State v. Green

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 118,366

STATE OF KANSAS,
Appellee,

v.

THAD CHRISTOPHER GREEN,
Appellant.

SYLLABUS BY THE COURT

1.
An instruction on voluntary intoxication is unnecessary when there is no evidence
to support impairment of the defendant that would make it impossible to form the
necessary criminal intent.

2.
An instruction on a lesser included offense of voluntary manslaughter is
unnecessary when the defense relies on a theory of sudden quarrel or heat of passion, and
no evidence supports that theory.

3.
A district judge's refusal to instruct on voluntary intoxication and a lesser included
offense of voluntary manslaughter when there is no evidence to support either instruction
is a decision of law, not fact-finding involving weighing of evidence or evaluation of
witness credibility. It does not violate a criminal defendant's constitutional right to jury
trial.

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4.
The rule of Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392
(1980), does not apply in noncapital criminal cases. If it did, it would give no relief to a
defendant whose jury was not faced with an all-or-nothing choice between conviction and
acquittal.

5.
Even if it is error to admit a videotape of a criminal defendant's interview by law
enforcement that is not redacted to remove the interviewers' critical comments on the
defendant's credibility, the substance of the issue is unpreserved for appellate review in
this case.

6.
A cautionary instruction on informant testimony is not necessary when the
informants were not acting as agents of the State when they obtained the incriminating
information and their testimony was corroborated by other testimony and evidence.

7.
The cumulative error doctrine does not apply when no errors or only one error is
identified by an appellate court.

Appeal from Montgomery District Court; F. WILLIAM CULLINS, judge. Opinion filed August 21,
2020. Affirmed.

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

Jodi Litfin, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was
with her on the brief for appellee.

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The opinion of the court was delivered by

BEIER, J.: This is defendant Thad Christopher Green's direct appeal of his
convictions arising out of the death of Cameron Wawrzynaik. Wawrzynaik was the
boyfriend of the defendant's ex-wife.

A jury convicted the defendant of first-degree premeditated murder, aggravated
burglary, and arson. He raises seven issues in this appeal: (1) The jury should have been
instructed on the defense of voluntary intoxication; (2) the jury should have been
instructed on voluntary manslaughter as a lesser included offense of first-degree
premeditated murder; (3) the district court judge's failure to instruct on voluntary
intoxication and voluntary manslaughter deprived him of his constitutional right to a jury
trial, because the judge made factual determinations that should have been made by the
jury; (4) the failure to instruct on voluntary manslaughter pushed the jury to convict him
of first-degree premeditated murder even if jurors had a reasonable doubt about whether
the State had proved its case; (5) the district judge erred in admitting a videotaped
interrogation of the defendant into evidence because law enforcement agents repeatedly
challenged his honesty and truthfulness during that interrogation; (6) the district judge
erred in refusing to give a cautionary instruction about testimony from jailhouse
informants upon whom the State's case relied; and (7) cumulative error requires reversal
of the defendant's convictions and a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of December 23, 2015, Mary Lou Vannoster, who lived
in rural Montgomery County, Kansas, near Jefferson, looked out her living room window

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and saw her "whole yard was lit up." She ran outside, saw that the house next door was
on fire, and ran back inside to call 911.

Montgomery County dispatch sent firefighters and law enforcement, including
Detective Matthew Hastings of the Montgomery County Sheriff's Office, to the scene of
the fire. When Hastings arrived, the entire house was in flames and had "lost a lot of its
height and its shape." An outbuilding north of the house and a pickup in the driveway
also were on fire.

After speaking with Vannoster, Hastings found out that Wawrzynaik had been
renting the burning house from another neighbor's son. Hastings tried to contact
Wawrzynaik by phone but did not get a response.

Eventually Ron Cunningham, Wawrzynaik's stepfather, pulled up in a pickup.
Cunningham believed Wawrzynaik was inside the burning house because Wawrzynaik's
pickup was in the driveway.

As this situation evolved just north of the Kansas-Oklahoma border, Martha
Donelson Green and Fred Green were at home near Burbank, Oklahoma, south of the
border. About 12:15 a.m., Martha heard Fred answer a phone call.

Martha could hear "screaming and yelling" coming from the person who had
called. She could not hear much of what was being said—"just a really serious situation
was going on." She could hear Fred responding to the caller "really calm." The only word
from the caller that Martha could make out—a word she "heard real clear"—was "blood."
She believed Fred was talking to one of his sons—the defendant or his brother, Dustin.
After the call was over, Fred "started crying." According to Martha, "[H]e was yelling, 'I

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lost my son. I lost my son.'" Martha "thought that whatever happened on the phone . . .
was, you know, life or death," but Fred would not tell her what had happened.

Martha was caring for her grandbaby that night and needed help dealing with both
Fred and the baby; so she sent a text message to her daughter, Tasha Fox. Tasha and her
husband, Brad, shared an address but not a residence with Martha and Fred. The Foxes
came over, and Tasha took the baby upstairs, where she called 911.

Sheriff's Deputy Mike Stasyszen from Osage County, Oklahoma, was dispatched
to Fred and Martha's house. When he got there, Fred did not want to talk to him and told
him to go away. Eventually Martha let him into the house. Stasyszen would later testify
that "[Fred] was very frantic inside the house. He was running around picking up stuff,
throwing it down. He—like he was looking for something. He just kept saying, 'I've got
to go. I've got to go.'"

Fred eventually calmed down: "His face was still red. He still wasn't, like, real
coherent. He really wasn't his self, and he was trying to calm down. He wanted law
enforcement to leave." Martha told him, "Well, we've got to figure out what's going on,
Fred," but "he just wouldn't talk about it."

Fred left the house, and Martha asked the sheriff's deputies who remained if they
had heard about any wrecks or about the defendant or his brother "getting into trouble."
Martha would later testify: "[T]hen I told them about [the defendant] and [Ramanda
Green] having the divorce case and that Cameron [Wawrzynaik] was in Kansas. And I
said, 'You need to call Kansas and find out if something's happened up there.'" Martha
was worried that the defendant had hurt Wawrzynaik. Stasyszen would later testify that
Fred had told [Martha], "My son just killed somebody," and then became irate and,
according to her, "went crazy."
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 Stasyszen called dispatch to let them know Fred had left his home. The dispatcher
was Lacy Ferguson, who happened to be Ramanda's sister-in-law. Ferguson told
Stasyszen that the defendant was separated from Ramanda. She also told him that the
defendant was mad at Ramanda and her current boyfriend because Ramanda would not
take the defendant back. Stasyszen asked Ferguson if she knew where the boyfriend
lived; she told him that the boyfriend lived near Independence, Kansas. Stasyszen then
asked Ferguson to contact Montgomery County to do a welfare check on the boyfriend.

Ferguson asked her husband, John, who was on duty as an Osage County deputy,
to contact Ramanda to make sure she was okay. Ramanda was fine, but she had not been
able to get in touch Wawrzynaik. When Montgomery County was contacted, the
Oklahoma authorities learned that there was a fire at Wawrzynaik's house in Kansas.

Hastings would later testify about receiving a call from Osage County dispatch.
The dispatcher told him she might have information about the fire and "officers in her
county had been dispatched to the residence of a Fred Green [on a] report that he was
mentally distraught. She said that there was a belief that his son may have killed his ex-
wife's boyfriend."

When Hastings learned this information, he believed that Wawrzynaik had been in
the burning house and that it could be the scene of a homicide. Because of this and the
nature of the fire, Montgomery County contacted the state Fire Marshal to assist.

While Hastings waited for the state authorities to arrive at the scene of the fire, one
of the firefighters informed him that human remains had been found in the house. Their
location was consistent with the reported location of Wawrzynaik's bedroom. Although

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the defendant immediately became a suspect, he was not located by law enforcement
until about noon on December 23.

Earlier that day, KBI Special Agent Jeremy Newman followed up on a "ping" of
the cell phone number believed to be the defendant's. The ping, conducted from
Independence, Kansas, showed that the phone was near Burbank, and Newman and
another KBI agent drove to Pawhuska, Oklahoma, where the defendant and Ramanda
Green each lived.

When Newman arrived in Pawhuska—about 70 minutes' drive from
Independence—he sought another ping of Green's cell phone; it again showed that the
phone was located near Burbank.

