substitute for it opinions of your own as to what you think the law should be";
(b) "At the end of the case, I will instruct you on the law that you must apply to the
evidence in order to reach a verdict"; and (c) "It is my duty to instruct you in the law that
applies to this case, and it is your duty to consider and follow all of the instructions. You
must decide the case by applying these instructions to the facts as you find them," are
correct statements of the law and not erroneous under State v. Boothby, 310 Kan. 619,
448 P.3d 416 (2019). They do not direct a verdict of conviction or prevent a jury from
exercising its power of nullification.

6.
The district judge in this case did not abuse his discretion in finding that no
fundamental failure due to jury misconduct occurred in the trial of the defendant's case.
The judge was able to observe the defendant's daughter, who testified about observing a
juror sleeping, and evidently made a negative credibility judgment. The judge also made
a careful record of other, unrelated trial participants' recollections, including his court
reporter's and his own; and those recollections did not match that of the defendant's
daughter.

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7.
Defendant is not entitled to reversal of his conviction under the cumulative error
doctrine.

Appeal from Butler District Court; CHARLES M. HART, judge. Opinion filed December 6, 2019.
Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.

Cheryl M. Pierce, assistant county attorney, argued the cause, and Derek Schmidt, attorney
general, was with her on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This direct appeal by defendant Howard Pruitt raises five challenges to
his first-degree premeditated murder conviction for the shotgun killing of Phillip Little.

Pruitt asserts that the prosecutor committed error during closing argument, that the
district judge should have instructed the jury on lesser included offenses of reckless
second-degree murder and reckless voluntary manslaughter, that the jury's power of
nullification was improperly foreclosed by erroneous instructions, that a new trial should
have been granted because one juror slept during part of the proceedings, and that his
conviction is infected by cumulative reversible error.

We reject all of Pruitt's arguments on error save two, and we conclude that, even if
we find one error and assume the existence of another, those two errors do not
individually or collectively command reversal of Pruitt's conviction. This is a case in

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which the defendant's guilt of first-degree premeditated murder was supported by truly
overwhelming evidence. The errors could not have made a difference in the outcome.

FACTUAL AND PROCEDURAL BACKGROUND

Bad blood developed between Pruitt and Little before the fatal shooting. Nathan
Coe, aware of their ongoing disagreement and having come to understand that Pruitt was
interested in harming or paying someone else to harm Little, called Pruitt on the night of
the shooting to let him know that Little was at Skylar Morgan's trailer home.

Coe and his father had been hanging out with Little and others at Morgan's that
evening. The others at the trailer were Morgan, Bobbie Myers, and Matthew Kreusel.
About 11 p.m., Coe and Myers left to buy liquor, eventually obtaining vodka at the home
of Michelle Morris. When they returned to the trailer, they disagreed on whether the
correct amount had been paid for the vodka, and Kreusel drove Myers back to Morris'
house to settle the issue. This left Coe, his father, and Little awake at the trailer; Morgan
was already asleep in his bedroom.

According to Coe, while Myers and Kreusel were gone, he and Little stepped onto
the porch of the trailer and Pruitt, who had been waiting outside, immediately fired a
shotgun at Little. Pruitt then fled, while Coe ran back into the trailer. Morgan would
testify at Pruitt's eventual trial that Coe woke him up and told him Little was dead on the
porch. Morgan called 911 and "got everybody in the bedroom because [he] was scared."
When Coe asked to borrow Morgan's truck, Morgan told him, "Yeah, take my truck; get
out of here. I'm scared; you're scared."

When Myers and Kreusel returned a few minutes later, Morris was with them. As
they pulled up, Myers noticed that both Morgan's truck and the car Coe and his father had

4
arrived in were gone. When Myers saw Little lying on the porch, she screamed for
Morgan to come help her. Morgan came outside and told her Little had been shot and
directed her to "step away."

When El Dorado police officers arrived at Morgan's trailer, they found Little dead
on the porch and Morgan, Myers, Kreusel, and Morris at the scene. They soon learned
that Coe and his father also had been at the trailer that evening. Eventually, Coe returned;
and the officers brought him into their station for an interview.

Coe's story shifted from less to more detailed over the series of interviews that
followed. At first he shared only the basics: He heard a "boom" when he left the trailer
with Little, realized Little had been shot, went into the trailer and asked to borrow
Morgan's truck, and left. His later version of events included his identifications of the gun
as a .410 double-barreled sawed-off shotgun and the shooter as Pruitt. He also told law
enforcement that Pruitt and Jake Perry had put a "bounty" on Little, which Little had
mentioned when they talked at Morgan's. Coe claimed "there had been $5,000 offered"
but Little had "laughed it off."

According to the interviewing detective, Coe said

"that he had contacted Mr. Pruitt by telephone and informed Mr. Pruitt that . . . Mr. Little
was at the trailer. [Coe] said that he was aware that Mr. Pruitt was . . . looking for Mr.
Little. And he had also said that Mr. Little had made comments throughout the evening
that he was wanting somebody to bring Mr. Pruitt to him.

....

"He'd explained . . . that the shooter . . . had popped up at the deck and had fired.
And . . . that he had r[u]n east."

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Coe also said he had not expected Pruitt to bring a gun with him to the trailer. Rather, he
thought Pruitt would give Little an "[a]ss-whooping, very minimal."

When the detective questioned Pruitt the same day, Pruitt acknowledged that he
and Little had ongoing issues, but he denied shooting Little.

The State charged both Pruitt and Coe in Little's murder. Coe was in custody for
104 days before the charges against him were dismissed with prejudice and he was
released.

