State v. Harris

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 122,348

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER C. HARRIS,
Appellant.

SYLLABUS BY THE COURT

1.
K.S.A. 22-3423(1)(c) permits a trial court to declare a mistrial if there was
prejudicial conduct inside or outside the courtroom that makes it impossible to proceed
without injustice to a defendant or the prosecution. To follow the statute, the court
engages in a two-step analysis: (a) decide whether some fundamental failure occurred in
the proceeding, and (b) if so, determine whether it is possible to continue without
injustice. This second step requires assessing whether the prejudicial conduct's damaging
effect can be removed or mitigated through jury admonition or instruction. If that is not
possible and the degree of prejudice would result in injustice, a mistrial is necessary.

2.
Under K.S.A. 22-3501(1), a court may grant a defendant's motion for new trial if
required in the interest of justice.

3.
When based on a claimed trial error adversely affecting a defendant's fair trial
right, a motion for mistrial under K.S.A. 22-3423(1)(c) and a motion for new trial under
K.S.A. 22-3501(1) essentially ask the same question, i.e., whether the challenged event
1
deprived the defendant of a fair trial. An appellate court applies the same abuse of
discretion standard when reviewing a district court's answer to that question.

4.
An appellate court reviews an instructional error claim in multiple steps. First, the
court decides whether the issue was properly preserved below. Second, it considers
whether the instruction was legally and factually appropriate. In doing so, the court
exercises unlimited review of the entire record and views the evidence in the light most
favorable to the requesting party. And when the reviewing court finds error, it determines
whether that error is reversible.

Appeal from Shawnee District Court; CHERYL A. RIOS, judge. Opinion filed May 14, 2021.
Affirmed.

Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause, and Reid T. Nelson,
of the same office, was with her on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with him on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Christopher C. Harris appeals from his convictions for attempted
capital murder, aggravated robbery, aggravated assault, and criminal possession of a
firearm following a convenience store robbery and manhunt during which he shot a
Topeka police detective. Harris argues a contingent of 15 to 20 police officers poisoned
the proceedings when they entered the courtroom in an apparent show of support for the
prosecution just as the jury was about to receive its instructions and deliberate. He also
claims reversible error occurred when the district court denied his requested jury

2
instructions on self-defense and attempted voluntary manslaughter, and when the
prosecutor made remarks Harris considers prejudicial during closing argument. We reject
these challenges and affirm the convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Around 6:30 p.m. on November 5, 2016, a man dressed in all black and wearing
red shoes entered a Topeka convenience store, pointed a handgun at the cashier, and said,
"'Give me all the fucking money, or I'm gonna kill you.'" The clerk handed over the cash
in the register. The man got into a blue PT Cruiser, and the car drove off. The cashier
called 911.

Around 6:37 p.m., a nearby police officer heard a radio dispatch about the robbery
and spotted a blue car matching the description. The officer followed until the car pulled
into a driveway. The driver and passenger got out and ran. Other officers arrived and
apprehended the driver. The passenger got away.

Detective Brian Hill assisted but then decided to go to the law enforcement center
to interview the driver. Hill drove an unmarked vehicle with interior mounted emergency
lights. He wore slacks and a dark colored shirt. His badge was on his duty belt with his
firearm, handcuffs, and two ammunition clips. He spotted a man matching the robber's
description.

At trial, Hill testified he stopped, turned on his emergency lights, and stepped out
of the car. He shined his flashlight on the man, identified himself as a police detective,
and asked if they could talk. As the man approached, he drew a gun and shot at Hill,
striking him several times. The detective returned fire and the man fled. The first backup
officer on the scene testified he "saw muzzle flash between [Hill] and [Harris.]" The

3
officer said he also shot at the fleeing man from his car window and was "fearful" at that
moment but was "not sure" if Harris ever turned to point a gun at him. Other officers
quickly arrived and got the wounded detective to a hospital.

Police soon found Harris lying in a nearby alley with multiple gunshot wounds.
They took him into custody and to a hospital. The State charged him with one count of
attempted capital murder, one count of aggravated robbery, two counts of aggravated
assault—one for the cashier and another for the first backup officer on the scene during
the shooting—and one count of criminal possession of a firearm. A jury convicted Harris
of all but the aggravated assault of the backup police officer.

Harris directly appeals to this court, raising these trial errors: (1) the district court
abused its discretion concerning the officers' sudden courtroom presence by denying a
mistrial and a postconviction motion for a new trial; (2) the court committed reversible
error by denying his requested jury instructions on self-defense and attempted voluntary
manslaughter; and (3) the prosecutor committed reversible error during closing by
misstating the law and commenting about Harris not testifying.