Also early that morning, KBI agent David Falletti interviewed Brayden Green and
Donna Barnes at the Osage County Sheriff's Office. Brayden is the defendant's son from
a relationship before his marriage to Ramanda. Barnes is Brayden's mother. Brayden told
Falletti that his father had awakened him about 1 a.m. and told him he "did something
bad." His father was upset and starting to cry. Brayden would later testify that his aunt,
Kimberly Cass, came to the defendant's house later and took him to his uncle's house to
stay the rest of the night.

When the defendant later showed up at Cass' home, Cass contacted law
enforcement, and they arrested him. One of the arresting officers would later testify that
he heard him "make a comment about he didn't even own a gun. 'How could—could I
have killed him if I didn't own gun[?]'"

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 Newman and Falletti interviewed the defendant after the arrest. The agents first
gathered general personal information, including that the defendant had left the Army on
the previous June 2.

After the defendant's Miranda rights were read, the agents questioned him about
his relationship with Ramanda. When asked about divorce, the defendant said, "Oh, man.
This is bad. I'm going to start out with the beginning for you, okay."

The defendant told the agents that he and Ramanda were living in Washington
state before his deployment but decided she would move back to Oklahoma with the kids
while he was gone. A few days before Green left the country, Ramanda flew to
Washington so he could see her one more time. During that trip, he said, he caught
Ramanda having sex with another man. Despite this indiscretion, he said, the couple
"decided, you know, we were going to just enjoy the time that we have. It was a mistake
that was made I—you know, I always forgive her, I love her."

When the defendant completed his deployment, Ramanda again flew to
Washington to see him. He said: "[Y]ou know, and I could tell something was different
about her. Man knows when his woman's been tampered with. And . . . I don't give a shit,
you know, I'm glad to be here with her." Again, Ramanda returned to Oklahoma while
the defendant finished his service time. Then, although Ramanda told him to stay in
Washington, he returned to Oklahoma.

Green continued:

"Anyway I get home and she doesn't want to be around me or nothing. So I was
kind of like, you know: Mandy, I want to be with you, you know. And she said: All
right, well, we'll work on you and me. And we did, we was—you know, she acted like it

8
 anyway. And went over to the house when I had the kids with me. And it was a Father's
Day weekend and I went over to the house and I sat down on the porch—she wouldn't let
me stay there, I had to live at my mom's just a couple blocks down the road[].

"I sat on the porch, and the kids, they ran in the house. I had my cigarette, and I
was just sitting there. She comes to the door and she shut the door behind her. Not all the
way, just about that far open. And she, she said: You can't be here. And I was like: What
are you talking about? I already knew about Cameron, okay, I did. She told me."

The defendant believed that Ramanda "was wanting to separate from me but I was
wanting to kind of work on it. She told me she wanted to work on it too but in the
meantime I—when we was working on it she also let me know that she was seeing
Cameron." The defendant said he thought: "Well, hell, I got to pick up my game, you
know." He also claimed that he could accept that she was seeing someone else, "because,
hell, I did deploy, I left her."

The defendant then described events from Father's Day weekend.

"Kids run in, she comes to the house—or the door. She kind of closed it behind her. She
said: You can't be here. And I thought: Why? She said: I got company. And I was like:
You got—you got Cameron here? She said: Yes. I said: Well, I want to meet him. She
said: No. I said: Mandy, I want to meet the man who's fucking my wife, at least give me
that."

The defendant said he pushed past Ramanda and opened the door with his foot. By that
point, he "was pretty heated" and Wawrzynaik

"raised his hand to hit me and I told him, I said: [']You hit me and you'll see what
happens.['] Well, he put his arm down. Mandy came in between us and—Mandy came in
between us, this guy took off running. Running. Well, if you're running I'm going to

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 chase you, you know. He's tagging my wife. At the time I was still in love with her
deeply, you know. And so I chased [him.]"

The defendant said Wawrzynaik ran across the street to Ramanda's father's home. The
two men scuffled, and Wawrzynaik grabbed the defendant by his shirt. Eventually
Ramanda's father was able to break them up. The defendant got into his Jeep with his
children and drove away. He told the agents that a sheriff's deputy stopped him "about a
mile down the road" and told him he "was breaking and entering, [committing] assault
and battery in the presence of a minor." He claimed that he spent three days in jail as a
result of the incident before charges were dismissed.

The defendant then insisted he had "moved on" from his relationship with
Ramanda and was "doing fine." He said he had girlfriends, although he "never
stabilize[d] with one person. I call them chew toys, you know, because ain't nobody
going to mean anything to me anymore."

The defendant next talked about his divorce from Ramanda, which had been
finalized a few weeks earlier. He said he "pretty much won. Nobody won, it's a lose-lose
situation. But [he] felt like . . . for a father to get joint custody, [he was] doing pretty
good."

The night the divorce was finalized, the defendant was supposed to have time with
his children. Ramanda brought them to his house, and he claimed that she told him she
had to "get rid of Cameron." He "figured [she] would," stating "I mean hell, you had to
choose him—What[,] you going to choose him over the kids? And man, that bitch." He
said Ramanda then told him again that she wanted to work on her relationship with him.
Although he said he was initially skeptical, she hugged him and he thought, "Oh, my God
all right, cool we can do this."

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 The defendant then continued his story:

"She spent a week and a half with me. We—she'd stay with me for several days
and then I'd go spend the night with her. You know, about a week and a half went by and
on Friday she came to my work and she said: Thad, I don't want to do this no more. I
want him. And I thought: Oh, my God, make your damn mind up you're playing with
people, you know. And that's pretty much the end of it, you know. She—she left to be
with him and she contacts me all the time and we talk and . . . I'm not one to give up. I
don't want to give up.

....

"There's nothing wrong with that, that's just the way I was taught, you know.
And—but it's more than just me and her riding on this, it's those three kids and they want
to see us together so bad. So I thought I'd fight for them and I kept—every time me and
Mandy would talk about me and her. I'd say: Hey, you know, remember this in the past
and what we used to do when we was little and things like that. Well, you know we need
to work on you—we need to put the family back together.

"I wasn't buying it about anything. And she would always get kind of upset and it
would get me upset too, but finally I was just kind of like: I'm done. I mean I'm done. So
I don't know."

One of the interviewing KBI agents asked the defendant when he had seen
Ramanda last. He said she had sent him a text message the afternoon of the day before,
asking whether he had heard from his divorce attorney. He was not going to talk about
that with her because "at that time, you know, she was doing her thing[;] I was doing
mine." But, as the conversation continued, he brought up "me and her kind of doing
something again" and they "made a decision that he was going to come over and . . .
going to hang[ out] with her and maybe stay the night, you know. No sex, nothing like
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that, it's just—I just . . . wanted to visit with her and everything. I even took her a
present."

Although Ramanda told him she would call him back, he never heard from her. He
called her about 8 p.m., and she said she was in the middle of putting the children to bed
and said she would call or text him "in a little bit." When he did not hear from her, he
texted and she did not reply. He assumed she must have fallen asleep, but he wanted to
take her present to her. And he "was so excited about going and being with her, you
know, and I love her." He went to her house and knocked, but she did not come to the
door. He left the present and a note at Ramanda's door. The present, a knife, was wrapped
in $1 bills.

The defendant said he went home and began drinking and fell asleep while
watching a movie. When he woke up, he "was wanting to go hunting." He was trying to
prepare but "was still pretty fucked up." Later, when the defendant took his rifle and went
hunting, he said, he passed out and woke again about 11 a.m. When he realized his phone
had been off, he turned it on

"and hell, all hell broke loose. People were texting me or—texting me and asking me
where I was. And I—and so I was like: I'm going to call Mom, you know. I called my
mom and she—she enlightened me on some stuff and I was like: Holy dog shit."

According to the defendant, his mother told him to come to town right away and
go to the Sheriff's Department. He said that she told him Wawrzynaik had been shot and
killed and that law enforcement believed he was responsible. The defendant drove to
town, went to a friend's house and then to his sister's, where he was arrested.

