IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 118,235
STATE OF KANSAS,
Appellee,
v.
ANTHONY RAYMOND BECKER,
Appellant.
SYLLABUS BY THE COURT
1.
In determining whether a particular statement falls outside of the wide latitude
given to prosecutors, the court considers the context in which the statement was made,
rather than analyzing the statement in isolation.
2.
Even if a requested lesser included offense instruction would have been both
factually and legally appropriate, a district court's failure to give such instruction may
still be harmless if the court is convinced there was no reasonable probability that the
failure affected the verdict.
3.
Under the facts of the case, a district court's failure to give a requested lesser
included offense instruction of second-degree homicide was harmless when no evidence
was presented to enable the jury to conclude that the homicide was anything other than
premeditated.
1
4.
In a noncapital case, a district court's failure to instruct on a lesser included
offense does not impair a defendant's constitutional right to a trial by jury or right to due
process.
5.
Evidence of consumption of an intoxicant near the time of the commission of a
crime does not automatically warrant the giving of a voluntary intoxication instruction.
6.
When no direct evidence of a defendant's impairment was presented to the jury in
a premeditated first-degree homicide trial, a district court does not necessarily err in
failing to give a voluntary intoxication instruction even when evidence of consumption of
an intoxicant is presented.
7.
Relief under the cumulative error doctrine cannot be predicated upon a single
error.
8.
A sentencing court has no authority to order a term of postrelease supervision in
conjunction with an off-grid, indeterminate life sentence.
Appeal from Ford District Court; SIDNEY R. THOMAS, judge. Opinion filed February 28, 2020.
Judgment of the district court is affirmed in part and vacated in part.
Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause, and Peter Maharry, of
the same office, was on the briefs for appellant.
2
Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with her on the brief for the appellee.
The opinion of the court was delivered by
MCANANY, J.: A jury found Anthony Raymond Becker guilty of first-degree
premeditated murder. On direct appeal, Becker asserts a claim of prosecutorial error,
three claimed errors related to jury instructions, and an illegal sentence of lifetime
postrelease supervision.
Upon review, we conclude that (1) the prosecutor did not err in his comments in
closing argument; (2) the district court did not commit reversible error in failing to
instruct on lesser included crimes and on voluntary intoxication; (3) Becker's newly
raised constitutional claims are without merit; and (4) there are not cumulative errors that
require reversal; but (5) the district court erred in ordering lifetime postrelease
supervision following Becker's indeterminate life sentence.
Accordingly, we affirm Becker's conviction of first-degree murder, but vacate the
portion of his sentence ordering lifetime postrelease supervision.
FACTUAL AND PROCEDURAL BACKGROUND
Anthony Becker, Chelsea Sosa, and Chris Boyd spent an afternoon in April 2015
smoking methamphetamine and driving around Dodge City. When they had consumed
most of their meth they discussed ways of getting more. Boyd and Sosa were dating at
the time. Boyd suggested that Sosa could engage in prostitution as a means of obtaining
money to buy more methamphetamine. Sosa was hurt and angered by the idea.
3
Becker was Sosa's ex-boyfriend, having dated her before Boyd did. Becker knew
of the proposal that Sosa engage in prostitution, and he viewed Boyd as having a
corrupting influence over Sosa. As a result, Becker planned to do away with Boyd. In
order to set up the crime, Becker told Boyd they could find money in his parents' shed,
but he would need Boyd's help moving something in order to get to the money. Once they
arrived at Becker's parents' house in rural Ford County in the predawn hours of the
following morning, Becker and Boyd headed for the shed, with Boyd in the lead. As
Becker left the house behind Boyd, he grabbed a loaded pistol from a buffet in the house.
When they got to the back of the shed, Becker fired 10 shots at Boyd, striking him 6
times. After Boyd fell to the ground, Becker stomped on Boyd's head to make sure he
was dead. Becker walked back to the house, where he told Sosa that he had just killed
Boyd. James Schmidt later helped Becker dispose of Boyd's body.
