State v. Stafford

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 120,481

STATE OF KANSAS,
Appellee,

v.

DONNELL STAFFORD,
Appellant.

SYLLABUS BY THE COURT

1.
When the facts demonstrate a criminal defendant could have formed premeditation
after an initial confrontation, but before the final blow, a premeditation instruction may
explain that premeditation does not have to be present before a fight, quarrel, or struggle
begins.

2.
Mere words cannot constitute sufficient provocation for a heat of passion
voluntary manslaughter instruction, even if those words solicited murder. "Mere" does
not bear on the gravity of the words, but on the fact that words alone are always
insufficient to justify a lesser included instruction for voluntary manslaughter.

3.
Hearsay exceptions are not relevant to the merits of a Confrontation Clause
challenge. Instead, a court must determine whether the challenged out-of-court statements
were testimonial in nature and whether the criminal defendant was deprived of the ability
to cross-examine beforehand.

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 Appeal from Sedgwick District Court; FAITH A.J. MAUGHAN, judge. Opinion filed December 23,
2020. Affirmed.

Kasper Schirer, of Kansas Appellate Defender Office, was on the brief for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.

The opinion of the court was delivered by

STEGALL, J.: Donnell Stafford directly appeals his premeditated first-degree
murder and two cruelty to animals convictions. Stafford alleges the district court erred
when it included additional language in his premeditation instruction, failed to instruct
the jury on heat of passion voluntary manslaughter, admitted allegedly impermissible
hearsay evidence, and claims cumulative error. Finding no error, we affirm the district
court.

FACTUAL AND PROCEDURAL BACKGROUND

Leuh Moore's body was found on April 8, 2018, in a dumpster behind two Wichita
businesses. The dumpster also contained a bloody McDonald's employee polo shirt and a
bloody black door mat draped over the body. Home security footage from the home
behind the businesses depicted a Jeep Grand Cherokee enter the alleyway between the
house and shops at approximately 4:33 a.m. A large male was seen in the footage
carrying Moore's body from the SUV to the dumpster, removing a black mat, taking his
shirt off, and placing those items in the dumpster. Someone found Moore's body later that
afternoon. An autopsy revealed fatal stab wounds to Moore's neck, evidence of
strangulation, sharp force injuries to Moore's head and neck, and incised wounds to
fingers on Moore's left hand.

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 Moore owned a 1998 Jeep Grand Cherokee. She had previously obtained
protection orders against Stafford. The protection from abuse orders alleged Stafford
strangled Moore, placed a knife to her throat, and threatened to kill her. Stafford worked
at McDonald's until the week or two before Moore's death.

In the front yard of Moore's duplex police found blood, a bloody women's shirt,
and blood on the front porch railing and front door. They observed a visible outline from
a missing doormat in front of the door. Clumps of hair dotted the living room floor and
blood was present throughout the living room and kitchen. Two pit bull dogs sat in
stacked cages, were covered in blood, and suffered stab wounds to their bodies. A third
pit bull roamed the house unharmed. The bedroom contained more blood and a cut
mattress with several visible handprints. A wooden-handled serrated blade knife lay on
the nightstand.

Investigators tracked Stafford to Nebraska, and then to Davenport, Iowa, using his
cell phone. Iowa authorities arrested Stafford at a motel with Moore's stolen Jeep Grand
Cherokee, which contained blood. A pawn shop receipt showed Stafford pawned a
television on April 8, 2018, for money shortly after Moore's death.

The Iowa intake officer asked Stafford if he was married. Stafford smirked,
paused, and asked the officer if he had his file. The officer replied he did not. Stafford
told the intake officer "he had killed his wife in Wichita, which is why he was under
arrest in Davenport" and added he is "usually a very laid-back guy" and "likes to read his
Bible," but "didn't know why he did it, he just snapped."

At trial, Moore's son, I.M., testified he woke up the night of April 7 to the dogs
fighting. Stafford told I.M. to go back to sleep, and I.M. did. Stafford later took I.M. to
I.M.'s grandmother's house, and as Stafford led I.M. from the house, I.M. saw a "lot of
blood." I.M. also described domestic violence between "Donterio," who I.M. identified as

3
Stafford, and Moore. Donterio is Stafford's middle name. I.M.'s grandmother explained
that Stafford brought I.M. over around 7:30 a.m. on April 8, 2018. Stafford told I.M.'s
grandmother he had to work and would pick I.M. up around 4:00 p.m., but never
returned.

Dr. Tiffany Warren, a forensic nurse, testified she met with Moore on May 23,
2017, after Stafford assaulted Moore. Dr. Warren testified Moore told her Stafford
slapped, choked, hit her, sat on top of her, and threatened to kill her on several occasions.
Moore passed out several times from being choked and Stafford used a jagged edged
knife during one of the altercations. Dr. Warren's testimony included direct quotes from
Moore.