Investigators were, at least initially, unable to find the gun used in the shooting.
After an anonymous Crime Stoppers tip, a sawed-off single-barrel shotgun that,
according to the retrieving officer, "looked like a .410" was found in the Walnut River.

When Pruitt's case went to trial, before voir dire began, the district judge outlined
for potential jury members how the matter would proceed. The judge's outline included:

"After each side completes its case, I must then instruct you on the law that
applies to a given case. Such law you must follow, and you must not substitute for it
opinions of your own as to what you think the law should be.

"As jurors, it is your duty to hear the evidence and to determine the facts from the
evidence. You are then obliged to apply the law as given to the facts as you find them to
be and, thus, to arrive at your verdict."

After voir dire and the parties' opening statements, the district judge provided the
jury with preliminary instructions, including:

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 "Now that you have been chosen as jurors for this trial, you're required to decide
the case only on the evidence admitted.

"At the end of the case, I will instruct you on the law that you must apply to the
evidence in order to reach a verdict."

In addition to the events described above, trial testimony included Myers'
description of Coe's possession of a handgun on the night of the shooting and Kreusel's
account of a conversation between Little and Coe, in which Coe said he "would be able to
get a lot of money" if he were to "pop [Little] in the head." Little's reaction to this
statement, according to Kreusel, was "laid back, drunk, sittin' on the floor."

During cross-examination, Kreusel testified that he received a phone call the day
after Little's murder from Coe's wife, in which she said Coe had been "offered money if
he were to take [Little] out." Kreusel said his impression was that Coe's wife "had a
feeling that he might do it, but . . . she wasn't sure."

During Morgan's testimony at Pruitt's trial, in addition to confirming the facts
recited above, Morgan said he knew that Little had been having "a little bit of trouble
with [Pruitt]," although he had no details and did not know Pruitt personally. He had not
heard Coe make the "pop" statement to Little, but Kreusel told Morgan about it the next
morning.

When Coe testified at Pruitt's trial, he admitted he had a gun in the car he was
driving on the night of the murder. He described learning that Pruitt had problems with
Little the first time he met Pruitt, about six weeks earlier. The problems had to do with
Little's behavior toward a woman and Little spray-painting "meth-head" or "meth dealer"
or something similar on Pruitt's house. Coe denied that Pruitt had ever suggested
someone could make money by hurting or killing Little.
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 The night of the shooting, Coe testified, he called Pruitt within 30 minutes of
arriving at the trailer "to let him know the person he had issues with was around." He
denied having told Little that "it would be worth a lot of money if [he] popped him right
now." When Coe and Little stepped onto the porch of the trailer shortly before midnight,
Coe heard a "very, very loud" gunshot immediately. Coe said that he did not realize right
away that Little had been hit but that he heard a "ruckus" to his right, turned, and could
see Pruitt had been the shooter.

When Coe was asked if Pruitt had ever shown him a gun before the night of the
murder, Coe said Pruitt had shown him a "sawed-off double barrel .410 shotgun"
purchased from Billy Hise. Coe described the shooter's gun as "identical" to this .410
sawed-off shotgun.

Coe also testified at trial that he had intended to borrow Morgan's truck earlier in
the evening and that he did so after the shooting. He said he had not had a chance to ask
earlier and was worried that the police who responded to the trailer would discover he
had a "warrant . . . for my arrest from a previous incident with my wife."

Several more witnesses testified about the recovered gun and linked Pruitt to it.

Cassandra Maynard described statements made by her ex-boyfriend, Ralph
Ballinger. He had told her

"[t]hat he was working with [Hise] and his younger son changing a tire the night of that
and that, uh, a guy named Pops came and asked Ralph if he could drive him to a party so
they could scare a gentleman, because . . . he was abusing a woman, supposedly, is what
he said. And so he drove him over there and parked a couple blocks away. Um, Pops

8
 went up to the house, came back, told him: 'We need to get out of here.' And Ralph
drove off and . . . went back to [Hise's] house, got out, and Pops drove off."

Maynard had never met the person that Ballinger described to her as "Pops."

Ballinger recounted a similar, although not identical, story when he took the stand.
The night of the shooting, he was with Hise at the home they shared. Pruitt arrived and
asked Ballinger if he wanted to run with him to get gas. Ballinger agreed. "Then [Pruitt]
also talked about gettin' to go talk to somebody." Ballinger came with him, "just in case
there was—somethin' happened, because he—he wanted to talk to a guy about somethin',
and he was, like out-numbered." While they were getting gas, Pruitt's phone rang. "He
got a phone call from a guy named Nate. . . . And he said: 'Well, he's home by himself. I
wanna go out and talk to him.'" Ballinger denied knowing the identity of the person Pruitt
wanted to confront.

Ballinger testified that when he and Pruitt neared Morgan's trailer, Pruitt "got out
of the truck and pulled out a gun." Ballinger described the gun as "a little sawed-off .410
open . . . break over gun" that had "a rubber band with a little small shell on top—
underneath of it." Ballinger had heard that Pruitt got the gun from Hise. Ballinger said he
tried to prevent Pruitt from taking the gun with him to the planned confrontation.

"I asked him: 'What are you doin'?' He goes: 'I'm just gonna go scare him.' And I told
him: 'Ain't no—you don't need a gun to go scare him. You don't need to go threaten him.'
He goes: 'I'm just gonna go shoot him in the butt.' I said: 'You don't need to do that.
Please put the gun back. It ain't worth it. Please put the gun back.'" (Emphasis added.)

Pruitt nevertheless took the gun with him. About 10 minutes later, Ballinger heard a
gunshot. He then "took off" because he "didn't want no part of it."