Our jurisdiction is proper. See K.S.A. 60-2101(b) (Supreme Court jurisdiction
over direct appeals governed by K.S.A. 2020 Supp. 22-3601); K.S.A. 2020 Supp. 22-
3601(b)(4) (off-grid crime cases permitted to be directly taken to Supreme Court); K.S.A.
2020 Supp. 21-5401(c) ("[A]ttempt to commit capital murder is an off-grid person
felony.").

MISTRIAL AND THE MOTION FOR NEW TRIAL

When the State first began presenting evidence, defense counsel objected to
having uniformed police officers in the courtroom. Counsel argued this gave the false

4
impression Harris was dangerous and required more security and also showed
sympathetic support for Hill as a fellow officer. Counsel added there was no objection if
out-of-uniform officers observed. The court dismissed this concern, saying it had seen
just two officers so far, and only one was in the courtroom at a time. The court ruled this
was not "unduly prejudicial" but acknowledged it would reconsider if a greater police
presence occurred.

Nothing more happened until just before the court was about to read the
instructions to the jury. That is when police officers, some in uniform and some in plain
clothes, entered after the jury was seated. The following colloquy occurred at the bench:

"[Defense]: I'm going to object to having several uniformed officers in here.
There's a few more coming in.

....

"[Prosecutor]: It's an open courtroom, and it's an open proceeding. . . . [T]his
does involve an officer, as the victim in this case.

"[Defense]: This will strictly sway the jury. It is not appropriate to have
uniformed police officers in here. If they want to put on street clothes, fine.

"THE COURT: Counsel, it's too much. If . . . it were a sex case with a child
victim, I would require any persons with any display of sympathy to be removed. And I
know this is a heated case, it's an officer involved shooting.

"Officers are in the courtroom in uniform filling up half the [courtroom]. I
believe Detective Hill can stay. And the ones in plain clothes can stay, but . . . .

"[Prosecutor]: Is the Court going to make that announcement?

5
 "THE COURT: That will bring it to the attention of the jurors then.

"[Defense]: Maybe they could go back in the jury room?

"THE COURT: . . . [T]he situation that we're in now . . . that they're here, if I
make any kind of display of asking them to leave, that's gonna [draw attention], more
than otherwise. . . . I think a lot of them . . . are witnesses. So they're persons that the jury
has already seen in uniform.

"[Defense]: I understand that. But it's obvious what's going on here.

"THE COURT: I know. But the question is, whether it would create more of a
problem if I asked them all to leave now, or if I just let them stay. And that's going to be a
call that the Court's going to have to make in its discretion, in the best interest of your
client.

"[Defense]: May I confer with co-counsel?

"THE COURT: I'm going to make—it's my courtroom.

"[Defense]: I understand that. No disrespect to the Court, but whether or not—I
mean, because they've already all piled in here—whether or not to request a mistrial.
That's what I want to speak with co-counsel about . . . .

....

"THE COURT: Let's read instructions and then you can address your mistrial
afterwards.

"[Prosecutor]: Does the Court want me to ask them privately?

6
 "THE COURT: I think if they all get up and leave, it's going to be obvious. I
don't think this rises to the level of a mistrial. Counsel, . . . would you feel better if the
Court asked them all to leave now?

"[Defense]: No, because that will cause attention.

"THE COURT: I completely agree, but—

"[Prosecutor]: Do you want me to ask them?

"THE COURT: I think any act of them leaving at this point would be the same. I
go back to the fact that, first of all, the majority of them are witnesses in this case. The
jury has seen them before in uniform. There are a number of plain clothed—I only see
one, two, three—I can't see behind the TV. I can't see how many there are, but it seems to
me that not all of them are in uniform. A lot of them are plain clothed.

"[Defense]: I'm going to—

"THE COURT: They're all clearly officers. Let's proceed, Counsel. If you'll let
me—if you want to make a motion later, you can."

After the jury convicted him, Harris moved for a new trial. He described what
happened as "dozens of uniformed police officers and detectives [entering] the courtroom
and [filling] the gallery on the State's side." He argued, "The strategic plan to pack the
courtroom as they did was an obvious[ly] inappropriate display of authority and it
violated the defendant's right to a fair trial." The State asserted there was no evidence the
officers' presence influenced the verdict, pointing out the jury's acquittal on the
aggravated assault charge concerning the backup officer.