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 The agents asked the defendant whether he or his mother had been getting any
information from Facebook or other social media. He said he did not use Facebook very
much but, while he was driving to town, a "friend of mine called and she's like: Thad,
[Ramanda] is posting shit on Facebook saying that you killed Cameron." When asked
why someone would say he had something to do with Wawrzynaik's death, the defendant
replied: "Well, I'm her ex, I mean it's reasonable. I can see that, you know."

When one of the agents asked the defendant if he had been in Kansas within the
last couple of days, he said it was possible, because he "hit[s] a lot of back roads." The
next question was whether he had ever been to Wawrzynaik's house. He said that he had
been there during the divorce proceedings to investigate whether Ramanda was living
there with the children.

The defendant denied any involvement in the killing. When asked again why
people would say he might have been involved, he replied:

"Because at one time I—I hated him for what he'd done. He knew I was in the
Army. He knew I was serving the country that he walks on . . . . He was with the woman
I love, I love her. I mean I do. And he was around the kids.

"So yeah, I had some anger for him because he knew I was in the Military. He
knew she was married to me and I was coming home. He knew I wasn't going to be
happy, no man would be happy. But I backed off, you know. At first I was very pissed.
That day I went through the door, that was my house. So yeah, I was pissed off. Yeah,
there was hate there at one time. But hell, . . . I've got girlfriends that look way better than
her now."

When the agents told the defendant that they knew he had talked to several people
about 1 a.m., saying he done something wrong, he conceded that he had talked to

13
someone but claimed he was referring to committing suicide. One of the agents pointed
out that he had not said he was going to do something but that he had done something.
But the defendant continued to insist that he had not told anyone he had done anything;
he talked to people only about wanting to kill himself.

The defendant admitted that he had spoken with his dad and did not have an
explanation for why his dad would tell law enforcement he had been in Kansas and had
had "something to do with Cameron's death." He denied being at Wawrzynaik's house
that night or knowing what had happened there. When the agents pressed, the defendant
said, "I drink so I get kind of depressed sometimes. Well, like, you know, she kind of
basically stood me up so I went to drinking and hell."

When asked about the amount he had drunk, the defendant said he had drunk half
a bottle of Triple Crown but did not "kill" the bottle; "[Y]ou know, I sip it with my soda."

The agents continued to confront the defendant about his father's and Brayden's
statements that he told them he had done something bad, but the defendant continued to
insist that he was talking only about wanting to kill himself.

One of the agents then asked the defendant why data from cell phone towers
showed that he had been near Wawrzynaik's house. The defendant said, "Because I back
road when I drink. I mean most people—lot of people do. I mean, hell, I get on the road
and I just go." When reminded that he had said earlier in the interrogation that he passed
out at home after drinking, the defendant said simply: "I woke up."

The agents continued pressing the defendant, who continued resisting. Yet he
eventually said, "I didn't go to Cameron's house but I was—I had been drinking and I
went down some country roads and I ended up over there and . . . I just came home."
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When the agents returned to the subject of cell phone records, the defendant admitted it
would be "reasonable" for the records to show that he had been near the house because he
"was up there around there so it's going to put me close." He admitted, "I was drinking,
was going down the road, took a back road. I ended up—I did end up in Kansas. I was in
the vicinity of the house and I turned around and came home." When asked how close he
had come to Wawrzynaik's house, the defendant said, "I can see the railroad track and I
knew to get the fuck out of there." At trial, a law enforcement officer would testify there
were railroad tracks approximately 1,100 feet from Wawrzynaik's house.

The agents asked the defendant if he owned any firearms. He denied that he did,
claiming Ramanda had made him pawn all of his guns. When asked why Brayden would
say that he had a pistol, the defendant initially said that a friend had brought a gun to his
house and possibly left it there for a time. In response to one of the agents pointing out
that it was odd the defendant would mention on arrest that Wawrzynaik had been shot,
because that had not yet been determined, the defendant claimed that his mother had told
him Wawrzynaik had been shot.

The agents again asked the defendant to explain the statements his father and
Brayden had made to law enforcement. The defendant said, "I was protecting Brayden for
the worst when it comes to me because, you know, I was thinking about—I was going to
shoot myself." One of the agents immediately asked, "With what?" The defendant
responded: "My rifle—not my rifle but it's my hunting rifle. It's not really mine, it's
Dad's, .45-70 lever-action."

When the defendant recounted purchasing alcohol, one of the KBI agents asked
whether, when he was driving to Kansas, he was "to the point where you think you would
have blown over the state legal limit?" The defendant responded: "Oh, yeah, yeah."

15
 The defendant claimed he did not intend to confront Wawrzynaik when he drove
to Kansas. He said, "I did not want to do that. I just—I don't really know what I was
thinking at the time and I had a good idea where I was going but I was just kind of just
letting—" The defendant attempted to clarify by saying that he meant only that he "knew
the roads [he] was taking. . . . I mainly just wanted to go for a joy ride but it led me there
so—somewhere around there and I—and I seen that railroad track and I think: Fuck that
shit, and I left."

Throughout the remainder of the interview, as recorded on the videotape
eventually shown to the jury at trial, the defendant maintained that he had nothing to do
with Wawrzynaik's death.

The interview with the agents concluded when the defendant told the agents he
wanted a lawyer's assistance, but the jury was not made aware of this request or its result.

The State charged Green with premeditated first-degree murder, arson, and
aggravated burglary.

Before trial, the State filed a motion to admit evidence of other crimes or civil
wrongs under K.S.A. 60-455. The State wanted the district judge to allow the jury to hear
the defendant's statements about driving under the influence, asserting that the evidence
would show the defendant was not intoxicated to the level that would prevent him from
forming the necessary intent. The judge allowed the evidence, saying:

"The Court would believe that it would go to his state of mind. He does talk
about intoxication; that's going to come up. And if the Defendant makes a statement in
there, which he does, that he wasn't too intoxicated to not remember or drive, that shows
that he was in clear control of his faculties, so the Court's going to find that that is
admissible.
16
 "And the Court does not feel that any prejudice would result to the Defendant[,]
would outweigh the need to admit it and explain to the fact that his intent—or that his
state of mind was not to an extent that he was so intoxicated he couldn't understand what
was occurring."

At trial, Ramanda was the State's first witness. She recounted the difficulties of her
relationship with Green and admitted her infidelity in Washington right before the
defendant was deployed. In her view, the marriage continued to deteriorate during the
deployment, and she began dating Wawrzynaik. When Green came back, she sought a
divorce.

Ramanda also described the Father's Day altercation. She was fearful about what
the defendant would do when he got out of jail and obtained a protective order. She
continued dating Wawrzynaik, and they moved in together in Kansas. She did not tell the
defendant. When he found out, he said, "Not happening," and "I'll see you in court." The
judge in the divorce case ordered her to bring the couple's children back to Oklahoma.

The divorce was granted the day before Thanksgiving, and Ramanda said she
rejected the defendant's suggestion that evening to "forget it all" and get married again.
Later that night, while the children were staying with the defendant, he sent a text to
Ramanda: "'You're staying the night with him instead of me. I know you're going to have
sex with him. You just told me that we could work on us. That ain't right. What am I
supposed to think about that?'" He continued to send similar lovelorn texts: "I can't play
your games anymore"; "I can't get your voice out of my head. You're driving me crazy.
I'm always looking out for you. I told you I would always be there for you even when you
don't want me"; and "Bite your lips. Your words are robbery. Do you grin inside 'cause
you're killing me? All along we've talked of forever. I kind of think we won't get better."

17
 Ramanda conceded that she made some effort to work on her relationship with the
defendant after the divorce, including having sex with him, but insisted that she did not
want to get back together. She said she was appeasing him and fearful for the children's
safety in his custody.

Ramanda and Wawrzynaik split up temporarily during the weeks after the divorce,
which she attributed to choosing her children over him after the judge in the divorce case
entered an order preventing him from being around the children. When she began seeing
Wawrzynaik again, she was concerned the defendant would find out: "I didn't know how
he was going to react. I was scared."