The State admitted an email chain between Stafford and Moore from May 27,
2017, to June 20, 2017, while Stafford was in jail. Stafford and Moore argued about
money and the poor status of their marriage. Stafford also warned she was "'still going to
get [hers]'" and accused Moore of "sleeping around."

A jury convicted Stafford of first-degree murder and two counts of cruelty to
animals. See K.S.A. 2016 Supp. 21-5402(a)(1); K.S.A. 2016 Supp. 21-6412(a)(1), (b)(1).
The district court sentenced Stafford to a hard 50 sentence for the murder conviction and
two concurrent 12-month sentences for the animal cruelty convictions. Stafford directly
appeals.

DISCUSSION

Stafford raises four claims of error. He argues (1) the district court erred when it
expanded the standard premeditation PIK instruction; (2) the district court failed to
instruct the jury on heat of passion voluntary manslaughter; (3) the district court

4
impermissibly admitted hearsay evidence; and (4) cumulative error. Finding no error, we
affirm.

The district court did not err when it included additional language in the premeditation
instruction.

Stafford claims the district court erred when it included several additional
paragraphs in the standard premeditation PIK instruction. The jury received jury
instruction No. 9, which provided the elements for first-degree murder and defined
premeditation, including the italicized additional language:

"Premeditation means to have thought the matter over beforehand, in other
words, to have formed the design or intent to kill before the act. Although there is no
specific time period required for premeditation, the concept of premeditation requires
more than the instantaneous intentional act of taking another's life.

"Premeditation is the process of thinking about a proposed killing before
engaging in homicidal conduct.

"Premeditation does not have to be present before a fight, quarrel, or struggle
begins. Premeditation is the time of reflection or deliberation. Premeditation does not
necessarily mean that an act is planned, contrived or schemed beforehand.

"Premeditation can be inferred from other circumstances including: (1) the
nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before
and after the killing, (4) threats and declarations of the defendant before and during the
occurrence, or (5) dealing of lethal blows after the deceased was felled and rendered
helpless.

"Premeditation can occur during the middle of a violent episode, struggle or
fight." (Emphasis added.)

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 Stafford recognizes this instruction is cut straight from State v. Bernhardt, 304
Kan. 460, 464-65, 472, 372 P.3d 1161 (2016), in which we upheld the same language.
Stafford distinguishes Bernhardt by pointing out that the Bernhardt victim died from a
series of blows inflicted over a long time period—warranting a clarification in the PIK.
Stafford argues a single injury—a knife wound to the neck—caused Moore's death, so
clarification was unnecessary.

Stafford believes this court should adopt Chief Justice Luckert's or Justice
Johnson's dissenting opinion in Bernhardt arguing the paragraphs are confusing and
therefore legally inappropriate. See 304 Kan. at 483-89 (Johnson, J., dissenting); 304
Kan. at 489 (Luckert, J., dissenting). He concludes the State cannot show the error was
harmless because trial evidence suggested Moore's killing was not premeditated. Stafford
directs us to his law enforcement interview where he said "he just snapped."

"When analyzing jury instruction issues, we follow a three-step process:
'(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal;
(2) considering the merits of the claim to determine whether error occurred below; and
(3) assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless.'" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

Whether a party has preserved a jury instruction issue affects our reversibility
inquiry at the third step. 307 Kan. at 317; see K.S.A. 2019 Supp. 22-3414(3) ("No party
may assign as error the giving or failure to give an instruction . . . unless the party objects
thereto before the jury retires to consider its verdict . . . unless the instruction or the
failure to give an instruction is clearly erroneous."). At the second step, we consider
whether the instruction was legally and factually appropriate. 307 Kan. at 318. Appellate
courts use unlimited review to determine whether an instruction was legally appropriate.
State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70 (2016). Courts must determine whether
there was sufficient evidence, viewed in the light most favorable to the defendant or the
6
requesting party, that would have supported the instruction. State v. Williams, 303 Kan.
585, 598-99, 363 P.3d 1101 (2016). We do not consider "whether . . . an instruction
would have been factually appropriate" if the instruction is not legally appropriate. State
v. Broxton, 311 Kan. 357, 363, 461 P.3d 54 (2020) (refusing to reach factual
appropriateness after finding an instruction was not legally appropriate).

Stafford objected to the instruction below, so any error is reversible if there is a
reasonable probability the error affected the outcome of the trial in light of the entire
record. State v. Louis, 305 Kan. 453, 457-58, 384 P.3d 1 (2016).