7
 In its written ruling denying the new trial motion, the court made the following
findings:

"About [half] of the officers were in uniform and [the other half] were in plain clothes.
Some of the officers . . . had been witnesses during the jury trial. The court and counsel
recognized them as officers, and jurors may have also recognized some officers dressed
in plain clothes to be officers, but that is not entirely clear. . . . [T]here was no indication
at that point that jurors were in any way affected by the presence of law enforcement
officers.

....

" . . . [Those officers] sat quietly on the half of the gallery behind the [S]tate.
There were no greater than 15-20 officers that walked into the courtroom about the same
time. They entered at a time when there was a natural transition of the proceedings. The
court had just reconvened the jury and was getting ready to instruct the jury and to hear
closing remarks of counsel. There were no outbursts, no overt physical displays by
officers. There was no overt 'staring down' of jurors. About half were in uniform and half
were not in uniform. Those officers not in uniform wore plain clothes and had a badge on
their person as well as their service weapon."

And from this, the court explained:

"The court denied defendant's request to summarily remove all persons in the
gallery in front of the jury. The court found that such an exaggerated gesture would create
more of a distraction to jurors than simply allowing officers to remain. And while the act
of several officers coming in all at once was a distraction, and could have been seen as a
display of support for the victim in this case, it did not rise to a level that fundamentally
overbore the jury's ability to exercise free will in rendering a fair and independent
decision. In fact, the jury had seen a number of the officers throughout the trial because
they were witnesses. The jury was well aware from the beginning of the trial that
numerous officers were involved in the investigation of the crimes that were alleged."
8
Standard of review

At the outset, we should mention the circumstances arguably present three
possible analytical paths—K.S.A. 22-3423(1)(c) (mistrial), K.S.A. 2020 Supp. 22-
3501(1) (new trial), or both. The statutory language differs, but the practical effect in this
instance seems the same. The mistrial statute states: "The trial court may terminate the
trial and order a mistrial at any time that he finds termination is necessary because . . .
[p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with
the trial without injustice to either the defendant or the prosecution." K.S.A. 22-
3423(1)(c). The new trial statute provides: "The court on motion of a defendant may
grant a new trial to the defendant if required in the interest of justice." K.S.A. 2020 Supp.
22-3501(1).

Harris' counsel did not formally move for a mistrial when the officers arrived for
the jury instruction reading. He contemporaneously objected to their presence but then
told the court he wanted to talk with co-counsel about requesting a mistrial. The court
seemed to cut this off by signaling it would not grant such a motion, saying: "I don't
think this rises to the level of a mistrial."

Counsel revived the issue after the convictions through a new trial motion under
K.S.A. 22-3501(1). But in doing so, counsel framed the argument in the mistrial context
under K.S.A. 22-3423(1)(c). The court seemingly drew from both statutes as well. In its
written decision denying Harris a new trial, the court noted it had earlier ruled "the
presence of a number of uniformed and non-uniformed officers entering the courtroom
did not rise to a level of prejudice that would result in an unfair trial that would require
the court to declare a mistrial." (Emphasis added.) And later in its decision, the court
held, "And while the act of several officers coming in all at once was a distraction, and

9
could have been seen as a display of support for the victim in this case, it did not rise to a
level that fundamentally overbore the jury's ability to exercise free will in rendering a fair
and independent decision." In his appellate brief, Harris continues a mistrial focus.

Given these anomalies, we will view the question from both perspectives. After
all, there appears to be little practical difference as to whether the officers' presence
constituted a fundamental failure in the proceedings that made it impossible to proceed
without injustice to the defendant, rather than the incident being so prejudicial to Harris
that a new trial is required in the interest of justice. Either inquiry essentially asks the
same question, i.e., whether the challenged event deprived Harris of a fair trial. And we
apply the same abuse of discretion standard of review when considering the district
court's determination. See State v. Longoria, 301 Kan. 489, 530, 343 P.3d 1128 (2015).
Judicial discretion is abused if a court's action is (1) arbitrary, fanciful, or unreasonable,
(2) based on an error of law, or (3) based on an error of fact. State v. Sims, 308 Kan.
1488, 1496, 431 P.3d 288 (2018).

Harris was not denied a fair trial.

When applying K.S.A. 22-3423(1)(c), the court engages in a two-step analysis:
(1) "decide whether there was some fundamental failure of the proceeding," and (2) "if
so, determine whether it is possible to continue without an injustice." State v.
McCullough, 293 Kan. 970, Syl. ¶ 4, 270 P.3d 1142 (2012). The first question's analysis
varies with the nature of the challenged event "such as when the allegation is based on
the actions of a witness, the actions of a bystander, prosecutorial [error], or evidentiary
error." McCullough, 293 Kan. at 981. The second step requires assessing whether the
prejudicial conduct's damaging effect can be removed or mitigated through jury
admonition or instruction. "Appellate courts reviewing the second part for an injustice

10
may take a broader view than the trial court because appellate courts may examine the
entire record." 293 Kan. at 981.