Police found Boyd's body under the Bucklin Bridge in Ford County and later
arrested Becker, Sosa, and Schmidt. Becker was interviewed by police officers and he
confessed to shooting Boyd. Becker was charged with first-degree premeditated murder
and conspiracy to commit first-degree murder. Sosa and Schmidt entered into plea
agreements with the State and received probation.
Before trial Becker unsuccessfully challenged the voluntariness of his confession.
He does not now challenge that adverse ruling on appeal.
The video recording of Becker's confession was played for the jury during trial
and again during deliberations, at the jury's request. In the video Becker recounted the
events leading up to Boyd's death and stated: "I shot him." He said he told Boyd there
was money hidden in the shed, a lie calculated to lure Boyd to his death. Becker
explained he was motivated by the corrupting influence Boyd had over Sosa. Becker said
4
that Schmidt helped him dispose of Boyd's body. The police provided Becker with pen
and paper and suggested that he write an apology letter to Boyd's family. Becker did so.
He wrote:
"I am undiscribibly [sic] sorry for what I did to Chris, but I did It to save Chelsea's life.
Chelsea means everything to me and what Chris was doing was destroying her. I wish
there could have been another way but I did what I needed to do to protect the woman
that is my world. There is nothing that can be done to fix It and apology doesn't even
come close. But I am sorry."
At the close of all the evidence Becker requested jury instructions on the lesser
included crimes of second-degree murder and voluntary manslaughter. Becker also
requested an instruction on voluntary intoxication. The court declined to give any of these
requested instructions. The court's jury instructions included the directive: "In your fact-
finding, you should consider and weigh everything admitted into evidence."
In Becker's closing argument, his counsel attacked Sosa's credibility. He conceded
the accuracy of some of her testimony, namely that Boyd wanted Sosa to prostitute
herself in order to get money with which they could buy more drugs. But Becker's
counsel argued from this that Sosa—rather than Becker—had a motive to kill Boyd.
"We have [Sosa] testifying that she was mad at Boyd because he wanted to pimp her out
for methamphetamine. That gives her a motive, ladies and gentlemen. In fact, it was the
night that happened where he suggested: Let's sell you for sex so I can have drugs.
Shortly thereafter Boyd ended up dead."
Counsel also argued that Sosa had written a letter of apology to Boyd's family,
further evidencing her guilt as the one who pulled the trigger. Sosa's letter had been
admitted into evidence. She wrote:
5
"I am sorry truely [sic] sorry I lied to you and didn't call the cops after this happened. I
didn't know what to do or say[.] I've never gone through anything in my life like this[.] I
hope you can understand I feared the whole situation. I really did care about Chris and
I[']m sorry and completely understand if you despise and hate me."
Moreover, Becker's counsel argued: "Sosa took the stand yesterday in front of you, said,
yep, I was charged with first degree murder as well. I made a plea deal for probation."
In the State's rebuttal argument, the prosecutor made reference to the plea
agreements the State entered into with Sosa and Schmidt.
"[Becker] told you that James Schmidt was only there to help dispose of the
body. And, he also told you that James Schmidt was not there at the time of the murder.
He didn't say that specifically in that language, but based on what he told you, Schmidt
showed up to help move the body later. Nobody has put James Schmidt at Becker's house
when this shooting occurred.
"Now, let's talk about Chelsea Sosa for a minute, and James Schmidt. Both of
them were convicted for what they actually did in this case. Both of them got convicted
of obstructing apprehension or prosecution. You heard a little bit about what they did to
qualify for that.
"Also, James Schmidt was convicted of conspiracy to commit aggravated battery.
He said he wanted to severely beat Chris up. But, he didn't do it. That was never done. He
did have a stick, but he never completed the aggravated battery. Also, this did not even
involve a gun.
"You can think back on the evidence and see if you think there was any evidence
to support that [Sosa] or [Schmidt] had any part in murdering Chris.