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 The third witness who discussed Pruitt's connection to the gun was Perry, who had
been Pruitt's roommate and had known Little for several years. Perry testified about the
spray-painting incident for which he believed Little to be responsible. Perry also testified
that he had been told Little had pulled a gun on Pruitt. The night of the murder, according
to Perry, Coe had been at the house Perry and Pruitt shared early in the evening. The
prosecutor asked Perry if he had "ever heard Nathan Coe and . . . Howard Pruitt discuss
money . . . , say $5,000, to do a job?" And Perry said he had heard Pruitt and Coe say
something on the subject as they were leaving the house.

Later that night, Perry said, Pruitt woke him up and said, "'I shot him,'" referring to
Little. Pruitt told Perry where to find the gun, a "short shotgun." Perry found the gun
where Pruitt told him it would be and threw it over a bridge railing. When Perry viewed
photographs of the gun investigators eventually recovered from the Walnut River, he
identified the gun pictured as the same one he retrieved and disposed of at Pruitt's
direction.

Other testimony in the State's case established that a search of Pruitt's vehicle
turned up "a Federal Firearms .410 shotgun shell with a copper-colored projectile at the
top of it." In addition, a forensic pathologist testified about the two projectiles recovered
from Little's body. The pathologist identified the cause of Little's death as the projectile
that had gone through his aorta and trachea.

A Kansas Bureau of Investigation analyst involved in testing the recovered gun
told Pruitt's jury about it and other items given to the KBI by the police. Those items
included "an unknown polymer item," two live Federal .410 shotshells, and two fired shot
pellets. After clean-up, the analyst said, the recovered shotgun was functional. One of the
two live shotshells had been connected to the barrel of the gun; the other was found in
Pruitt's vehicle. Both shells were "consistent with Federal Personal Defense . . . 410 bore
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shotshells, and they [were] loaded with four pellets of . . . triple-aught buck." The two
fired pellets recovered during Little's autopsy were copper in color and made of copper-
plated lead. The "weight and all of the physical characteristics of the[] two pellets [were]
consistent with being triple-aught buck."

Kreusel, Coe's attorney, and Pruitt's doctor testified for the defense. Kreusel
described the surface conditions surrounding Morgan's trailer, stating that it would not be
safe to walk at a "fast pace" through there because of all the potholes. Coe's attorney
testified that he had a conversation with Coe about the consequences of the State
dropping the charges against him, including that he would no longer have a Fifth
Amendment privilege against self-incrimination. Pruitt's cardiologist testified that Pruitt
had "symptoms consistent with blockages in the arteries in his legs," which could have
affected his ability to walk or run.

At the conclusion of the trial evidence, the district judge instructed the jury on the
law of the case.

"MEMBERS OF THE JURY: It is my duty to instruct you in the law that applies
to this case, and it is your duty to consider and follow all of the instructions. You must
decide the case by applying these instructions to the facts as you find them.

"In your fact finding, you should consider and weigh everything admitted into
evidence. This includes testimony of witnesses, admissions or stipulations of the parties,
and any admitted exhibits. You must disregard any testimony or exhibit which I did not
admit into evidence."

The judge's final jury instruction informed the jury that it needed to select a
presiding juror and included a description of how to reach a verdict.

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 "When you retire to the jury room, you will first select one of your members as
Presiding Juror. The person selected will preside over your deliberations, will speak for
the jury in Court, and will sign the verdict upon which you agree.

"Your verdict must be founded entirely upon the evidence admitted and the law
as given in these instructions.

"Your agreement upon a verdict must be unanimous."

The judge instructed the jury on the charged crime of premeditated first-degree
murder and the lesser included crime of intentional second-degree murder. Neither party
objected to the language of any instruction or to the giving or omission of any instruction.

During closing argument, the prosecutor discussed the evidence supporting the
State's claim that the gun found in the river was the same gun used in Little's murder.

"So identifying this gun, this mystery gun, and the descriptions thereof. Multiple
witnesses generally got it right; multiple witnesses generally got it wrong. Green and
black camo, or is it brown? Is it single or double barrel? Is—that lever on top, is that a
hammer, or is that a release? Well, what we have consistently is everybody said it was
kind of a small shotgun, hand-held. Those that identified the width of that barrel called it
a .410. 'Or it sounded like a .410' was another comment. And, of course, we have
ammunition that seems to back up that there's at least some consistency throughout.

"This seems to be the shotgun, folks. I don't think there's a lot of question about
that at this point. That .410 was found in the car—the .410 round was found in the car of
Howard Pruitt; the gun found in the Walnut River. We've heard the testimony. (Long
pause.)

"Uh, it's—it's important to note the KBI tested that firearm; that the firearm was
operable. He got it to operate. And by the testimony you heard, that was after it was
underwater for six months.
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 "The rubber band was described a couple of different ways. I think it was Nathan
Coe that said it was a leather, uh—but it's a wide rubber band, uh, that was holding a .410
shotgun shell to the barrel. Again, all of that is for your review. So if identification of the
gun is an issue, uh, I think that's been resolved." (Emphases added.)

After a discussion of the elements of first-degree murder and second-degree
murder, the prosecutor mentioned the role Little should play in the jury's deliberations.

"Your options are to find the defendant guilty of first-degree murder; premeditated,
intentional murder of Phillip Little on or about August 2nd, 2016.

"Your next option is second-degree murder; that is to say, that he killed him
without premeditation. Now, as the attorney for the State, I'm suggesting to you that there
is ample evidence of premeditation, but that is your determination to make.

"The third option is not guilty.