In mid-December, Ramanda said, the defendant told her that he would kill
Wawrzynaik. She testified that he "said it a lot": "[t]ext message, telephone, face to face.
Any time he got angry, he said it." At one point, the defendant told her he would shoot
Wawrzynaik. Specifically, on December 17, Ramanda received a text from the defendant
that read: "You need to get off this shitty Cameron thing. It's getting old and starting to
piss me off." When Ramanda responded, telling the defendant that the problem was not
Wawrzynaik, the defendant responded, "'It's always about him. Yes, we are done. But me
and him are not done. Almost every day I learn or acquire more and more info on him.
He's a dead duck.'" Ramanda did not think the defendant would follow through on his
threats, but, she said, Wawrzynaik "took it a little bit more serious."

Three days later, when Ramanda and the defendant texted about Christmas gifts
for the children, the defendant asked about a photograph of Ramanda and Wawrzynaik
together, which, apparently, he had seen on Facebook. Ramanda asked whether he was
watching Wawrzynaik. He responded that he had other people to do that but that he was
watching her.

18
 According to Ramanda, the defendant again said "he was going to kill Cameron"
in a phone conversation on December 22. He said that "he hated him because he tore his
family apart." Despite this threat, Ramanda eventually consented to the defendant's
request to come by that evening; still, she did not answer the door when she heard a
knock. Via text, Wawrzynaik advised Ramanda to call the police. Instead, Ramanda
called her father, who was the long-time chief of police in Barnsdall, Oklahoma, hoping
he would be able to come over and tell the person on the porch to leave. As it turned out,
the person at the door left without encouragement from anyone, and Ramanda continued
to communicate with Wawrzynaik, speaking with him on the telephone until about 11
p.m.

Two hours later, Ramanda was alerted by her father that "something was going
on," and she tried unsuccessfully to contact Wawrzynaik by phone. When her father
reached her house, he found a letter and a gift on her front porch. The gift box was
wrapped in one dollar bills. Based on what was written in the first couple of lines of the
letter, the handwriting, and the use of "Mandy," Ramanda was able to identify the letter
and gift as coming from the defendant.

Ramanda's father, John L. Ferguson, also testified at trial, describing the Father's
Day incident and Ramanda's fear for Wawrzynaik's safety after the divorce. Ferguson had
been on duty in Barnsdall on the night of December 22 when his daughter called him, and
he could not come to her house in Pawhuska to assist her with the person knocking on her
door. He advised her to call her brother or the local police. He confirmed Ramanda's
version of what occurred when he called her later and came to her house to take her and
the children to his home. Later that day, Ramanda and her family learned that
Wawrzynaik had died.

19
 Kevin Young, an Osage County Sheriff's deputy, also testified about a threat the
defendant had made about Wawrzynaik. Young had interviewed the defendant after the
Father's Day incident, when the defendant "was real agitated, animated, and upset, mad."
Young said, "He told me he was going to go—that he wanted to kill Cameron because he
was committing adultery with his wife." The only reason Wawrzynaik was still alive,
according to the defendant, was that "he couldn't catch him."

The State also presented evidence from two witnesses who had known the
defendant since school days. One, David Dove, testified that the defendant bought a gun
from him in September or October 2015. The gun "was pink; about three to four inches; a
six—six-shot revolver." The other, Amber Radford, testified that she had a Facebook
conversation on November 25, 2015, with the defendant about a pink gun he had "just
bought." He sent her a picture of it.

Martha also testified during the State's case, describing the late-night phone call to
Fred, his extreme reactions to it, the arrival of the Foxes, and law enforcement's eventual
response to the house she shared with Fred. Before Fred left the house, she took a loaded
gun from him. She still did not know who had called Fred, but she understood him to be
on the way to that person's house. She spent the rest of the night with the Foxes,
contacting Cass to check on the defendant and Dustin. She eventually got word that Cass
had found Dustin, who was fine, and was told that Cass had gone to the defendant's house
and picked up Brayden. Cass told Martha that the defendant would not talk to her and
Cass thought he was under the influence of something.

Martha also had seen the defendant with a pink pistol on her property on
Thanksgiving.

20
 Fred also testified and, on the prosecutor's urging, described the defendant's hurt
over the divorce and Ramanda's relationship with Wawrzynaik. He admitted that both he
and the defendant knew where Wawrzynaik lived; he had taken photos at Wawrzynaik's
place during the pendency of the divorce, and the defendant had been with him when he
did so.

According to Fred, the defendant called him just after midnight on December 23,
and, "Well, he—he acted as though he was kind of—he was drunk. He acted suicidal, and
he was going to hurt himself. And I thought maybe he might have—had already hurt
himself." Fred admitted that he was very upset when he got off the phone, because "I
couldn't help my son. He's drunk. I've never seen him drunk like this. He's never, ever
been—I've never seen my son drink like this or act like this on alcohol." He said that his
statement that he had lost his son meant that he thought the defendant was going to
commit suicide and "as a father, I failed."

Fred denied knowing during the phone call where the defendant was or had been.
He said he did not want the defendant to go deer hunting the next morning, as planned,
but he did not want him driving drunk. Fred also denied that the defendant had mentioned
Wawrzynaik or Ramanda during the call. He did recall the defendant mentioning
something about blood, but he assumed that he was cutting himself.

Fred acknowledged that he did not want to talk with law enforcement that night.
He said that when he left his house, he intended to go to Pawhuska and look for the
defendant, "but then if there was something wrong, if he had something, I couldn't face it.
And if he had done some—if he committed anything, suicide to himself, I can't—I can't
be there. I can't. I didn't want to be there." As a result, Fred did not end up going to the
defendant's house. Fred agreed with the prosecutor that he had "probably" tried to call the
defendant at 12:52 a.m., 1:11 a.m., and 1:24 a.m. to find out where he was.
21
 Fred said he received a text from the defendant at 2:13 a.m., at which point the
defendant was at Fred's house and ready to go hunting. Fred was no longer worried
because his son had driven there safely and seemed to be over his "suicidal thing." Fred
told the defendant that law enforcement was at the house but figured they must have left
by that point. Fred was home and in bed about 3 a.m., unconcerned about Martha because
he thought she would have gone to the Foxes' house.

The State showed Fred a photograph of a pink revolver. He was initially reluctant
to answer questions but eventually conceded that he had seen the defendant with a similar
gun.

Cunningham, Wawrzynaik's stepfather, testified for the State that his stepson had
been "afraid of what the ex-husband would do" after the divorce. He also described
getting a call about the fire about 1:30 a.m. on December 23. When he arrived at the
scene, the house was basically "gone." When he was told a body had been found, he
"knew it was my son." After he went home to tell his wife what had happened, he
returned to the scene to tell law enforcement about the "trouble between Cameron and the
ex-husband."

The State also called Brayden to testify. He confirmed that his father had
awakened him in the early hours of December 23, but he said he could not remember
what happened, other than being picked up by his aunt and going to his Uncle Dustin's
house. He also had seen his father with a pink revolver before that night and had not seen
him with it since.

The defendant's sister, Cass, testified about a text exchange she had with the
defendant on November 24 and 25—when the divorce had just become final. The
22
defendant told her to look up "'The Chick Lady .38.'" Cass could not remember if she
actually looked it up, but her text message in response was: "That's nice and pink." She
conceded that the "Chick Lady" was a gun. Green responded to Cass' text message: "Yea.
It's very smooth with a laser pointer. I don't have one. Nope. Nope. Nope. Not me. Not at
all."

Cass said she and the defendant had planned to go hunting on the morning of
December 23, but she changed her mind because she had to work. Shortly after midnight
that morning, she received a call from Martha, who wanted her to check on Dustin and
the defendant. She checked on Dustin first and everything seemed fine with him. The two
of them then went to check on the defendant but went to Kum & Go first. Cass said they
were not in a big hurry, "[b]ecause Thad's a big boy. . . . He's a good kid." When the pair
arrived at the defendant's house a little after 1 a.m., the defendant told them he was fine.
Cass thought he "may have been drinking." She told him she needed to work rather than
go hunting, and he said he still wanted to go. Because he was going to leave, she and
Dustin took Brayden with them. Cass said she also was "ornery" as she left, putting the
defendant's hunting gun behind a door. She claimed she did not want him to get a bigger
deer than she had or would. She "wouldn't say [the defendant was] suicidal, but it
would—anybody going through a divorce, you know—it's hard on a heart, yes."