"And, even if you don't believe Chelsea Sosa, you have the Defendant's statement
that contains all the evidence you need to convict him of murder in the first degree.
6
"This case really boils down to a number of things. Defendant said he shot and
killed Chris Boyd. How much or how little meth [Chelsea] Sosa used, doesn't matter.
Anything Chris Boyd wanted Chelsea Sosa to do doesn't matter. It does not matter what
happened to James Schmidt or Chelsea Sosa as far as their charges in this case.
"During voir dire, do you remember I asked you if you'd be able to consider this
case without considering what happened or what was going to happen to Sosa and
Schmidt? Now you need to remember that.
"What happened to them, what they pled to or didn't plead to, that is not part of
this case.
"It doesn't matter how many people Sosa was having sex with. That's not here.
That's not a matter.
"Also, the Defendant wrote an apology letter. Do you apologize if you didn't do
something?
"It also doesn't matter if Sosa had positive U.A.'s for meth in the last few days.
"The bottom line in this case is that the Defendant, in his recorded interview, told
you how he intentionally killed Chris Boyd. He told you how he did it with meditation—
premeditation. You heard the Defendant say I shot him when he was asked about what
happened to Chris."
The jury found Becker guilty of first-degree premeditated murder. At sentencing,
the district court granted a downward departure from a sentence of lifetime imprisonment
with no chance of parole for 50 years (hard 50), to lifetime imprisonment with no chance
of parole for 25 years (hard 25). The sentencing court also imposed lifetime postrelease
supervision.
7
Becker's appeal brings the matter before us. This court has jurisdiction over
Becker's direct appeal under K.S.A. 2018 Supp. 22-3601(b)(3), (4) (life imprisonment,
off-grid crime).
ANALYSIS
The prosecutor's statements in closing argument do not constitute prosecutorial error.
Becker contends the prosecutor's statements regarding what happened to Sosa and
Schmidt and "what they pled to or didn't plead to" require reversal and a remand for a
new trial.
Standard of Review
We follow the analytic protocol stated in State v. Sherman, 305 Kan. 88, 378 P.3d
1060 (2016), in evaluating claims of prosecutorial error:
"Appellate courts will continue to employ a two-step process to evaluate claims
of prosecutorial error. These two steps can and should be simply described as error and
prejudice. To determine whether prosecutorial error has occurred, the appellate court
must decide whether the prosecutorial acts complained of fall 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. If error is
found, the appellate court must next determine whether the error prejudiced the
defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the
traditional constitutional harmlessness inquiry demanded by Chapman [v. California, 386
U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is
harmless if the State can demonstrate '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., where there is no reasonable possibility that the error contributed to the
verdict.' State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801, (2011), cert. denied 565
U.S. 1221 (2012). We continue to acknowledge that the statutory harmlessness test also
8
applies to prosecutorial error, but when 'analyzing both constitutional and
nonconstitutional error, an appellate court need only address the higher standard of
constitutional error.' [Citation omitted.]" 305 Kan. at 109.
Discussion
Becker claims the prosecutor's statements regarding Sosa and Schmidt during
closing argument were prosecutorial error. He contends their plea agreements were
crucial to the jury's weighing the credibility of Sosa and Schmidt. And so, by stating
"what they pled to or didn't plead to" was not part of the case, the prosecutor misstated
the law and told the jury not to consider the plea agreements in weighing Sosa's and
Schmidt's credibility. Likewise, he argues that when the prosecutor stated, "It does not
matter what happened to James Schmidt or Chelsea Sosa as far as their charges in this
case," the prosecutor made similar misstatements of law.
The first step in analyzing prosecutorial error is for us to decide whether the
prosecutor's comments were outside the wide latitude allowed in discussing the evidence.