"Folks, Phillip Little deserves your consideration, certainly. If you didn't approve
of his lifestyle; if you didn't approve of his spray-painting/graffiti work; if you didn't
approve of the folks that they hung out with, that's really not the determination to make.

"The question is: What did Howard Pruitt do that night? What evidence is there
to show that he took Phillip Little's life? What evidence is there to show that Phillip Little
[sic] intended to take Phillip Little's light—life and that he knew exactly what he was
doing that night when he went there?"

Finally, the prosecutor concluded his closing argument with directions for the
members of the jury, should they be convinced beyond a reasonable doubt of each of the
elements of first-degree murder.

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 "Folks, if you're convinced beyond a reasonable doubt that those three elements
exist, you must find the defendant guilty of murder in the first degree, as he has been
charged.

"With that, I thank you very much for your attention." (Emphasis added.)

The jury found Pruitt guilty of premeditated first-degree murder.

Before sentencing, Pruitt moved for a new trial, alleging one of the jurors had been
asleep during portions of the trial. At an evidentiary hearing held several months after the
trial concluded, Pruitt's daughter testified that she had seen a juror asleep: "[T]he lady
couldn't even keep her eyes open. . . . I mean she was nodding out for hours at a time."
She said that she had "let [defense counsel] know that [a juror was] fallin' asleep." When
she told counsel, i.e., the same lawyer introducing her testimony at the hearing on the
motion for new trial, he told her that he could not see the juror because of a lectern in the
way. Pruitt's daughter could not identify the juror, although she might have been able to
do so right after trial. At the motion hearing, she pointed to an area of the jury box and
stated, "in the front, maybe the second or third maybe." She also said: "I honestly—it's
almost like—I'm tryin' to think of who it was. I could—maybe that red short spiky-haired
girl. But I'm not gonna call somebody out that I don't know 100 percent who it was."

The State questioned Pruitt's daughter, and then the district judge asked her what
she did with the information that a juror was sleeping.

"Uh, the minute recess was in . . . session, I stated to [defense counsel] if I could talk to
him. He pulled me in that side room right there (indicating), and I proceeded to tell him
she was sleeping and I was wondering how nobody else can see it when I'm in the very
back and everybody here (indicating) is in the front. We have a sheriff standing up
(indicating). I don't know the legal stance, but, in my eyes, she should have been removed
from that second."
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 After hearing arguments from the parties, the district judge put his recollections of
trial on the record.

"[A]nd the Court brought to the attention of both, I think, Mr. Jensen and to, uh, the State,
Ms. Pierce and Mr. Devinney, that the, uh—myself, um, made observations in regards to
viewing of the jury throughout the course of the trial. And, actually, this was a trial that
Mrs. Cross, the courtroom bailiff, was in the courtroom the entire trial. It was—it was not
just certain parts of the trial she was present. And I made inquiry to her as to if she
observed any jurors nodding off, falling asleep, being groggy, and she did not. And I
made inquiry to counsel as to how, um, they would like that presented for the record. And
I believe that it was, uh, agreed to be appropriate that my statement on the record to the
effect that I just made would be appropriate and sufficient."

Both the State and defense counsel acknowledged that they had spoken to other
court personnel, and none indicated that a juror had been sleeping. Defense counsel also
put his observations and arguments on the record.

"I recall that, uh, I—I believe counsel—I think—I think we had an off-the record
discussion, literally right back here (indicating), about the potential problem and, uh, that
there was some indication that maybe all was not well. And I mentioned, I—I believe—
and I don't think it made the record necessarily, but I want it to now. But I was limited in
my ability to do anything about it because of my—literally, because of my location.
Because when seated at this desk, uh, there are (long pause) five seats, and they're all at
this (indicating) end that I can observe. Uh, and, of course, when I'm not seated, I'm
focused on a witness. And, of course, the same thing is true for counsel. So I think we
ought to look at this not just in terms of 'Was it seen,' because that doesn't equate to 'Did
it happen or not happen?'

15
 "Observations—uh, everybody in this courtroom has a job that would focus their
attention away from a juror—uh, the jury on a regular basis, and I'd ask the Court take
that into consideration."

At that point in the motion hearing, the district judge took an off-the-record recess
to sit in defense counsel's chair and view the jury box from that vantage point. In
addition, the judge and counsel met and talked with other court staff. When the hearing
resumed, the district judge described the substance of those conversations on the record.

"The Court has taken the opportunity to meet with counsel, uh, myself; uh, our
court reporter; and our courtroom bailiff and—for the purpose of confirming, uh, what
was . . . previously placed on the record. I believe it's correct to state that there would be
no change in the record in regards to [the bailiff's statement]. There's no change in the
statement as far as myself, as the judge of the trial, and observances.

"The court reporter . . . has made a statement, and I believe that placing the
statement on the record was agreeable to counsel, as opposed to placing, uh, her under
oath, as she is an officer of the Court."

The district judge read the court reporter's statement into the record:

"THE COURT: . . .

"'I saw a (lady) juror, (zookeeper), front row, nodding off at the beginning and
struggling to keep her eyes open. At the recess, I brought it to the Court's attention. The
Court advised he would watch said juror. I don't remember any more instances of
nodding off after that.'"

Based on this evidence and the other recorded observations, the district judge
rejected Pruitt's claim of juror misconduct.

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 "Subsequently, the Court (long pause) has found, pursuant to that case law . . .
that no contemporaneous objection was made as to an inattentive juror, a type of juror
misconduct.

"The Court, subsequently, does find that there does need to be definitive
evidence of jury misconduct. The Court has previously . . . stated that, as the judge, there
was no inattentiveness by the jurors that I ever detected during the course of the trial; . . .
never detected that someone appeared to be asleep or unconscious where due process
rights of Mr. Pruitt would have been denied.