The next morning, while Cass was at work, Brayden's mother, Barnes, came to tell
her before noon that "the law was looking for Thad." Cass told Barnes that he was
probably out hunting.

When the State called Barnes to testify, she confirmed the defendant's upset over
his divorce and his possession of a pink gun. Barnes said she did not remember telling
law enforcement, "I know he did something really bad," but she probably told Brayden
that his dad was "in a lot of trouble."
23
 Barnes, who was present when the defendant was arrested midday on December
23, did not remember hearing him say, "I don't own a gun. How could I shoot him if I
don't own one[?]" as he was being arrested. Before that point, when she had spoken to the
defendant by phone, she told him Wawrzynaik had been killed; she thought she "said . . .
he was murdered and his house was burnt." She did not think that she had told the
defendant that Wawrzynaik had been shot.

Anthony Celeste, a special agent for the state Fire Marshal, testified about his
investigation of the cause of the fire at Wawrzynaik's house. Celeste concluded the cause
was "incendiary," which meant "a person intentionally setting a fire where fire should not
be." Based on the scene alone, he could not rule out either incendiary or accidental
causes. His conclusion took into consideration that "[p]rimarily . . . we had a homicide
right—prior to this fire and then statements that were reported to me made by Thad
Green."

Erik Mitchell, a forensic pathologist, testified about the results of Wawrzynaik's
autopsy. Wawrzynaik had been shot at least four times in the chest. In addition, Mitchell
identified an injury to Wawrzynaik's head but could not determine its specific nature
because of fire damage to the body. There was "heat-fixed blood" around some of the
injuries, which was consistent with trauma rather than fire. This showed "that a lot of
blood was released into the airway, and then there was fire." Wawrzynaik was "injured
prior to the time of exposure to significant heat." Mitchell concluded that the manner of
death was homicide:

"The gunshots that involved the chest, untreated, would be expected to kill. The
gunshot that goes through the left kidney, given time, would probably kill. The gunshot

24
 that just goes through the chest wall, that is—might or might not. . . . The anatomic
findings, pretty much define that the only reasonable explanation is that it is a homicide."

Lamar Shoemaker, another special agent with the state Fire Marshal, observed the
autopsy and testified to establish the time when law enforcement first learned that
Wawrzynaik had been shot. Mitchell informed Shoemaker of that fact 3:30 p.m. to 4:00
p.m. on December 23—after the time when the defendant was arrested.

The State also introduced evidence from multiple cell phone providers. Rhonda
Woolman from the Mid-States Organized Crime Information Center analyzed the data
and testified to the results. She concluded that a 7:02 p.m. call on December 22 from the
defendant's phone was made through a cell tower just outside of Pawhuska; a 12:13 a.m.
call on December 23 from his phone was made through a tower just outside of
Coffeyville, Kansas; and a 12:40 p.m. call on December 23 from his phone was made
through a tower just outside of Pawhuska.

Newman testified about his December 23 videotaped interview of Green,
discussed above, as well as an interview of Fred about seven months after the murder.
Fred told Newman that, when he was unable to find the defendant in Pawhuska on the
night of the murder, he "stopped by the side of the road, had an emotional breakdown
until he had received the text message from Thad, and then he returned back to his
residence." Fred also said that Cass had placed the hunting rifle, which was his, outside
of the defendant's house when she was there and that Fred had picked it up.

Christopher Williams, who was a detective with the Montgomery County Sheriff's
Office at the time of Wawrzynaik's murder, testified about a January 2016 jailhouse call
between the defendant and members of his family. While talking to Cass, the defendant
said, "Leviticus 20:10," and then repeated it for her. Williams read Leviticus 20:10 for the

25
jury: "If a man commits adultery with another man's wife—with the wife of his
neighbor—both adulterer and the adulteress are to be put to death."

Robert Martin, who was in jail in Montgomery County at the same time as the
defendant, testified that he overheard the defendant "telling the story" of the murder of
Wawrzynaik. The defendant was acting out his movements, "had his hand up in the shape
of a gun and was moving like he was pulling the trigger." Martin said,

"Before I knew it was Cam, he pretty much said that he, you know, he studied
him. Knew that his Facebook—address that he had on Facebook was the wrong one.

"He said that . . . he was feeling down, had been drinking, missing his kids, and
drove from Osage to Cam's house, pulled up, looked in the window, seen Cam sleeping,
went into the back door and stood over him with a .22 mag revolver and killed him, and
that he lit the house on fire but did not use an accelerant. And he said he learned that in
his military background.

"He said the only mistake he made was the one phone call he made in between
towers. He said he didn't destroy the gun but they wouldn't find it."

At the end of this recitation, according to Martin, the defendant mentioned "Cameron," at
which point Martin asked, "'Cam[?]'" The defendant looked at Martin "real fast and—and
he said, 'Only people that are close to him know him as Cam.'"

A cellmate of defendant's, Matthew Herndon, also testified about what the
defendant had told him about Wawrzynaik's death:

"That the night of him coming to Kansas—prior to him coming to Kansas that
he'd gone to Ramanda's house to—to try to get in touch with her and knocked on the

26
 door. She didn't answer, so he then came to Kansas to—with the intention to just spray-
paint the house or something.

....

"He said that after he got there—he'd showed up at the residence, he—he, like,
approached the house and he looked in a window, and he noticed that Cameron was
asleep in—in a bed in the house."

On seeing the sleeping Wawrzynaik, the defendant thought "this was his chance."
Herndon said he understood the defendant to mean that he could pay Wawrzynaik back
"for what he had done. You know, with getting with Ramanda."

According to the story Herndon described at trial, the defendant picked the lock to
one of the doors to Wawrzynaik's house. "And he went in the house. Cameron was asleep
in bed, and he told him to wake up. Screamed at him to wake up, and shot him three
times. . . . Well, at the same time, he said he shot him three times, and then Cameron was
startled from—and jumped up out of bed and—and stumbled on one side of the bed, and
then he shot him two more times." The defendant had a "pink .38 revolver with a laser
sight on it." He also had a knife with him.

After the second set of shots, while Wawrzynaik was on the floor, "[the defendant]
took the knife he had and stabbed him in the base of his neck." The defendant told
Herndon, "that the blood just exploded, kind of, you know, all over his hands and stuff.
And that—then he had realized what you know, something bad had just happened." The
defendant decided to burn the house down. "[H]e took a lighter and lit a pair of nylon
shorts that Cameron was wearing on fire first and then different spots inside there—the
house."

27
 Herndon further testified that the defendant called his dad and "told him that he'd
done something bad." According to Herndon, the defendant also described going into his
own house and waking his son up and saying "a man's got to do what a man's got to do."
The defendant then washed his clothes and "went somewhere on his father's property."
Once there, the defendant said, someone "advised" him to return to his own house for his
clothes. After retrieving them, he went back to his father's, cleaned up his Jeep, and
dumped bleach on his clothes and hands. He also told Herndon that he met with someone
and hid the gun on his father's property, under a downed fence near a pond.

After Herndon testified, Newman was recalled to testify that Herndon had told
him the defendant described Wawrzynaik's house as sparsely furnished, something not
previously known to law enforcement. Ramanda confirmed this fact to Newman.

Although Fred's property was searched, no gun was found. Through the testimony
of Joseph Dye, the State admitted recordings of several jailhouse calls between Green and
acquaintances and family. Of note, the defendant and Fred spoke in September 2016,
shortly after Fred's property had been searched. Fred told the defendant that "company"
had come the other day and that everything "went fine." Fred also said the company did
not have a warrant, but, if they wanted to look, he would let them look. Later in the same
conversation, the defendant asked Fred about the price of metal and said it might be a
good time to melt metal down and sell it.

The State also played a recording of a conversation between the defendant and
Barnes. The call apparently took place before the defendant's September 2016
conversation with Fred. In the call, Green implored Barnes to get in touch with his father
and repeatedly told her to tell him to "melt it down."

28
 After the State rested its case, the court held a jury instructions conference outside
the presence of the jury. Defense counsel requested a cautionary instruction for
informants testifying in exchange for benefits. The district judge denied the request,
saying:

"The Court would note that the first criteri[on] is if the informant's testimony is
substantially uncorroborated. It would appear to the Court that Matt Herndon's testimony
and Bobby Martin's testimony is substantially corroborated."