305 Kan. at 104 ("The well-developed body of caselaw defining the scope of a
prosecutor's 'wide latitude' is likewise sound and will continue to inform our review of
future allegations of prosecutorial error."). Obviously, misstating the law is not within the
wide latitude given to prosecutors in closing arguments. State v. Pribble, 304 Kan. 824,
833, 375 P.3d 966 (2016). Inquiry into whether the witness was offered any arrangement
or deal by the State in exchange for her testimony is crucial. State v. Davis, 237 Kan. 155,
158, 697 P.2d 1321 (1985). Thus, if the prosecutor instructed jurors to not consider plea
agreements when weighing witness credibility, then the prosecutor committed error.
In determining whether a particular statement falls outside of the wide latitude
given to prosecutors, the court considers the context in which the statement was made,
rather than analyzing the statement in isolation. State v. Ross, 310 Kan. 216, 221, 445
P.3d 726 (2019).
9
Taken in context, the prosecutor's argument in rebuttal, though inartfully
expressed, did not direct the jury to ignore the plea agreements or to give them no weight
in determining witness credibility. After all, the court had just instructed the jurors that
they were to "consider and weigh everything admitted into evidence." Instead, it is
apparent that the prosecutor was rebutting the attacks against Sosa—and, by inference,
also against Schmidt—made by Becker's counsel in his closing argument regarding
Sosa's favorable plea agreement. In essence, the prosecutor's rebuttal argued that Becker's
videotaped confession to the crime and his letter of apology rendered the plea deals
received by Sosa and Schmidt effectively immaterial. In other words, if the jury chose to
totally disregard the testimony of Sosa and Schmidt, the State still had proven Becker's
guilt beyond a reasonable doubt through his own recorded words—the voluntariness of
which, we note, has not been challenged on appeal. The prosecutor's argument did not
fall outside the wide latitude afforded prosecutors to conduct the State's case and was not
an attempt to obtain a conviction in a manner that offended Becker's right to a fair trial.
Based upon this conclusion, we need not address the State's argument regarding
where the burden of proof should be placed when deciding whether Becker was
prejudiced by the State's argument.
The district court did not commit reversible error under K.S.A. 2018 Supp. 22-3414 by
failing to instruct the jury on the lesser included offenses of second-degree murder and
voluntary manslaughter.
Standard of Review
Kansas appellate courts follow a three-step protocol for reviewing challenges to
jury instructions: (1) we determine whether we can or should review the issue; that is,
whether there is a lack of appellate jurisdiction or a failure to preserve the issue for
appeal; (2) we consider the merits of the claim to determine whether error occurred
10
below; and (3) we assess whether the error requires reversal or whether the error was
merely harmless. State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018) (quoting State v.
Williams, 295 Kan. 506, 510, 286 P.3d 195 [2012]).
Even when an offense includes a lesser crime and is, therefore, legally appropriate,
failure to instruct on the lesser included crime is erroneous only if the instruction also
would have been factually appropriate under K.S.A. 2018 Supp. 22-3414(3). See State v.
Walker, 308 Kan. 409, 425, 421 P.3d 700 (2018); State v. Molina, 299 Kan. 651, 661,
325 P.3d 1142 (2014). An instruction on a lesser included crime is factually appropriate if
there is "'sufficient evidence, viewed in the light most favorable to the defendant or the
requesting party, that would have supported the instruction.'" State v. Chavez, 310 Kan.
421, 430, 447 P.3d 364 (2019) (quoting State v. Plummer, 295 Kan. 156, 163, 283 P.3d
202 [2012]). If an instruction on a lesser included crime would have been legally and
factually appropriate, the failure to give the instruction constitutes error. See State v.
James, 309 Kan. 1280, 1300, 443 P.3d 1063 (2019).
Discussion
Becker requested both second-degree murder and voluntary manslaughter
instructions. Becker argued the instructions were warranted because they were lesser
included offenses of first-degree premeditated murder. Becker preserved the lesser
included instruction issue for our review, so the first step of our analysis is satisfied.