"The Court does find that even in the event that there was a struggling or a
straining of an individual to remain attentive, that that is not the same as being in—
inattentive.

"And, subsequently, the Court finds that the due process rights of Mr. Pruitt have
not been denied by any type of juror misconduct . . . in this case . . . that being a juror
falling asleep.

". . . [T]he Court . . . does overrule and deny the motion for a new trial."

The district judge then sentenced Pruitt to a hard 25 life sentence.

DISCUSSION

Prosecutorial Error

Appellate review of a claim of prosecutorial error is a two-step process.

"First, the appellate court must decide whether the challenged prosecutorial act falls
outside the wide latitude afforded prosecutors to conduct the State's case and attempt to
obtain a conviction in a manner that does not offend the defendant's constitutional right to
a fair trial. Only if that error is found, the appellate court moves to the second step of
determining whether the error prejudiced the defendant's due process rights to a fair trial,
17
 utilizing the constitutional harmlessness inquiry from Chapman v. California, 386 U.S.
18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967). Prosecutorial error is harmless if the State
proves beyond a reasonable doubt that the error will not or did not affect the trial's
outcome in light of the entire record, i.e., when there is no reasonable possibility the error
contributed to the verdict." State v. Haygood, 308 Kan. 1387, Syl. ¶ 3, 430 P.3d 11
(2018).

During closing argument, "a prosecutor may comment on admitted evidence as
long as the remarks accurately reflect the evidence, accurately state the law, and are not
intended to inflame the jury's passions or prejudices or divert the jury from its duty to
decide the case based on the evidence and controlling law." State v. Anderson, 294 Kan.
450, 463, 276 P.3d 200 (2012).

Pruitt takes issue with three different statements made by the prosecutor in his
case. He asserts that "This seems to be the shotgun, folks. I don't think there's a lot of
question about that at this point" was an impermissible personal opinion; that "Folks,
Phillip Little deserves your consideration, certainly" was an impermissible appeal to the
sympathies of the jury; and that "Folks, if you're convinced beyond a reasonable doubt
that those three elements exist, you must find the defendant guilty of murder in the first
degree, as he has been charged" was an impermissible misstatement of the law because it
forbade jury nullification.

"This seems to be the shotgun, folks. I don't think there's a lot of question about
that at this point."

This challenged statement was uttered in the middle of the prosecutor's discussion
of consistencies and inconsistencies among witnesses' descriptions of the gun, as well as
the forensic evidence about the gun and projectiles. The prosecutor concluded this

18
discussion with "[a]gain, all of that is for your review. So if identification of the gun is an
issue, uh, I think that's been resolved."

As this court has recognized, "the prosecutor's personal views are irrelevant to the
task before the jury," State v. Charles, 304 Kan. 158, 173, 372 P.3d 1109 (2016),
abrogated on other grounds by State v. Huey, 306 Kan. 1005, 399 P.3d 211 (2017); and
they may constitute a form of unsworn testimony from a law-trained courtroom character
likely to be endowed with outsized influence. See State v. Akins, 298 Kan. 592, 605, 315
P.3d 868 (2014) (noting jury's tendency to "'overvalue what is effectively unsworn
testimony by a highly regarded prosecutor'"). But "[t]he context of a challenged statement
matters." State v. Anderson, 308 Kan. 1251, 1261, 427 P.3d 847 (2018).

In 2016's Charles opinion, this court put prosecutors on notice "that any
temptation to say 'I think' should be rebuffed and replaced with 'the evidence shows' or 'I
submit' or a similar, less potentially subjectively loaded phrase." 304 Kan. at 175. In
Charles, the prosecutor had prefaced many of his statements during closing with "I think"
or similar phrases. The court concluded that the prosecutor's statements did not fall
outside the wide latitude afforded prosecutors because it was "convinced that the 'I thinks'
littering the transcripts in this case [were] mere verbal tics." 304 Kan. at 175.

Two years later, in State v. King, 308 Kan. 16, 33, 417 P.3d 1073 (2018), this
court unequivocally concluded that the prosecutor's statements, "I think there's sufficient
evidence for you to find beyond a reasonable doubt that these two defendants . . .
committed the following crimes" and "I don't think that excludes him based on the
evidence from having committed these crimes" were "impermissible conveyances of the
prosecutor's opinion to the jury" rather than mere verbal tics. 308 Kan. at 33. Yet we
declined to declare the comments error, "because when the prosecutor made these

19
statements at King's trial, we had not yet placed prosecutors on notice that such
comments were improper." 308 Kan. at 33-34.

The prosecutor in this case does not get the benefit of the same shelter extended to
the prosecutor in King. Charles was decided on April 22, 2016, a year before this case
went to trial. Given this court's previous warning against the use of "I think" and the
amount of time between publication of Charles and the trial in this case, the prosecutor's
use of the phrase here qualified as error.

"Consideration" for Little

Pruitt's argument that the prosecutor's statement about "consideration" for Little
was error is wholly without merit. This is not a case when the prosecutor was making an
appeal to give the victim "justice." See Anderson, 294 Kan. at 463; see also State v.
Henry, 273 Kan. 608, 640-41, 44 P.3d 466 (2002) (improper to ask jury to consider
crime's impact on victim's family). Quite the opposite. Here, the prosecutor was merely
acknowledging that Little could be viewed unfavorably because of his past misbehavior
toward the defendant. Multiple witnesses had testified about the ongoing dispute between
Little and Pruitt, and its genesis seemed to lie at Little's feet. Rather than asking the jury
to consider the personal characteristics of the victim, the prosecutor asked the jury to
ignore those characteristics and focus on whether Pruitt was guilty of murdering Little.