We hold the instruction was legally appropriate. As Stafford admits, the
instruction's language is pulled straight from Bernhardt. The Bernhardt court approved
the additional verbiage as "correct statements of Kansas law." Bernhardt, 304 Kan. at
472; see also State v. Stanley, 312 Kan. ___ (No. 120,310, this day decided), slip op. at 9-
11 (discussing legal appropriateness of the Bernhardt instruction in detail). Moreover, we
have reaffirmed the Bernhardt jury instruction language. See State v. Wright, 307 Kan.
449, 459, 410 P.3d 893 (2018) ("Our decision on the merits of this claim is controlled by
our recent decision in . . . Bernhardt . . . . As [defense counsel] conceded, the language is
a correct statement of the law. It was not error for the trial judge to include it in the
premeditation instruction." [Emphasis added.]). The only question remaining is factual
appropriateness.

We find the additional language was factually appropriate. Stafford emphasizes a
single stab wound to Moore's neck was the cause of death. He contrasts this with the
multiple blows received by the Bernhardt victim, where each contributed to that victim's
death. This somewhat mischaracterizes the Bernhardt analysis. The Bernhardt court's
concern was not the presence or absence of significant physical wounds, but the presence
or absence of "'a fight, quarrel, or struggle.'" Bernhardt, 304 Kan. at 472.

7
 Under Stafford's reading, so long as the criminal actor only struck a single fatal
blow, a Bernhardt instruction would never be appropriate. This is clearly not the result
intended by Bernhardt. Rather, we must ask whether there exists "a possibility of jury
confusion on when premeditation can or cannot occur." 304 Kan. at 470. The lynchpin of
Bernhardt's analysis is whether premeditation "could form during or after an initial
altercation." 304 Kan. at 472.

Potential for such confusion arises when the facts demonstrate Stafford could have
formed premeditation after the initial confrontation, but before the fatal blow. See
Bernhardt, 304 Kan. at 472 ("The instruction correctly informed the jury that Bernhardt
did not have to premeditate Kostner's murder before pulling her out of the car and
beginning to kick her.").

The facts here demonstrate jury confusion was likely. First, the physical evidence
suggested a protracted struggle between Moore and Stafford spanning Moore's duplex
and the front yard. Bloody clothing was recovered outside and blood was found in the
front yard, on the front porch, on the porch railing, and on the front door. Inside, hair and
blood was scattered throughout the living room and blood was found all over the kitchen.
The two wounded pit bulls suggested at some point during the encounter, the dogs
intervened on Moore's behalf. Moore's bedroom was covered in blood and cut marks
were found on the mattress and mattress pad.

Moore's body also showed many injuries, despite Stafford's focus on the single
fatal neck wound. Although a single stab wound caused Moore's death, the autopsy
revealed she suffered several stab wounds to the neck. Further, there was evidence of
strangulation, sharp force injuries to Moore's head and neck, defensive wounds on
Moore's left hand fingers, and her legs bore "visible injuries" and many lacerations.

8
 The physical evidence suggests a significant struggle lasting a substantial period
of time and alone is sufficient to cause a juror to wonder what Kansas law has to say
about the temporal aspects of premeditation. The instruction was factually appropriate
and the district court did not err.

The district court did not err when it failed to instruct the jury on heat of passion
voluntary manslaughter.

Stafford requested a heat of passion voluntary manslaughter instruction in his
proposed instructions and at the jury instruction conference. The district court denied this
request as not factually appropriate. Stafford alleges reversible error, claiming there are
sufficient facts to require such an instruction. Stafford points to his taped interview where
he told detectives he "snapped" after overhearing Moore on the phone with a hitman. He
argues the jury could have concluded he caught Moore soliciting his murder, and this was
sufficient provocation for a heat of passion voluntary manslaughter instruction.

We apply the same three-step framework previously discussed. See McLinn, 307
Kan. at 317-18 (describing a three-step analysis: [1] preservation, [2] merits—including
legal and factual appropriateness, and [3] reversibility).

The State agrees a voluntary manslaughter instruction would have been legally
appropriate because "[v]oluntary manslaughter is a lesser included offense of first-degree
premeditated murder." See Bernhardt, 304 Kan. at 475. We proceed to factual
appropriateness.

For an instruction to be factually appropriate, "'there must have been evidence that
would reasonably justify a conviction of the lesser included crime.'" 304 Kan. at 375
(quoting State v. Story, 300 Kan. 702, 710, 334 P.3d 297 [2014]). This evidence must be

9
borne out in the record, as this court does "not 'speculate about hypothetical scenarios.'"
Story, 300 Kan. at 710 (quoting State v. Wade, 295 Kan. 916, 925, 287 P.3d 237 [2012]).

K.S.A. 2019 Supp. 21-5404(a)(1) defines heat of passion voluntary manslaughter
as "knowingly killing a human being committed . . . [u]pon a sudden quarrel or in the
heat of passion." The corresponding PIK instruction explains "'[h]eat of passion' means
any intense or vehement emotional excitement which was spontaneously provoked from
circumstances. The emotional state of mind must be of such degree as would cause an
ordinary person to act on impulse without reflection." PIK Crim. 4th 54.170 (2019
Supp.).