The judge also noted that at the time Martin and Herndon got at least their initial
information from the defendant, they were not agents of the State.

Based on the evidence presented, defense counsel also asked for voluntary
manslaughter and voluntary intoxication instructions. Counsel argued that, based on
Herndon's testimony, "the plan or the information that he obtained was to simply go up
and maybe spray-paint the property; however, because of the intoxication, drinking, the
holidays, and the depression, . . . he just snapped."

Again, the district judge denied the requests, saying:

"THE COURT: All right. I'll make this simple. The Court's going to deny
anything below second-degree intentional. The Court does not believe heat of passion
would apply. This was an ongoing issue that—the divorce between and the relationship
between the victim, Ramanda Green, and Thad Green—this was an issue that had gone
on for months, if not a year. It was clearly not done in the heat of passion. As the State
would indicate, there is evidence that he wrote a note and that he had plans—and planned
to go up to Kansas. So for those reasons, heat of passion would not apply.

"As to the intoxication defense, there is evidence in the record as it would relate
to intoxication, but there's no evidence as to what the Defendant's intox—state of mind
29
 was at the time the incident occurred—or the act occurred, so the record is completely
void of any evidence that would show that he was intoxicated at the moment that this
happened.

"The Court listened to the Defendant's statement to—talk about how much
alcohol he had been consuming. He made a lot of statements in there. He said he had just
killed the alcohol—he didn't just kill the alcohol, he would sip on it. He said he drank his
normal amount.

"The Defendant, in a statement to the KBI agent, says that he remembers it all.
He denies blacking out. Says he was over the legal limit, but he was driving—not to an
extent that he would be impaired because he didn't draw the attention of law enforcement.

"His son says that when he was woke up, his dad was drinking but he didn't seem
intoxicated. His son Brayden testified that when he woke him up he seemed normal. And
the Court would note in Brayden's taped statement that he did not mention his dad being
intoxicated.

"His sister—the same thing. She mentioned that she saw alcoholic bottles; said
that she smelled alcohol, but his sister never said that he was drunk.

"And then the Court would note for the record, the Defendant appeared to take
steps to conceal his crime, which would show that he knew what he did was wrong."

Defense counsel pointed out evidence from Cass that the defendant was intoxicated and
Fred's testimony that his son was "slurring his words, that he was drunk and suicidal," but
the judge rejected its evidentiary value: "[A]s to the last statements about his sister and
his father, the Court has no idea when the Defendant consumed the alcohol; whether or
not he consumed it before the crime occurred or after the crime occurred."

The jury deliberated after receiving final instructions and hearing closing
arguments from counsel. It found the defendant guilty on all charges. The district judge
30
sentenced Green to a hard 50 for first-degree premeditated murder, 34 months for
aggravated burglary, and 19 months for arson. The district judge ordered that all
sentences run consecutive.

DISCUSSION

Refusal to Instruct on Voluntary Intoxication

This court analyzes appellate challenges to jury instructions in four steps:

"'"'(1) First, the appellate court should consider the reviewability of the issue
from both jurisdiction and preservation viewpoints, exercising an unlimited standard of
review; (2) next, the court should use an unlimited review to determine whether the
instruction was legally appropriate; (3) then, the court should determine whether there
was sufficient evidence, viewed in the light most favorable to the defendant or the
requesting party, that would have supported the instruction; and (4) finally, if the district
court erred, the appellate court must determine whether the error was harmless, utilizing
the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801
(2011), cert. denied [565 U.S. 1221] (2012).' [Citation omitted.]

"'"'Generally, a defendant is entitled to instructions on the law applicable to his or
her defense theory if there is sufficient evidence for a rational factfinder to find for the
defendant on that theory. [Citation omitted.] And if that defendant requests an instruction
at trial, the court must view the evidence in the light most favorable to the defendant.
[Citations omitted.]'

"'"We examine 'jury instructions as a whole, without focusing on any single
instruction, in order to determine whether they properly and fairly state the applicable law
or whether it is reasonable to conclude that they could have misled the jury.' [Citation
omitted.]" Hilt, 299 Kan. 184-85.' State v. Mattox, 305 Kan. 1015, 1020, 390 P.3d 514
(2017)." State v. Murrin, 309 Kan. 385, 391-92, 435 P.3d 1126 (2019).

31
 Because the defendant requested a voluntary intoxication instruction at trial, this
issue is preserved for review. State v. Perez-Medina, 310 Kan. 525, 533-34, 448 P.3d 446
(2019).

"To be legally appropriate, 'an instruction must always fairly and accurately state
the applicable law, and an instruction that does not do so would be legally infirm.'"
Murrin, 309 Kan. at 392.

The extent to which voluntary intoxication is a defense in Kansas is governed by
K.S.A. 2018 Supp. 21-5205(b), which states:

"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."

See also State v. Dominguez, 299 Kan. 567, 591-92, 328 P.3d 1094 (2014) (voluntary
intoxication valid defense when crime requires specific intent). The crime of
premeditated first-degree murder is a specific intent crime, and "voluntary intoxication
may be used as a valid defense." 299 Kan. at 591-92. A voluntary intoxication instruction
in this case would have been legally appropriate.

But this court has held that "simple consumption of drugs or alcohol is not enough
to support" voluntary intoxication—"[p]roof of impairment is also necessary." State v.
Davis, 306 Kan. 400, 414, 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. State v. Hernandez, 292 Kan. 598, 606-07, 257

32
 P.3d 767 (2011) (defendant's ability to recall his or her actions demonstrates faculties
intact)." Davis, 306 Kan. at 414-15.

See also State v. Kidd, 293 Kan. 591, 595-96, 265 P.3d 1165 (2011) (evidence defendant
consumed alcohol from a bottle, made "crazy" statements, may have been "'buzzed'"
insufficient to require voluntary intoxication instruction). Moreover, a reviewing court
"'will not infer impairment based on evidence of consumption alone.'" State v. Reed, 302
Kan. 390, 400, 352 P.3d 1043 (2015) (quoting Hernandez, 292 Kan. at 607). A loss of
memory or inability to remember events before or during the offense may establish the
inability to form intent, as can evidence 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.'" Reed, 302 Kan. at 400 (quoting State v. Betancourt, 299 Kan.
131, 141-42, 422 P.3d 353 [2014]).

In his brief to this court, the defendant focuses on Fred's testimony that the
defendant was drunk in the early morning of December 23 when he spoke to him by
telephone, as well as similar testimony from Cass. As the district judge noted, to the
extent that such evidence established consumption—or even impairment—it could not
establish it for the time when the crime was committed. It was evidence only for the
period after the crime.

The defendant also relies on his own statements to investigators that he had passed
out at home on the night of December 22 and that he passed out the next morning while
hunting. But these statements fail to support the necessary alcohol impairment for the
same reason that the testimony from Fred and Cass do: They do not deal with the
relevant time. Even if one credits the claim that the defendant passed out at home, as he
explained to law enforcement, he "woke up" and started driving around before ultimately
ending up near Wawrzynaik's house.

33
 Moreover, the defendant's own statements established that he had not lost the
ability to "exercise motor skills" at the time of the crime. See Betancourt, 299 Kan. at
142. He was able to drive, and he never claimed in his statements to law enforcement that
he had blacked out or could not remember a portion of the night. He consistently denied
going all the way up to Wawrzynaik's house, but ultimately there were no gaps in his
narrative of what happened from the time he left home that night until the time he passed
out while hunting—in other words, wherever the defendant was during that period, even
he did not claim to be so impaired that he could not form the necessary criminal intent.

Finally, the defendant also points to the district judge's allowance of K.S.A. 60-
455 evidence of his driving while under the influence of alcohol. As the State noted in
making its pretrial request to admit the evidence, its purpose was to establish that,
regardless of consumption evidence, the defendant was still able to drive and able to form
criminal intent.

We reject the defendant's argument that the district judge erred by refusing to give
a voluntary intoxication instruction. It was not factually appropriate because of a lack of
evidence of impairment that would prevent the formation of the necessary criminal intent.