Forbidding Jury Nullification

Pruitt's final challenge to the prosecutor's closing argument relies on the jury's
historical power of nullification. See State v. Smith-Parker, 301 Kan. 132, 340 P.3d 485
(2014). In Pruitt's view, the prosecutor erred by telling the jury it "must" convict if it was
convinced beyond a reasonable doubt that the State had proved the elements of first-
degree murder.
20
 We have acknowledged that "[j]uries possess the power to decide a case in a
manner which is contrary to the applicable facts and law, i.e., the power of jury
nullification." State v. Naputi, 293 Kan. 55, Syl. ¶ 4, 260 P.3d 86 (2011); see also State v.
McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973) (although jury has "raw
physical power" to disregard rules of law and evidence, proper "function and duty" of
jury to accept rules of law given in instructions by court). But we have consistently
rejected defendants' arguments that a jury should be affirmatively or explicitly instructed
on its power of nullification. See Smith-Parker, 301 Kan. at 164. And our most recent
pronouncement on this subject in State v. Boothby, 310 Kan. 619, 630, 448 P.3d 416, 424
(2019), made clear that the jury only has this power, not a right.

In Smith-Parker, we held that an instruction from a trial judge that a jury "must" or
"will" enter a guilty verdict flies "too close to the sun of directing a verdict for the State."
301 Kan. at 164. A "judge cannot compel a jury to convict, even if it finds all elements
proved beyond a reasonable doubt." 301 Kan. at 164.

But an instruction from the court is fundamentally different from a prosecutor's
closing argument, and Smith-Parker does not dictate an outcome in favor of Pruitt on this
issue. Here, the prosecutor merely used the word "must" to summarize and emphasize the
ways in which the State's evidence proved the elements of the charged crime. This
statement by the prosecutor was not error.

Reversibility

Because we have held that the prosecutor's use of "I think" was error, we must
move to the second step of analysis and determine whether the error was harmless under
Chapman. As noted above, "[p]rosecutorial error is harmless if the State proves beyond a

21
reasonable doubt that the error will not or did not affect the trial's outcome in light of the
entire record, i.e., when there is no reasonable possibility the error contributed to the
verdict." Haygood, 308 Kan. 1387, Syl. ¶ 3.

The prosecutor's "I think" statements in this case were embedded in the
prosecutor's recitation of trial evidence about the gun. They would not have added
meaningfully to the appropriate advocacy in the moment—the prosecutor's dispassionate
demonstration that any discrepancies in witnesses' descriptions of the gun were minor in
contrast to the points on which they agreed that were consistent with the physical
evidence. Moreover, although evidence about the gun was an important piece of the
State's case, there was abundant other evidence supporting Pruitt's conviction, including
his identification by one eyewitness and his confessions to others. The prosecutor's brief
indiscretions do not merit reversal.

INSTRUCTIONS ON LESSER INCLUDED OFFENSES

This court applies a four-step analysis to challenges to jury instructions.

"(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, 565, 256 P.3d 801 (2011),
cert denied 565 U.S. 1221 (2012)]." State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202
(2012).

22
 Pruitt acknowledges in his brief that he did not object to the trial judge's omission
of instructions on lesser included crimes of reckless second-degree murder and reckless
involuntary manslaughter. Thus, unless Pruitt can show clear error, he is not entitled to
reversal on this appeal. See State v. Garcia-Garcia, 309 Kan. 801, 819-20, 441 P.3d 52
(2019).

The State and Pruitt agree that reckless second-degree murder and reckless
involuntary manslaughter instructions were legally appropriate. See Plummer, 295 Kan.
at 161 (lesser included crime); K.S.A. 2018 Supp. 21-5109(b)(1) (lesser degree of same
crime).

The State and Pruitt disagree on whether the instructions were factually
appropriate.

"K.S.A. 2018 Supp. 22-3414 provides that, '[i]n cases where there is some
evidence which would reasonably justify a conviction of some lesser included crime as
provided in subsection (b) of K.S.A. 2018 Supp. 21-5109, and amendments thereto, the
judge shall instruct the jury as to the crime charged and any such lesser included crime.'
We recently reiterated that '"lesser included offense instructions must be given when
there is some evidence, [viewed in a light most favorable to the defendant,] emanating
from whatever source and proffered by whichever party, that would reasonably justify a
conviction of some lesser included crime."' State v. Haygood, 308 Kan. 1387, 1408, 430
P.3d 11 (2018) (quoting State v. Seba, 305 Kan. 185, 204, 380 P.3d 209 [2016]).
However, a defendant's unsupported and self-serving statement of intent may not offer
enough factual support for an instruction, depending '"on the extent to which the other
evidence repudiates the statement."' Haygood, 308 Kan. at 1409 (quoting Seba, 305 Kan.
at 204)." State v. Gentry, 310 Kan. 715, 722, 449 P.3d 429 (2019).