Again, Bernhardt is instructive.

"'"The key elements of voluntary manslaughter under K.S.A. 21-3403 are an
intentional killing and legally sufficient provocation. When reviewing whether
provocation was legally sufficient, an objective test is used. 'Heat of passion' has been
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.' The provocation "'must be sufficient to cause an
ordinary man to lose control of his actions and his reason.'"' [Citations omitted.]

....

"'"[I]n order to reduce a homicide from murder to voluntary manslaughter, there
must be an adequate provocation that deprives a reasonable person of self-control and
causes that person to act out of passion rather than reason. Mere words or gestures,
however offensive, do not constitute legally sufficient provocation for a finding of
voluntary manslaughter."'" 304 Kan. at 475-76 (quoting State v. Hayes, 299 Kan. 861,
864-66, 327 P.3d 414 [2014]).

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 Further, the Bernhardt court explained "[a] sudden quarrel can be one form of heat
of passion" and continued that an unforeseen dispute can constitute sufficient provocation
for a heat of passion voluntary manslaughter instruction. 304 Kan. at 476 ("'The hallmark
of heat of passion is taking action upon impulse without reflection.'") (quoting State v.
Hilt, 299 Kan. 176, 194, 322 P.3d 367 [2014]).

Bernhardt argued his victim's slapping him during a dispute "was objectively
sufficient provocation to warrant a voluntary manslaughter instruction." Bernhardt, 304
Kan. at 476. We analyzed Bernhardt's case to see if the provocation was objectively
sufficient:

"The evidence in this case—even from Bernhardt's own mouth—showed that he
and Kostner began arguing while they were at the bar, and the argument continued during
their car ride home. During that ride, Kostner slapped Bernhardt, and, at that point, he
stopped, pulled her out of the car, and kicked her repeatedly. He then threw Kostner into
the backseat of the car and began driving. After hearing Kostner's 'garbled' breathing,
Bernhardt stopped the car again, put Kostner in the trunk, and continued driving until he
stopped a third time and abandoned Kostner in a roadside ditch. He believed Kostner was
still alive at the time." 304 Kan. at 476-77.

We characterized Bernhardt's request for a heat of passion voluntary manslaughter
instruction as "problematic." 304 Kan. at 477. First, the initial argument was not
sufficient provocation because mere words cannot constitute sufficient provocation. 304
Kan. at 477. Second, Bernhardt agreed that arguments akin to the one directly preceding
Kostner's death were common between the pair—undercutting his "sudden" quarrel
claim. 304 Kan. at 477. Third, even though Kostner slapped Bernhardt, "the slap occurred
during their ongoing argument and 'mere evidence of an altercation between parties does
not alone support finding sufficient provocation.' See State v. Northcutt, 290 Kan. 224,
234, 224 P.3d 564 (2010)." Bernhardt, 304 Kan. at 477. We held the instruction was not
factually appropriate. 304 Kan. at 477.

11
 We considered a similar claim in State v. Johnson, 290 Kan. 1038, 236 P.3d 517
(2010), and arrived at the same place. Of note, the Johnson record showed Johnson and
his "victim had been discussing their situation and relationship all day." 290 Kan. at
1044. Because the quarrel was an all-day affair, it could not, by the plain meaning of the
word, be "sudden." 290 Kan. at 1046. Proof of this long, low simmer included the fact
Johnson already threw his wife's "'clothes out into the yard'" and "'told her son that she
was leaving because she was cheating.'" 290 Kan. at 1046.

The Johnson court contrasted the lengthy and protracted disagreement in Johnson's
case with the quarrel in State v. Graham, 275 Kan. 831, 69 P.3d 563 (2003). Johnson,
290 Kan. at 1045. Unlike Johnson's feud, Graham's facts warranted a heat of passion
voluntary manslaughter instruction. 290 Kan. at 1045. The Johnson court summarized:

"In Graham, it appears that Graham's wife let it be known throughout the day in question
that she was angry with Graham. Later that day, Graham ordered her into his truck, but
she refused. Graham threatened her, and the victim, Crow, intervened. Graham and Crow
then had an angry exchange and Graham drove off. Sometime later, Graham returned and
approached Crow, cursing and saying he was going to kill him. They got into a physical
altercation, resulting in Crow being stabbed. The actual quarrel that immediately led to
the murder in Graham did occur quite suddenly, and the stabbing occurred during the
physical altercation that immediately followed the sudden quarrel. The Graham court
noted that . . . 'there was some evidence of "heat of passion" or "sudden quarrel." Thus,
. . . the defendant was entitled to have the jury consider such evidence during its
consideration of the elements of attempted second-degree murder.'" (Emphasis added.)
290 Kan. at 1045.