The second step is determining whether it was error not to give these lesser
included instructions. Jury instructions on second-degree murder and voluntary
manslaughter were legally appropriate in Becker's trial because they are lesser included
offenses of first-degree premeditated murder. James, 309 Kan. at 1298. Therefore,
11
resolution of this issue turns on whether these lesser included instructions were factually
appropriate and, if so, whether failure to instruct on these lesser included crimes requires
reversal.
Second-Degree Intentional Murder Instruction
We first turn to Becker's proposed but rejected second-degree intentional murder
instruction. If we assume—without deciding—that the evidence presented at trial
factually supported the giving of a second-degree intentional murder instruction, then the
issue becomes whether the error in failing to give this lesser included instruction requires
reversal.
Becker's challenge necessitates the application of the nonconstitutional harmless
error test set forth in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011); see State v.
Ross, 310 Kan. 216, 223, 445 P.3d 726 (2019); Plummer, 295 Kan. at 168. Under this
test, the court must be persuaded that there is no reasonable probability that if the jury
had been instructed on the lesser included offense, it would have found Becker guilty of
second-degree intentional murder. Ward, 292 Kan. at 565.
The only difference between second-degree intentional murder and first-degree
premeditated murder is the added element of premeditation in a first-degree murder
charge. See State v. Haberlein, 296 Kan. 195, 204, 290 P.3d 640 (2012). Here, there was
no evidence presented upon which a reasonable juror could conclude that Becker
murdered Boyd without premeditation. Becker apologized to Boyd's family for the crime,
stating: "I wish there could have been another way but I did what I needed to do to
protect the woman that is my world." His motive was to prevent Boyd from prostituting
Sosa in order to obtain money for drugs. He carried out this objective by telling Boyd that
money for drugs could be found in a shed on his parents' property, but Becker would
need Boyd's help to get it. On the way to the shed Becker picked up a gun which he knew
12
was loaded. Once he and Boyd were at the back of the shed, Becker fired 10 shots at
Boyd, striking him 6 times. When Boyd fell to the ground, Becker stomped on his head to
make sure he was dead.
Given these facts, there was no reasonable probability that a rational juror would
have found that Becker's murder of Boyd was anything other than premeditated. We are
satisfied that any error in failing to give an instruction on second-degree murder had no
effect on the jury's verdict in this case. State v. Salary, 301 Kan. 586, 600, 343 P.3d 1165
(2015); State v. Killings, 301 Kan. 214, 224, 340 P.3d 1186 (2015).
Voluntary Manslaughter Instruction
Next, we turn to Becker's argument regarding the district court's failure to instruct
on voluntary manslaughter. Becker argues that a voluntary manslaughter instruction was
factually appropriate because the jury could have believed "the killing was not a cold,
premeditated murder, but one done in the heat of passion after the trio quarreled about
how to get drug money." Becker characterizes this as a "sudden" quarrel. The facts
disclose otherwise. After the dispute over how to obtain drug money, Becker lied to Boyd
about money they could get from a shed on the property at Becker's parents' house. They
traveled to Becker's parents' house in rural Ford County for that purpose. It was there that
Becker obtained the loaded gun and lured Boyd to the shed for the specific purpose of
murdering him. A sudden quarrel involves an "unforeseen angry altercation, dispute,
taunt, or accusation." State v. Johnson, 290 Kan. 1038, 1048, 236 P.3d 517 (2010). There
was no sudden quarrel here to support an instruction for voluntary manslaughter. The
district court did not err in failing to give this instruction.
13
Becker's Newly Raised Constitutional Issue
As a final point regarding these requested instructions, Becker argues, for the first
time on appeal, that the district court's refusal to give these lesser included offense
instructions violated his right to a jury trial and his right to due process under the U.S.
Constitution. These claims are predicated on the assertions that in denying lesser included
instructions the district court engaged in fact-finding that preempted the function of the
jury and that the lack of a lesser included alternative required the jury to render an all or
nothing verdict in violation of Becker's due process rights.