Pruitt advances two arguments to support factual appropriateness. The first is
evidence-based and the second is statute-based.
23
 The evidence-based argument points to Ballinger's testimony that Pruitt only
wanted to scare Little and said he intended only to "shoot him in the butt" and asserts it
could support a jury verdict that the homicide was reckless. See State v. James, 309 Kan.
1280, 1299, 443 P.3d 1063 (2019) (quoting K.S.A. 2018 Supp. 21-5202[j])
(differentiating between degrees of recklessness needed for two crimes; person acts
"recklessly," is "reckless" when person consciously disregards substantial, unjustifiable
risk "that circumstances exist or that a result will follow, and such disregard constitutes a
gross deviation from the standard of care which a reasonable person would exercise in the
situation"); see also State v. Gonzalez, 307 Kan. 575, 581, 412 P.3d 968 (2018) (outlining
requirements of unintentional second-degree murder, reckless involuntary manslaughter).
Recklessness is not limited to "blind conduct." See James, 309 Kan. at 1299 (quoting
State v. Deal, 293 Kan. 872, 884, 169 P.3d 1282 [2012]) (even intentional blow can result
in unintentional but reckless killing; "'[I]t is not the intent to inflict a blow but the intent
to kill that is the focal point' of the distinction between intentional second-degree murder
and unintentional but reckless second-degree murder."); see also Gentry, 310 Kan. at 727
(evidence reasonably supported theory shooter fired toward truck without intent to kill
whoever might be inside).

Pruitt's statutory argument relies on K.S.A. 2018 Supp. 21-5202(c), which reads:

"Proof of a higher degree of culpability than that charged constitutes proof of the
culpability charged. If recklessness suffices to establish an element, that element also is
established if a person acts knowingly or intentionally. If acting knowingly suffices to
establish an element, that element also is established if a person acts intentionally."

Pruitt interprets this language to have required the lesser included instructions he
argues for here. In his view, under this subsection of the culpable mental state statute,

24
because the State takes the position that the evidence was factually sufficient to support
premeditation and intentional conduct, the same evidence had to be factually sufficient to
support reckless conduct.

We need not revisit the propriety of previous decisions of a majority of this court
that a specific instruction was factually appropriate when there was some evidence to
support it. See Plummer, 295 Kan. at 162 (standard "'closely akin'" to sufficiency of
evidence standard). But see State v. Williams, 308 Kan. 1439, 1463, 430 P.3d 448 (2018)
(Rosen, J., concurring) (questioning propriety of applying sufficiency test to lesser
included crime instructions, emphasizing some evidence must be enough to "'reasonably
justify'" conviction of lesser offense). Nor do we need to parse the language of the statute
in this case. Even if we assume district court error in failing to give the two reckless
homicide instructions, the error cannot possibly qualify as clear and thus reversible.

Laying aside for the moment the two brief segments of Ballinger's testimony that
Pruitt uses to support factual appropriateness, the rest of the evidence in this case is
overwhelming that whoever shot Little to death did so by firing a shotgun loaded with
triple-aught buck from close range after lying in wait outside Morgan's trailer home for
about 10 minutes. This makes this case very nearly a law school paradigm for
premeditated murder by someone, and we have already referenced the strong evidence
that the someone was the defendant. No instruction on reckless second-degree murder or
reckless involuntary manslaughter would have affected the outcome here.

INSTRUCTION REGARDING JURY NULLIFICATION

Pruitt's next challenge on this appeal concerns statements made by the trial judge
in instructions before voir dire, introductory instructions before the State opened its case

25
in chief, and at the conclusion of trial. These statements, Pruitt asserts, "undercut the
jury's inherent right to nullification."

We apply the same four-step analysis to this jury instruction challenge that we set
forth above.

To recap Pruitt's bothers on this nullification point, the district judge told
prospective jurors before voir dire that he would instruct the eventual jury on the law of
the case and "[s]uch law you must follow, and you must not substitute for it opinions of
your own as to what you think the law should be." In introductory instructions after the
jury was seated, the judge said, "At the end of the case, I will instruct you on the law that
you must apply to the evidence in order to reach a verdict." In final jury instructions
given at the close of the evidence, the judge gave PIK Crim. 4th 50.040 (2012), which
said, "It is my duty to instruct you in the law that applies to this case, and it is your duty
to consider and follow all of the instructions. You must decide the case by applying these
instructions to the facts as you find them."

Boothby held that a jury instruction saying, "'Your verdict must be founded
entirely upon the evidence admitted and the law as given in these instructions,' is legally
correct and does not prevent a jury from exercising its power of nullification." 310 Kan.
619, Syl. ¶ 3. The same instruction was given in this case, and it is not among those
challenged by Pruitt. On the instructions he does challenge, Pruitt relies on arguments
similar to those advanced by the defense in Boothby. He asserts that the three instructions
in issue essentially directed a verdict to convict.

As alluded to in connection with Pruitt's related prosecutorial error issue above,
we stressed in Boothby that there is no "right" to jury nullification. Boothby, 310 Kan. at
630. And the jury's power to nullify need not be emphasized or even spelled out
26
explicitly. See Smith-Parker, 301 Kan. at 164. The danger to be avoided in jury
instructions is directing a verdict, a danger the Smith-Parker trial judge's reasonable
doubt instruction telling the jury it "will enter a verdict of guilty" did not do enough to
avoid. (Emphasis added.) See 301 Kan. at 164. The same concern was not present in
Boothby, see 310 Kan. at 630-31, and it is not present here. The three instructions Pruitt
challenges generally informed the jury how it would proceed in resolving the issues in the
case; they reinforce the jury members' oaths; they did not tell the jury that it "must" or
"will" enter any particular verdict.

Pruitt's challenge to these jury instructions is without merit.

MOTION FOR NEW TRIAL

Pruitt also challenges the district judge's denial of his motion for new trial based
on his daughter's testimony that she saw a juror "nodding out for hours at a time."

We generally review a denial of a motion for new trial for an abuse of discretion.
State v. Phillips, 309 Kan. 475, 477, 437 P.3d 961 (2019). For issues of juror misconduct,
however, an appellate court applies a bifurcated review.