Relying on Bernhardt, Johnson, and Graham, a heat of passion voluntary
manslaughter instruction was not factually appropriate in this case. The record does not
provide "'evidence that would reasonably justify a conviction of the lesser included
crime.'" See Bernhardt, 304 Kan. at 475. Foremost, in the videotaped interview, Stafford
12
claims he witnessed Moore plotting with a hitman for only a brief moment and again
briefly when he re-summarizes the events. We find this brief mention insufficient for the
burden required for the heat of passion instruction and akin to the "'hypothetical
scenarios'" warned of by the Story court. See Story, 300 Kan. at 710.

Further, mere words—even if those words solicited murder—cannot constitute
sufficient provocation. See Bernhardt, 304 Kan. at 477. Stafford argues these mere words
provoked him to kill Moore:

"Mr. Stafford told them that he had been arguing with Moore and left the house to cool
down. When he returned, Mr. Stafford heard Moore on the phone, arranging to have
another man kill him. . . . At that point, Mr. Stafford 'lost it' and 'snapped.' . . . He did not
appreciate the gravity of his actions until the fatal wound had already been inflicted."

The State summarizes this well—"To be certain, the term 'mere' bears not on the
gravity of the words themselves; rather, it means that words alone, absent more, are
always insufficient to justify a lesser included instruction for voluntary manslaughter."
This alone defeats Stafford's claim. See Bernhardt, 304 Kan. at 477.

Comparing Stafford's case to the altercations in Bernhardt, Johnson, and Graham
strengthens this conclusion. Much like Bernhardt, Stafford focuses on a single tree in a
much larger forest to give the illusion the quarrel between he and Moore suddenly sprung
up when he allegedly heard Moore on the phone with a hitman. But, this is the same
maneuver contemplated by Bernhardt, who focused on a single slap during an argument
that spanned a bar visit and a lengthy car ride home. See Bernhardt, 304 Kan. at 476-77.
Stafford explained in his interview he and Moore argued for a significant period of time,
including time for Stafford to leave the house for a walk and later return to continue the
argument. This clearly was not a quarrel that suddenly sprang up. See Bernhardt, 304

13
Kan. at 477; see also Johnson, 290 Kan. at 1044 (Johnson and his "victim had been
discussing their situation and relationship all day.").

Stafford only mentions the hitman phone call in passing without any further
elaboration. Because mere words cannot constitute sufficient provocation for a voluntary
manslaughter instruction and because the record shows the quarrel between Stafford and
Moore was long and protracted and did not suddenly arise, a heat of passion voluntary
manslaughter instruction was not factually appropriate. Therefore, the district court did
not err when it denied Stafford the instruction.

Dr. Warren's testimony did not violate the Confrontation Clause.

Next, Stafford argues Dr. Warren's primary motivation was to collect evidence for
Stafford's later prosecution, and not to diagnose or provide Moore medical treatment. If
so, Stafford alleges Moore's direct quotes were testimonial and violated the Confrontation
Clause.

The Confrontation Clause's protections apply in both state and federal
prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 13 L. Ed. 2d 923
(1965). The Kansas Constitution further provides a criminal defendant the right to "meet
the witness face to face." Kan. Const. Bill of Rights, § 10. Stafford's argument is "subject
to a de novo standard of review because he challenges the legal basis of the trial court's
admission of evidence, specifically that the evidence was admitted in violation of the
Confrontation Clause of the Sixth Amendment to the United States Constitution." State v.
Miller, 293 Kan. 535, 555, 264 P.3d 461 (2011) (citing State v. Dukes, 290 Kan. 485,
487, 231 P.3d 558 [2010]).

In Miller, we explained the implications of Crawford v. Washington, 541 U.S. 36,
68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004):

14
"Crawford held a witness' testimonial statements against a defendant are inadmissible
unless the witness appears at trial or, if the witness is unavailable to testify at trial, the
defendant had a prior opportunity for cross-examination. If the statements are
nontestimonial, the Confrontation Clause guarantees are not implicated. Consequently,
post-Crawford, the threshold question in any Confrontation Clause analysis is whether
the hearsay statement at issue is testimonial in nature. [Citations omitted.]" Miller, 293
Kan. at 556-57.

We established a four-factor test to determine whether statements are testimonial:

"'(1) Would an objective witness reasonably believe such a statement would later be
available for use in the prosecution of a crime?

"'(2) Was the statement made to a law enforcement officer or to another government
official?