The general rule is that claims of error raised for the first time on appeal, even if
based on constitutional grounds, are not properly before the reviewing court. State v.
Williams, 295 Kan. 506, 517, 286 P.3d 195 (2012). But an appellate court may address an
issue for the first time on appeal if the issue meets one of our preservation exceptions.
State v. Patterson, 311 Kan. 1122, 455 P.3d 792 (2020). Here, Becker argues that his
claim is preserved because it meets our exception allowing newly asserted claims
involving only questions of law on proved or admitted facts that are determinative of the
case. See State v. Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008). In this
instance, we decide to consider his claim.
In Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980),
the court held that Alabama was constitutionally prohibited from eliminating the jury's
option of convicting a defendant in a capital case of a lesser included offense. 447 U.S. at
637-38. But the Beck Court declined to decide whether to extend this prohibition to trials
in noncapital cases. 447 U.S. at 638 n.14.
Following Beck, this court in State v. Love, 305 Kan. 716, 729-30, 387 P.3d 820
(2017), rejected a similar claim, concluding that the statutory elimination of all lesser
included offenses for felony murder found in K.S.A. 2015 Supp. 21-5109(b)(1) did not
14
violate due process. "Unlike the statutory scheme in Beck, the Kansas lesser-included-
offense statute does not create a 'capital specific artificial barrier to the provision of
instructions on offenses that actually are lesser included offenses under state law'—felony
murder is not a capital offense." 305 Kan. at 734. Consistent with the analysis in Beck
and Love, we find no merit in Becker's due process claim.
A criminal defendant's right to a jury trial is protected by the Sixth Amendment to
the United States Constitution. Similarly, Section 5 of the Kansas Constitution Bill of
Rights states: "The right of trial by jury shall be inviolate." Becker's jury trial argument
was asserted earlier in the context of Kansas constitutional law by the defendant in Love.
There, the court held that "[w]hether to give lesser included instructions is squarely in the
court's domain, rather than the jury's." 305 Kan. at 736. Moreover,
"We hold that the legislature's statutory elimination of lesser included offenses of
felony murder does not implicate Section 5. Although a defendant has a right under
Section 5 to have a jury determine his guilt of the charged crime in a felony prosecution,
determining what additional crimes upon which the jury should be instructed as lesser
included offenses is a matter of law for the court." 305 Kan. at 736-37.
The United States Supreme Court has not come to a contrary conclusion with
respect to the Sixth Amendment's protection of the right of a criminal defendant to trial
by jury. But the Sixth Circuit has addressed the issue and has arrived at the same
conclusion as the court did in Love: "Whether to give lesser included instructions is
squarely in the court's domain." 305 Kan. at 736; see McMullan v. Booker, 761 F.3d 662,
669 (6th Cir. 2014) ("The jury-trial right does not prohibit judges from declining jury
instructions on lesser included offenses in non-capital cases."). Based on this analysis, we
are not convinced that the district court's failure to instruct on claimed lesser included
crimes violated Becker's constitutional right to a trial by jury.
15
The district court did not err in failing to give a voluntary intoxication jury instruction.
Becker requested the voluntary intoxication instruction from PIK Crim. 4th
52.060, patterned after K.S.A. 2014 Supp. 21-5205(b). That statute provides:
"An act committed while in a state of voluntary intoxication is not less criminal
by reason thereof, but when a particular intent or other state of mind is a necessary
element to constitute a particular crime, the fact of intoxication may be taken into
consideration in determining such intent or state of mind." K.S.A. 2014 Supp. 21-
5205(b).
Becker objected to the district court's decision not to give this instruction. The
objection properly preserved the issue for our review. K.S.A. 2018 Supp. 22-3414(3).
A district court's failure to give a voluntary intoxication instruction is subject to harmless
error review. State v. Moore, 287 Kan. 121, 134, 194 P.3d 18 (2008).