Refusal to Instruct on Voluntary Manslaughter

Our standard of review for this issue is the same as that governing the defendant's
first appellate challenge. See Murrin, 309 Kan. at 391-92.

The defendant properly preserved this issue in the trial court by seeking the
instruction. See Perez-Medina, 310 Kan. at 533-34.

34
 This court has regularly acknowledged that lesser degrees of homicide qualify as
lesser included crimes of first-degree premeditated murder. State v. James, 309 Kan.
1280, 1298, 443 P.3d 1063 (2019).

"An instruction on a lesser included crime is legally appropriate. State v. Plummer, 295
Kan. 156, 161, 283 P.3d 202 (2012). And a lesser included crime includes a 'lesser degree
of the same crime.' K.S.A. 2017 Supp. 21-5109(b)(1). This court has recognized five
degrees of homicide. In descending magnitude, they are capital murder, first-degree
murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter.
State v. Carter, 305 Kan. 139, 161, 380 P.3d 189 (2016) (citing State v. Cheever, 295
Kan. 229, 258-59, 284 P.3d 1007 [2012]).' Pulliam, 308 Kan. at 1362." James, 309 Kan.
at 1298.

Thus voluntary manslaughter would have been a legally appropriate instruction in this
case.

The defendant argues that he was entitled to a voluntary manslaughter lesser
included instruction because the jury could have found that he knowingly killed
Wawrzynaik "upon a sudden quarrel or in the heat of passion" under K.S.A. 2018 Supp.
21-5404(a)(1). "Heat of passion" is defined as "'any intense or vehement emotional
excitement of the kind prompting violent and aggressive action, such as rage, anger,
hatred, furious resentment, fright, or terror,' based 'on impulse without reflection.'" State
v. Johnson, 304 Kan. 924, 932, 376 P.3d 70 (2016).

The defendant relies on the testimony of one jailhouse informant who mentioned
that the defendant's original intention in going to Wawrzynaik's house was to vandalize it
with spray paint. He argues that the "jury could have concluded that once [the defendant]
got there, 'because of the intoxication, drinking, the holidays, and the depression, that he
just snapped.'" But no witness testified that the defendant "snapped" when he reached

35
Wawrzynaik's house. The "snapped" scenario was part of defense counsel's argument in
support of the voluntary manslaughter instruction before the district court, but the judge
correctly perceived that the great weight of the evidence introduced by the State painted
an entirely different picture.

The accumulated evidence from the informants as well as numerous other
witnesses was that the defendant had been thinking about killing Wawrzynaik for some
time before the murder. Indeed, it is hard to imagine a more thorough or convincing case
being made to support first-degree premeditated murder by a jilted spouse. This was not a
case in which any reasonable juror could conclude that the defendant was motivated to
kill Wawrzynaik because of a sudden quarrel or heat of passion. There is zero evidence
that Wawrzynaik did anything as the defendant entered his house that could be
characterized as provocation. The only evidence is that he was sleeping.

The district judge correctly denied the requested voluntary manslaughter
instruction.

Constitutional Right to Jury Trial

The defendant also argues on appeal that the district judge's refusal to give his
requested jury instructions violated his constitutional right to a jury trial. He does not
specify whether he is relying on the United States Constitution or the Kansas
Constitution; nor does he state precisely which aspect of a jury trial he was deprived of. It
appears that he claims the district judge made legally impermissible factual
determinations in refusing to give the voluntary intoxication and voluntary manslaughter
instructions.

36
 The defendant is correct to the extent that he argues, "Prosecutions for violations
of state criminal statutes unquestionably implicate Section 5 [of the Kansas Constitution
Bill of Rights]. A defendant is entitled to 'have the truth of [the] charge determined by an
impartial jury.'" State v. Love, 305 Kan. 716, 736, 387 P.3d 820 (2017) (quoting In re
Rolfs, 30 Kan. 758, 763, 1 P. 523 [1883]).

But, that being said, the determination of whether there is any evidence making a
lesser included instruction or an instruction on an affirmative defense factually
appropriate is a question of law. Neither the district judge who makes such a decision in
the first instance nor any appellate judge or justice sitting in review of that decision
engages in weighing evidence or determining witness credibility. The job is merely to
detect the presence of any evidence to support the instruction sought; the jury takes it
from there.

In this particular case, we have already agreed with the district judge on the
nonexistence of evidence to make a voluntary intoxication or voluntary manslaughter
instruction factually appropriate. This also settles what we perceive to be the
constitutional question raised by the defendant under the banner of the right to jury trial.
A criminal defendant has this right, and, as part of the exercise of it, must be able to
present his or her theory of the case, supported by legally correct jury instructions. See
State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003) (defendant entitled to present
theory of defense; exclusion of evidence integral to theory violates defendant's
fundamental right to fair trial). But, without evidence in support of them, neither the
voluntary intoxication nor the voluntary manslaughter instructions would have been
legally correct because they were factually inappropriate. See Love, 305 Kan. at 736.

37
Constitutional Right to Due Process

The defendant argues for extension of the rule in Beck v. Alabama, 447 U.S. 625,
638, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), to support his challenge to his murder
conviction on due process grounds. He argues that the district judge's refusal to instruct
on voluntary manslaughter forced jurors who might have been reluctant to acquit him
outright and release him to choose to convict him of a crime more serious than the one he
committed.

We have seen this argument before in other cases. See, e.g., State v. Love, 305
Kan. 716, 729-30, 387 P.3d 820 (2017). And we have rejected the extension of the rule in
Beck, a capital case, to noncapital cases. Love, 305 Kan. at 734 ("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.'"); see State v. Becker, 311 Kan. 176, 186-87,
459 P.3d 173 (2020); State v. Timley, 311 Kan. __, 2020 WL 4555417 (No. 120,414,
filed August 7, 2020). The defendant nevertheless argues that this rejection erects an
"artificial barrier" to instruction on a state law lesser included offense that Beck
disapproved of.

We are not convinced by the defendant's argument. As the United States Supreme
Court later explained its holding in Beck, its primary concern had been

"that a jury convinced that the defendant had committed some violent crime but not
convinced that he was guilty of a capital crime might nonetheless vote for a capital
conviction if the only alternative was to set the defendant free with no punishment at all.
We explained:

38
 '[O]n the one hand, the unavailability of the third option of convicting on
a lesser included offense may encourage the jury to convict for an
impermissible reason—its belief that the defendant is guilty of some
serious crime and should be punished. On the other hand, the apparently
mandatory nature of the death penalty [in Alabama] may encourage it to
acquit for an equally impermissible reason—that, whatever his crime, the
defendant does not deserve death. . . . [T]hese two extraneous factors . . .
introduce a level of uncertainty and unreliability into the factfinding
process that cannot be tolerated in a capital case.' [447 U.S.] at 642.

"We repeatedly stressed the all-or-nothing nature of the decision with which the
jury was presented. See id., at 629, 630, 632, 634, 637, 642-643, and n. 19, 100 S. Ct., at
2385, 2386, 2387, 2388, 2389-2390, 2392-2393, and n. 19. As we later explained in
Spaziano v. Florida, 468 U.S. 447, 455, 104 S. Ct. 3154, 3159, 82 L.Ed.2d 340 (1984),
'[t]he absence of a lesser included offense instruction increases the risk that the jury will
convict . . . simply to avoid setting the defendant free. . . . The goal of the Beck rule, in
other words, is to eliminate the distortion of the factfinding process that is created when
the jury is forced into an all-or-nothing choice between capital murder and innocence.'
See also Hopper v. Evans, 456 U.S. 605, 609, 102 S. Ct. 2049, 2051-2052, 72 L. Ed. 2d
367 (1982). This central concern of Beck simply is not implicated in the present case, for
petitioner's jury was not faced with an all-or-nothing choice between the offense of
conviction (capital murder) and innocence." Schad v. Arizona, 501 U.S. 624, 646-47, 111
S. Ct. 2491, 115 L. Ed. 2d 555 (1991).

Until the United Supreme Court indicates otherwise, we are disinclined to extend
the Beck rule to noncapital cases.