"'(3) Was proof of facts potentially relevant to a later prosecution of a crime the primary
purpose of the interview when viewed from an objective totality of the circumstances,
including circumstances of whether

(a) the declarant was speaking about events as they were actually happening,
instead of describing past events;

(b) the statement was made while the declarant was in immediate danger, i.e.,
during an ongoing emergency;

(c) the statement was made in order to resolve an emergency or simply to learn
what had happened in the past; and

(d) the interview was part of a governmental investigation; and

15
 "'(4) Was the level of formality of the statement sufficient to make it inherently
testimonial; e.g., was the statement made in response to questions, was the statement
recorded, was the declarant removed from third parties, or was the interview conducted in
a formal setting such as in a governmental building?'" 293 Kan. at 559 (quoting State v.
Brown, 285 Kan. 261, 291, 173 P.3d 612 [2007]).

"Testimonial" at least "'applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police interrogations,'" but
determining if statements were testimonial is often fact-intensive. See Miller, 293 Kan.
557-58 (quoting Crawford, 541 U.S. at 68.)

We momentarily address the State's claim Moore's statements could be saved by a
number of hearsay exceptions. In its brief, the State emphasizes Stafford failed to
challenge the district court's conclusion Moore's statements were admissible under K.S.A.
2019 Supp. 60-460(1)(1), (1)(2), and (d)(3)—the exceptions for existing state of mind,
statements made for medical diagnosis, and contemporaneous statements, respectively.

This is true—Stafford does not challenge the admissibility of Moore's statements
through Dr. Warren under any of those hearsay exceptions. But the operative question
before us is not whether Moore's statements can be saved with statutory hearsay
exceptions. We must ask whether the statements are testimonial in nature. See Miller, 293
Kan. at 557 ("Nevertheless, the fact the evidence may be admissible under a hearsay
exception does not cure the confrontation problem if N.A.'s statements made to the
SANE are found to be testimonial."). The State may be correct these statements would be
admissible under several hearsay exceptions, but Stafford's claim may still ultimately
prevail if the statements were testimonial in nature, and he was deprived the ability to
cross-examine beforehand.

In Miller, we explained "statements made for the sole purpose of medical
treatment, regardless of the employer of the medical professional to whom the statements
16
are made, are not testimonial." (Emphasis added.) 293 Kan. at 575-76. To determine
whether a questioner solely pursued medical treatment we should ask "whether the
interrogator is an agent of law enforcement charged with gathering information for
purposes of trial" and examine the specific questions and responses because some
questions could be interpreted as serving either a medical function or a law enforcement
function, or both. 293 Kan. at 576-77. We discussed several helpful factors—including
the witness' consent; whether the medical professional followed evidence-collection
protocols; whether the witness or law enforcement requested the examination; and
whether the witness requested information to not be shared with law enforcement. 293
Kan. at 577-78.

Stafford argues Dr. Warren acted as a state agent because she recorded Moore's
statements and took photographs—actions he calls traditional investigatory tools to serve
law enforcement functions. We disagree. In a pretrial motion hearing, Dr. Warren
testified her employer was Via Christi Hospital in Wichita and the record is silent if any
police were present during Moore's interview with Dr. Warren. Dr. Warren did not testify
she collected evidence, but instead offered "comprehensive care" to "sexual assault,
domestic violence, child abuse, [and] human trafficking" victims. Dr. Warren explained
she took Moore's history—"[f]or the purpose of diagnoses, treating injuries, and assault
related issues" and helped formulate a future safety plan. Dr. Warren said the safety plan
was "part of [Moore's] treatment." At trial, Dr. Warren explained she informs her patients
they do not have to talk with her and she will not interview them without their consent.

Dr. Warren never indicated she used KBI forms, or "collected evidence" in any
capacity—factors important to the Miller court. See 293 Kan. at 578. Her pretrial motion
hearing testimony indicated she believed her only role was to provide Moore with an
appropriate medical history for a "holistic" medical approach and to equip Moore with
tools she needed to be safe in the future. On these facts, we hold Dr. Warren was not a
state agent.

17
 So what was the primary purpose of the interview? See 293 Kan. at 580.
According to Stafford, Dr. Warren's primary purpose was evidence collection. He again
points to the photographs taken during the interview and suggests Moore's medical
treatment ended before Dr. Warren's interview began. We don't agree.

The record certainly suggests a medical purpose for Moore's examination. See 293
Kan. at 580-81. Moore sustained injuries from Stafford's attack and Moore received
medical evaluation and treatment for those injuries. See 293 Kan. at 581-82. The injuries
Moore sustained during the first attack were extensive—Moore told Dr. Warren Stafford
slapped, choked, hit, and sat on top of her. Moore blacked out from a lack of oxygen and
blood flow to her brain. Stafford squeezed Moore's throat so tightly, her ability to breathe
and swallow was restricted. Stafford grabbed Moore by the hair, threw her to the floor,
and punched her on the head and chest. Moore certainly "suffered injuries from the
attack." See 293 Kan. at 581. Dr. Warren described her role as providing treatment and
comprehensive care to domestic violence victims and to help create victim safety plans.