Evidence of consumption of an intoxicant near the time of the commission of the
crime does not automatically render the voluntary intoxication instruction mandatory.
State v. Reed, 302 Kan. 390, 400, 352 P.3d 1043 (2015). A voluntary intoxication
instruction is not required unless "the State or the defendant presents sufficient evidence
showing intoxication to the extent of impairing the ability to form the requisite intent."
State v. Betancourt, 299 Kan. 131, 141, 322 P.3d 353 (2014). "'This court will not infer
impairment based on evidence of consumption alone.'" State v. Hilt, 299 Kan. 176, 193,
322 P.3d 367 (2014). "Loss of memory or inability to remember events before or during
the offense may show an inability to form intent." Betancourt, 299 Kan. at 141.
"'Evidence that the defendant is so impaired that he or she has lost the ability to reason, to
plan, to recall, or to exercise motor skills as a result of voluntary intoxication' can compel
a jury instruction." Reed, 302 Kan. at 400.
16
First-degree premeditated murder is defined as "the killing of a human being
committed: (1) [i]ntentionally, and with premeditation." K.S.A. 2018 Supp. 21-5402(a).
A person acts intentionally "when it is such person's conscious objective or desire to
engage in the conduct or cause the result." K.S.A. 2018 Supp. 21-5202(h). The court
instructed the jury that premeditation
"means to have thought the matter over beforehand, in other words, to have formed the
design or intent to kill before the act. Although there is no specific time period required
for premeditation, the concept of premeditation requires more than the instantaneous
intentional act of taking another life."
Becker argues there was ample evidence of methamphetamine consumption
presented at trial. The evidence establishes that Sosa, Becker, and Boyd had smoked
methamphetamine that night. But there is nothing to indicate how much time elapsed
between Becker's meth consumption and the shooting. Moreover, Becker presented no
direct evidence that he was intoxicated at the time of the shooting. There was no evidence
that his motor function was impaired. His ability to plan had not been impaired. He
systematically brought Boyd to his parents' house and then to their shed with the specific
intent to murder him. He accomplished the deed by obtaining from a bureau drawer a
pistol which he knew was loaded. He did so in a fashion that did not alert Boyd to what
was about to happen. Sosa described the shed as a "good distance" from the house. She
testified that it took "a couple minutes" to walk from the house to the shed. After
murdering Boyd, Becker apologized to Boyd's family, saying "I did what I needed to do
to protect [Sosa]."
As stated in State v. Davis, 306 Kan. 400, 414-15, 394 P.3d 817 (2017): "A
defendant's ability to recall the circumstances surrounding the charged crime and provide
a coherent narrative of his or her conduct undercuts a claim of intoxication sufficient to
warrant a jury instruction." Here, Becker provided police with a detailed and cogent
17
explanation of how he killed Boyd. The evidence relied upon by Becker, viewed in a
light most favorable to him, establishes consumption but not intoxication to the extent
that his ability to form the requisite intent was impaired. Hilt, 299 Kan. at 193.
As a final point on this issue, Becker argues that, at his sentencing hearing, one of
the district court's reasons for a downward departure sentence established that the district
court should have instructed the jury on voluntary intoxication at trial.
The court's journal entry of judgment, in the space for reasons cited as basis for
departure, states: "Court finds defendant's lack of criminal history and ability to
appreciate impaired by drug use substantial and compelling as mitigating factors." But
in the space for the court's additional comments, the court stated: "Defendant's ability to
appreciate impaired by drug use. Court found defendant's extreme distress due to drug
use is compelling but not substantial."
At sentencing the district court heard unsworn statements from Becker's parents.
His mother, Kathy Becker, told the court that "when Tony got on meth, he changed. Not
so much as that you'd notice, but he changed. It's only afterwards that I can—I can see it."