"When considering whether a new trial is warranted based on juror misconduct,
the trial court first considers whether there was a fundamental failure in the proceeding. If
a fundamental failure did occur, the trial court moves to the second step and considers
whether the party benefitting from the failure has shown the trial can continue without an
injustice, meaning the party has shown beyond a reasonable doubt that the failure did not
affect the outcome of the trial. An appellate court reviews the trial court's decision in two
parts. It reviews the conclusion on whether a fundamental failure occurred for an abuse of
discretion. As for the second question—whether any failure resulted in injustice—an
appellate court does not review the district court's decision for abuse of discretion but

27
 considers the entire record and performs its own constitutional harmless error review."
State v. Jenkins, 308 Kan. 545, Syl. ¶ 3, 422 P.3d 72 (2018).

A district judge may abuse his or her discretion if a decision is based on an error of law;
based on an error of fact; or is otherwise arbitrary, fanciful, or unreasonable. State v.
Gonzalez-Sandoval, 309 Kan. 113, 126-27, 431 P.3d 850 (2018).

This court has addressed the issue of sleeping or inattentive jurors on multiple
occasions and has "routinely held that the purported sleeping of a juror did not warrant a
new trial." State v. Armstrong, 299 Kan. 405, 442, 324 P.3d 1052 (2014) (listing cases).

In Armstrong, defense counsel asked to approach the bench during the State's
examination of a witness and informed the judge that he believed one of the jurors was
falling asleep. The judge thanked counsel and asked the jury to take a break to stretch.
After a second instance of alleged juror misconduct, defense counsel asked for a mistrial.
The district judge denied the motion, noting that the issue of the "drowsy juror" had been
addressed in a timely manner and "that the juror had been struggling but did not actually
nod off." 299 Kan. at 440-41.

This court upheld the denial: "[T]here [was] no basis to conclude the trial court
erred in finding there was not a fundamental failure in the proceeding because of juror
inattentiveness." 299 Kan. at 442. In other instances, the court has acknowledged, "if
sufficiently severe," juror inattentiveness could serve as the basis for a mistrial. 299 Kan.
at 442; see also 59 A.L.R.5th 1, §2[a] ("Certainly, a juror who has not heard all the
evidence in a case or the court's instructions as to applicable principles of law is grossly
unqualified to render a verdict.").

28
 The Armstrong court compared the facts before it to those in State v. Kirby, 272
Kan. 1170, 1196-98, 39 P.3d 1 (2002),

"where the inattentiveness of two jurors was brought to the attention of the trial court. In
addressing the issue, the judge stated, '"[I]t did appear that [the juror] may have nodded
off for a moment, and I think we took that appropriate action."' This court held that the
trial court did not abuse its discretion in denying the defendant's motion for a new trial
because there was no statement by the juror that he did not hear testimony, the trial court
kept a close eye on the juror and took a recess when it appeared that the juror was dozing
off, and the length of time the juror dozed was momentary and isolated. 272 Kan. at
1197-98.

"Similarly, in this case, although defense counsel stated he 'thought' he saw a
juror falling asleep, the judge stated, 'I think she was struggling a bit, but I don't know
that I ever saw her really nod off.' Also, there was no evidence the juror did not hear
testimony. Further, the trial court took immediate action, and there is nothing in the
record to indicate any other incidents during the long trial. Finally, if the juror missed any
testimony at all, it was testimony regarding the general procedures used by the fire and
tool mark expert and was not specific to the evidence in this case. The trial court took
steps to assure the juror was attentive before the expert began to testify about his testing
or conclusions regarding the evidence gathered at the scene of [the] shooting."
Armstrong, 299 Kan. at 443.

The district judge in this case found no misconduct and thus no fundamental
failure of the proceedings necessitating a new trial. We cannot hold that this constituted
an abuse of discretion. The judge was able to observe Pruitt's daughter as she testified
and evidently made a negative credibility judgment; this is not particularly surprising,
given her inability to identify the juror and the potential for bias in favor of her father.
The judge also made a careful record of other, unrelated players' recollections, including
his court reporter's memory of a single incident early in the trial when she told him about
a jury member struggling to stay awake. The court reporter also recalled that she had
29
alerted the judge to the issue and been told that he would watch that juror. At the hearing
on the motion for new trial, the judge noted that he had not personally witnessed or
detected any "inattentiveness" among the jurors and "never detected that someone
appeared to be asleep or unconscious."

On this record, we hold that the district judge did not abuse his discretion in
determining that there was no juror misconduct constituting a fundamental failure of the
proceedings.

CUMULATIVE ERROR

Cumulative trial errors may require reversal if, under the totality of the
circumstances, the errors substantially prejudiced the defendant and resulted in an unfair
trial. If there is no error or only a single error, cumulative error cannot supply a basis for
reversal. See State v. Love, 305 Kan. 716, 737, 387 P.3d 820 (2017).

This opinion has identified one instance of prosecutorial error; it has assumed
error in the failure to instruct sua sponte on reckless second-degree murder and reckless
involuntary manslaughter. The prosecutor's improper expression of personal opinion that
he thought the identity of the gun had been resolved was a discrete error that in no way
compounded the instructional errors. See James, 309 Kan. at 1311. In light of the strength
of the evidence produced by the State, the errors did not cumulatively prejudice Pruitt,
and they did not deprive him of a fair trial.

CONCLUSION

For all the reasons discussed above, we affirm the judgment of the district court.

30
 JEFFREY E. GOERING, District Judge, assigned.1

1
REPORTER'S NOTE: District Judge Goering was appointed to hear case No. 118,448
under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas
Constitution to fill the vacancy on the court created by the retirement of Justice Johnson.
31