Viewing this testimony objectively, we hold "there is evidence . . . that suggests a
medical purpose to the examination." See 293 Kan. at 581. Moore's statements made
through Dr. Warren were not testimonial and did not implicate the Confrontation Clause.
We find no error.

Cumulative error did not deny Stafford a fair trial.

Stafford claims cumulative error denied him a fair trial. Because we find no error,
the cumulative error doctrine does not apply. State v. Marshall, 303 Kan. 438, 451, 362
P.3d 587 (2015); see also State v. Blansett, 309 Kan. 401, 402, 435 P.3d 1136 (2019)
(explaining that under the cumulative error doctrine, the court must identify "multiple
errors to accumulate").

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 Affirmed.

BEIER, J., not participating.
MICHAEL E. WARD, Senior Judge, assigned.1

***

LUCKERT, C.J., dissenting: I dissent because I would hold the confusing and
contradictory jury instruction No. 9, which defined premeditation, could have misled the
jury. Specifically, the instruction could have caused the jury to understand that Donnell
Stafford needed to have thought only about striking Leuh Moore with a knife before he
did so, not that he needed to have formed an intent to kill her. Given this mistaken
understanding, a reasonable probability exists that the erroneous instruction affected the
outcome of Stafford's trial given the entire record.

My dissent stems from the erroneous wording in the premeditation instruction—
not with a disagreement as to the majority's holding that Stafford could have formed
premeditation after his confrontation with Moore began but before he struck the fatal
blow. A reasonable jury could have relied on Stafford's testimony and concluded he at
first intended to commit domestic battery without inflicting death—much as he had on
prior occasions. But a reasonable jury could have also concluded a prolonged fight
occurred during which violence escalated, anger grew, and Stafford's intent to cause

1
REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,481
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.

19
bodily injury short of death morphed into a design to kill that he deliberated—perhaps
between assaults on Moore—before carrying out that intent.

I dissent because the instruction did not clearly explain the concept that
premeditation could occur after the fight started. Instead, as I said in another case
analyzing the same instruction, the "instruction was so contradictory and misleading that
a lay juror could not have clearly understood premeditation." State v. Bernhardt, 304
Kan. 460, 489, 372 P.3d 1161 (2016) (Luckert, J., dissenting). The result is an erroneous
instruction. See State v. Horton, 300 Kan. 477, 491, 331 P.3d 752 (2014) (citing State v.
Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 [2009]) (jury instructions must "properly
and fairly state[] the law as applied to the facts of the case and . . . not have reasonably
misled the jury").

Again, jury instruction No. 9 stated:

"Premeditation means to have thought the matter over beforehand, in other
words, to have formed the design or intent to kill before the act. Although there is no
specific time period required for premeditation, the concept of premeditation requires
more than the instantaneous intentional act of taking another's life.

"Premeditation is the process of thinking about a proposed killing before
engaging in homicidal conduct.

"Premeditation does not have to be present before a fight, quarrel, or struggle
begins. Premeditation is the time of reflection or deliberation. Premeditation does not
necessarily mean that an act is planned, contrived or schemed beforehand.

"Premeditation can be inferred from other circumstances including: (1) the
nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before
and after the killing, (4) threats and declarations of the defendant before and during the

20
 occurrence, or (5) dealing of lethal blows after the deceased was felled and rendered
helpless.

"Premeditation can occur during the middle of a violent episode, struggle or
fight."

It is true that the instruction derives from statements in decisions of this court. But
the instruction removes these statements from the context in which they were first made,
and the statements often do not come with the explanations or qualifications found in the
original text. Incorrect statements of law result. Plus, some of these statements contradict
other portions of the instruction that give a full explanation. The instruction is thus
misleading and confusing. Parsing the instruction helps explain why.

The first paragraph in the Bernhardt/Stafford premeditation jury instruction
follows PIK Crim. 4th 54.150(d), Kansas' standard jury instruction defining
premeditation. This pattern instruction—and thus this first paragraph of the
Bernhardt/Stafford premeditation jury instruction—correctly explains that premeditation
(1) means to have formed a design or intent to kill before the act and (2) requires
something more "than the instantaneous, intentional act of taking another's life." So far,
so good. The error arises because the rest of the instruction restates the first of these two
points in ways that blurs or contradicts the meaning.

Compare two statements that make the first point of explaining that premeditation
means to have formed a design or intent to kill before the act. The instruction's first
paragraph makes this point by saying: "Premeditation means to have thought the matter
over beforehand, in other words, to have formed the design or intent to kill before the
act." The second paragraph of the Bernhardt/Stafford instruction essentially repeats the
first portion of this sentence: "Premeditation is the process of thinking about a proposed
killing before engaging in homicidal conduct." But it leaves out the critical requirement

21
that this process of thinking about the killing must lead to the formation of a design or
intent to kill.