She did not provide any information that would indicate a mental impairment at the time
of the crime that would have warranted a voluntary intoxication instruction. Phillip
Becker, Becker's father, told the court his son was not violent. "What happened in the six
months prior to Chris' death, I don't—I didn't see it. . . . His teachers, we talked to them,
they said there was no violence in him. I don't know what happened." These were the
only statements related to Becker's mental state or his drug use.
None of this was presented at trial. Neither of Becker's parents testified at trial.
Their statements at the sentencing hearing do not establish a level of impairment at the
time of the crime that would have warranted a voluntary intoxication instruction. In
response to this new information, the court told Becker, "[M]aybe you can make an
18
argument that the meth and the extent that it changed you is some evidence to support the
extreme distress. But, I, again, don't find it's substantial and compelling, because it was a
voluntary action." The court did not find that Becker's habitual methamphetamine use
impaired his ability to appreciate the criminality of his actions in murdering Boyd or
detracted from the evidence of premeditation.
The district court did not err in failing to instruct on voluntary intoxication.
There was no cumulative error.
Relief from an accumulation of trial errors is predicated on a showing of
substantial prejudice that resulted in the denial of a fair trial. In assessing the cumulative
effect of errors during trial, the appellate court examines the errors in the context of the
entire record, considering how the trial judge dealt with the errors as they arose; the
nature and number of errors and their interrelationship, if any; and the overall strength of
the evidence. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014); see also State v.
Walker, 304 Kan. 441, 457-58, 372 P.3d 1147 (2016).While a single error standing alone
may not warrant a new trial, the cumulative effect of multiple errors may do so. To
invoke the doctrine of cumulative error, there must be multiple errors to accumulate.
State v. Gonzalez, 307 Kan. 575, 598, 412 P.3d 968 (2018).
Here, we assumed, without deciding, that the evidence presented at trial supported
the giving of a second-degree intentional murder instruction. If we consider the failure to
give that instruction to have been an error, the result is one harmless error and not
multiple errors that can be accumulated for purposes of a cumulative error analysis. As
Becker has demonstrated no other errors, there was no cumulative error in his trial.
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The district court erred in ordering lifetime postrelease supervision.
Becker was sentenced to a hard 25 life sentence to be followed by lifetime
postrelease supervision. Becker contends the lifetime postrelease supervision portion of
his sentence was illegal.
Standard of Review
Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question
of law over which we have unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d
415 (2016). Though the issue of lifetime postrelease supervision was not raised below, if
the imposition of lifetime postrelease supervision results in an illegal sentence, that error
can be corrected at any time. K.S.A. 2018 Supp. 22-3504.
Discussion
Both Becker and the State agree that Becker is not subject to postrelease
supervision. A sentencing court has no authority to order a term of postrelease
supervision in conjunction with an off-grid, indeterminate life sentence. State v. Edwards,
309 Kan. 830, 835, 440 P.3d 557 (2019). Defendants such as Becker sentenced under
K.S.A. 2018 Supp. 21-6620(c)(2)(A) "shall not be eligible for parole prior to serving 25
years' imprisonment." The district court erred in imposing a term of postrelease
supervision rather than parole. The improper imposition of lifetime postrelease
supervision can be vacated, allowing the district court to correct the judgment without the
need for further proceedings. K.S.A. 60-2106(c); State v. Johnson, 309 Kan. 992, 997-99,
441 P.3d 1036 (2019); State v. Phillips, 309 Kan. 475, 478, 437 P.3d 961 (2019); K.S.A.
2018 Supp. 22-3504(1) (correction of sentence); State v. Breeden, 297 Kan. 567, 593,
304 P.3d 660 (2013) (directing district court to enter nunc pro tunc order).
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The district court's order for lifetime postrelease supervision is vacated.
The conviction is affirmed; the portion of his sentence ordering lifetime
postrelease supervision is vacated.
PATRICK D. MCANANY, Senior Judge, assigned.1
1
REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No.
118,235 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the
vacancy on the court by the retirement of Justice Lee A. Johnson.
21