Furthermore, in this case, the defendant's appellate argument ignores that his jury
was not faced with an all-or-nothing scenario on the first-degree premeditated murder
charge. His jury was given an instruction on the lesser included offense of intentional
second-degree murder. Had it been unconvinced by the mountain of premeditation
evidence presented in the State's case detailed above, it could have convicted the
39
defendant of another homicide offense that falls between first-degree premeditated
murder and voluntary manslaughter in gravity and possible punishment. We hold there
was no error under either Beck's letter or its spirit.

Admission of Videotaped Statements in Law Enforcement Interview

The defendant's next allegation of error in the district court has more substantive
merit than those discussed above. He asserts for the first time on appeal that the videotape
of his interview by KBI agents included the interviewers' impermissible negative
comments on his credibility and should have been redacted before being shown to the
jury at trial. He is correct on this point. See State v. Elnicki, 279 Kan. 47, Syl. ¶ 4, 105
P.3d 1222 (2005) (error for jury to be shown videotape in which law enforcement officer
comments on defendant's credibility).

The problem for the defendant arises from the words "for the first time on appeal."
The defense failed to object in the district court to the lack of redaction about which it
now complains. This means the issue was not preserved, and we may refuse to address its
merits on appeal under the contemporaneous objection rule codified in K.S.A. 60-404.

The defendant argues in his brief that we should apply an established exception to
overlook the preservation problem. In his view, this issue raises only a question of law
arising on proved or admitted facts and is finally determinative of the case, and
consideration of it is necessary to serve the ends of justice or to prevent denial of
fundamental rights. See State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005). He
also argues that we should reach the substance on this issue because of judicial economy;
in essence, dealing with the issue now will eliminate the need for the defendant's later
filing of a K.S.A. 60-1507 motion to reverse his convictions based on defense trial
counsel's constitutionally deficient performance.

40
 We are not convinced by any of these arguments for an established exception or a
judicial economy-based ruling. Even if we agree that the failure to redact the videotape to
remove the interviewers' comments on credibility was error, that error would be far from
finally dispositive of this case under the first preservation exception urged upon us by
appellate defense counsel. It also would be harmless under our state statutory standard.
See K.S.A. 2019 Supp. 60-261 ("court must disregard all errors and defects that do not
affect any party's substantial rights").

Likewise, because of our view on the harmlessness of any error, the second
preservation exception is inapplicable. The ends of justice and the defendant's
fundamental rights are not endangered by error that could have made no difference in the
outcome of his trial.

And, finally, because even ineffective representation by defense counsel cannot
lead to reversal of the defendant's convictions without prejudice under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and innumerable
Kansas decisions following it, see, e.g., State v. Moyer, 309 Kan. 268, 278-79, 434 P.3d
828 (2019), trial defense counsel's failure to object on this issue cannot support a later
K.S.A. 60-1507 motion likely to take up much of any court's time.

One last point bears mention. This case truly is a poster child for the
contemporaneous objection rule. The videotape of the defendant's statements to the KBI
agents was already redacted to remove the defendant's invocation of his right to have
counsel present with him and any material that came after it. That redaction was either
agreed upon by the prosecution and defense, or it was ordered by the district judge. Either
way, it prevented the necessity of raising that failure to redact as an issue on appeal. This
is precisely the way that the contemporaneous objection rule is supposed to work. It is
41
designed to give parties incentive to raise legal issues in the district court so that the
judge presiding over the case has an opportunity to hear from the parties, analyze the law,
and prevent error from infecting the process. Here, our law that one witness is not
permitted to comment on the credibility of another is far from new. See State v. Akins,
298 Kan. 592, Syl. ¶ 6, 315 P.3d 868 (2014) (determination of truthfulness of witness for
jury); State v. Drayton, 285 Kan. 689, 700, 175 P.3d 861 (2008) (witness may not express
opinion on credibility of another witness; determination of truthfulness of witness for
jury); State v. Plaskett, 271 Kan. 995, 1008-09, 27 P.3d 890 (2001) (error to allow
detective to express opinion on credibility of victim); State v. Jackson, 239 Kan. 463,
470, 721 P.2d 232 (1986) (error to allow two expert witnesses to express views on
reliability of statements by complaining witness). Our law that the prosecution cannot be
allowed to achieve the equivalent by exposing a jury to law enforcement agents' negative
comments about a defendant's credibility during a recorded interview also is not new. See
Elnicki, 279 Kan. 47, Syl. ¶ 4. The record in this case makes us confident that the parties
and the district judge in this case would have had no trouble preventing anyone from
having to address this issue today if the contemporaneous objection rule had been
observed. This confidence also makes us more likely to enforce the rule without
exception.

Refusal to Give Cautionary Instruction on Informant Testimony

The standard of review on this issue is the same as that governing the first two
issues discussed above.

This challenge was preserved by the defendant's counsel during the jury
instructions conference at trial.

Defendant seeks shelter under our rule that "ordinarily it is error to refuse to give a
cautionary instruction on the testimony of a paid informant or agent where such
42
testimony is substantially uncorroborated and is the main basis for defendant's
conviction." State v. Novotny, 252 Kan. 753, 760, 851 P.2d 365 (1993). But this shelter is
unavailable to him.

In Novotny, we held that failure to give such an instruction was not error or ground
for reversal when it was not requested and informant testimony had been substantially
corroborated. Novotny, 252 Kan. at 760.

In addition, in State v. Lowe, 276 Kan. 957, Syl. ¶ 5, 80 P.3d 1156 (2003), we held
that a district judge is not obligated to "give a cautionary instruction on informant
testimony absent evidence that a witness is acting as an agent for the State in procuring
evidence." See also State v. Ashley, 306 Kan. 642, 648, 396 P.3d 92 (2017) (declining
invitation to reconsider Lowe; informant cautionary instruction not required when
"information was passed to the witness at a time when the witness was not serving as an
agent of the State—that is to say, the witness had not been contacted by the State and was
not intentionally given the role of investigator").

Here, neither jailhouse informant was acting as an agent for the State when he first
received incriminating information from the defendant. In addition, the testimony of each
informant was corroborated by multiple witnesses and other evidence presented by the
State at trial. The district judge did not err in denying the cautionary instruction.

Cumulative Error

The defendant's last issue on appeal invokes the doctrine of cumulative error.
Cumulative trial errors may require reversal if, under the totality of the circumstances,
they substantially prejudiced the defendant and resulted in an unfair trial. But the doctrine
is inapplicable if there is no error or only a single error. See Love, 305 Kan. at 737.

43
 We have rejected each of the defendant's appellate challenges, although we saw
merit in one whose substance we did not reach because of lack of preservation and the
inapplicability of any exception to the contemporaneous objection rule. Under these
circumstances, the cumulative error doctrine cannot help the defendant.

CONCLUSION

We have thoroughly reviewed the record on appeal and examined each of
defendant Thad Christopher Green's issues on appeal. No error requires reversal. The
judgment of the district court is affirmed.

PATRICK D. MCANANY, Senior Judge, assigned.1

***

ROSEN, J., concurring: I agree with the majority's conclusions in this case and
nearly all of its analysis. I write separately only to make my position clear on issues
dealing with affirmative defense instructions.

The majority has concluded there was no evidence indicating Green was impaired
at the time of the crime and, consequently, a voluntary intoxication instruction was not
factually appropriate. I agree with this. However, I part with the majority's discussion on
this issue to the extent it implies that the presence of any evidence tending to support the

1
REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No.
118,366 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 Chief Justice Lawton R. Nuss.
44
defendant's affirmative defense theory will justify an instruction on that defense—no
matter how slight the evidence or how improbable the theory. The affirmative defense
statute directs trial judges to instruct on such defenses only when "competent evidence,"
or "that which could allow a rational fact finder to reasonably conclude that the defense
applies" is present. (Emphases added.) K.S.A. 2019 Supp. 21-5108(c). As I explained in
State v. Haygood, 308 Kan. 1387, 1410, 430 P.3d 11 (2018) (Rosen, J., concurring), the
language in this statute requires that the court act as a gatekeeper when offering
instructions by "mak[ing] some assessment of the strength of the evidence on which" an
affirmative defense assertion stands. While I agree there was no evidence of impairment
here, I disagree with any portion of the majority decision holding that the presence of any
evidence, however slight, mandates the district court to instruct and skip this test.

STEGALL, J., joins the foregoing concurring opinion.

45