Because the instruction states the principle one way in the first paragraph and
another way in the second, a reasonable jury could conclude there are two paths for
finding premeditation—the first where Stafford formed the intent to kill and the second
where he thought about killing but rejected it. The second statement, without the critical
requirement that the defendant must form a design or intent to kill, could lead a
reasonable jury to conclude Stafford committed first-degree murder even though, as he
testified, he did not intend to kill Moore. The instruction was thus erroneous.

To add to the confusion, the third paragraph conflicts with the statement in the
first paragraph. It informed the jury: "Premeditation does not necessarily mean that an
act is planned, contrived or schemed beforehand." Compare this sentence with the first
sentence of the instruction that defined premeditation as "to have formed the design or
intent to kill before the act." How does a reasonable juror not well-versed in the law of
premeditation reconcile a requirement that a defendant form a design to kill before
committing the act with the statement that premeditation does not necessarily mean the
act was planned, contrived, or schemed? As Justice Johnson stated in his Bernhardt
dissent: "How does one reflect or deliberate about killing the victim without planning,
contriving, or scheming to kill the victim? If the defendant was not planning, contriving,
or scheming to kill the victim, he or she was not premeditating the murder." Bernhardt,
304 Kan. at 486 (Johnson, J., dissenting).

If given context or explained, one can reconcile the two statements. The reference
to "the act" in the first sentence refers to the killing—that is, to deliberating and reflecting
on an intent to cause death. But the sentence in the third paragraph seems to refer to the
type of act that leads to the death. At least that is the best way I can reconcile the two and
that conclusion reflects distinctions in our caselaw. See State v. Deal, 293 Kan. 872, 885,

22
269 P.3d 1282 (2012) (discussing distinction between intent to commit a specific act and
intent to cause a type of injury, such as death or great bodily harm). With an explanation
that a design or intent to kill is required but that the precise mechanism of death does not
have to be plotted beforehand, both statements can be correct. But the lack of context or
explanation for the statement in the third paragraph could have misled Stafford's jury.

Likewise, the lack of context makes the fourth paragraph of the Bernhardt/Stafford
instruction misleading. That paragraph states:

"Premeditation can be inferred from other circumstances including: (1) the
nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before
and after the killing, (4) threats and declarations of the defendant before and during the
occurrence, or (5) dealing of lethal blows after the deceased was felled and rendered
helpless.

Usually judges surround this instruction with a contextual explanation as shown in State
v. Wright, 307 Kan. 449, 459, 410 P.3d 893 (2018), a case the majority cites to support its
holding. The additional explanation more clearly conveyed that the purpose of the
instruction was not to define premeditation but to explain circumstances a jury could
consider when evaluating if the State had proved premeditation. 307 Kan. at 455-56.

Here, the judge placed the five circumstances in the middle of an instruction that
defined premeditation. While the language was sufficient to explain to one with a law
degree the limited purpose of the circumstances, the purpose would not have been
apparent to the average reasonable juror. The instruction thus could have misled the jury
to believe that the circumstances defined premeditation as opposed to describing the type
of evidence that could show whether Stafford had formed a design or intent to kill Moore
before he stabbed her in the neck and caused her death. In other words, given the fifth
circumstance, the jury could have believed Stafford deliberated the intent to kill Moore
after he stabbed her in the neck.
23
 For these reasons, I would hold that the premeditation instruction was erroneous.

Having reached that conclusion, I must determine whether this error required
reversal. Stafford objected to the instruction, which means the error is reversible if there
is a reasonable probability the error affected the outcome of the trial given the entire
record. State v. Louis, 305 Kan. 453, 457-58, 384 P.3d 1 (2016); see K.S.A. 2019 Supp.
22-3414(3) ("No party may assign as error the giving or failure to give an instruction . . .
unless the party objects thereto before the jury retires to consider its verdict . . . unless the
instruction or the failure to give an instruction is clearly erroneous."). I conclude this
reasonable probability exists.

When Stafford first discussed the incident with law enforcement, he said that "he
just snapped." He later told detectives that he went into a rage when he heard his wife on
the phone plotting to have him killed. In other words, his testimony suggested he acted
impulsively and without reflection. While I recognize there is substantial evidence
supporting premeditation, a reasonable probability the error affected the outcome of the
trial arises because of the second paragraph in the instruction. There is a reasonable
probability that this portion of the instruction led the jury to conclude Stafford committed
first-degree murder based on a premeditated intent to stab Moore, even though, as he
testified, he did not intend to kill her. The lack of explanation and context accompanying
other statements in the instruction would not have countered this misstatement but only
added to the confusing morass of words the jury had to fight through.

Stafford is entitled to a new trial in which a clear instruction guides the jury.

24