Said differently, the burden of showing a fundamental failure is on Harris first, but
then the burden would fall on the State to demonstrate the injustice question under
Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). In this
instance, though, we do not reach that second step because we hold the district court did
not abuse its discretion when it decided there was no fundamental failure in the
proceedings that could have denied Harris a fair trial.

Central to the fair trial right protected by the Sixth and Fourteenth Amendments to
the United States Constitution is the principle that a criminal defendant is entitled to have
guilt or innocence determined solely on the basis of evidence admitted at trial. Holbrook
v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986). Due process
requires that "[t]rials must be free from a coercive or intimidating atmosphere." Carey v.
Musladin, 549 U.S. 70, 80, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006) (Kennedy, J.,
concurring). "Trial courts have a duty to maintain order and ensure that justice is not
obstructed by a person or persons. . . . [Courtroom] demonstrations can prejudice a
defendant's right to a fair trial." McCullough, 293 Kan. at 998. Harris complains about a
"coordinated appearance of 15-20 armed law enforcement officers, immediately before
instructions and closing argument." And he describes this as "the actions of spectators—
but they were spectators who were clothed with state authority," as opposed to the actions
of officers whose presence was mandated by governmental authorities. (Emphasis
added.)

Notably, there is a difference in how these circumstances are viewed when law
enforcement is involved. See Will v. Thaler, No. H-07-CV-1000, 2010 WL 2179680, at
*22 (S.D. Tex. 2010) (unpublished opinion) (distinguishing between the officers'
11
appearance in courtroom for security as directed by a governmental power and the
officers' appearance as spectators). The United States Supreme Court has declined so far
to establish a federal standard for evaluation of spectator incidents. In Musladin, 549 U.S.
at 76, the Court held "the effect on a defendant's fair-trial rights of the spectator conduct
. . . is an open question in our jurisprudence." And it clarified that the "inherent
prejudice" test it created in Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691, 48 L.
Ed. 2d 126 (1976), and Flynn, 475 U.S. at 570, for the effect of allegedly prejudicial
courtroom practices on a defendant's fair trial right—whether the challenged courtroom
practice presents "an unacceptable risk . . . of impermissible factors coming into play"—
had been applied only to "state-sponsored courtroom practices." Musladin, 549 U.S. at
75-76; Williams, 425 U.S. 501 (defendant tried in jail attire); Flynn, 475 U.S. 560
(supplementing the customary courtroom security force by four uniformed state
troopers).

Harris argues the challenged courtroom event inherently prejudiced him. But an
inherent prejudice test is applicable only to state-sponsored practices. See Musladin, 549
U.S. at 76 ("Reflecting the lack of guidance from this Court, lower courts have diverged
widely in their treatment of defendants' spectator-conduct claims."); People v. Ramirez,
10 Cal. 5th 983, 1014-15, 274 Cal. Rptr. 3d 309, 479 P.3d 797 (2021) (noting the lack of
clearly established federal test for spectator conduct); People v. Nelson, 27 N.Y.3d 361,
368, 33 N.Y.S.3d 814, 53 N.E.3d 691 (2016) (same). Admittedly, police officers'
appearance as spectators "traces the middle ground between the facts confronted in
Flynn[—in which the State compelled the defendant to stand trial in prison clothes—]and
Musladin[—in which the victim's family members wore buttons displaying the victim's
image]." Will, 2010 WL 2179680, at *22. But trial courts are in the better position to
decide if the prejudicial conduct complained of violated the accused's right to a fair trial.
See State v. Crum, 286 Kan. 145, 160, 184 P.3d 222 (2008); State v. Whitesell, 270 Kan.
259, 281, 13 P.3d 887 (2000).
12
 A few Kansas cases have dealt with an issue similar to what Harris' trial
experienced in a civilian spectator context. Those cases consistently require a showing of
actual prejudice. See, e.g., State v. Speed, 265 Kan. 26, 48, 961 P.2d 13 (1998) (requiring
defendant to provide "evidence that the jurors were in any way affected by the buttons or
t-shirts" with victim's photo); State v. Bradford, 254 Kan. 133, 134, 142, 864 P.2d 680
(1993) (requiring defendant to offer "evidence that any of the jurors saw or were
influenced by the buttons" depicting victim's image); State v. McNaught, 238 Kan. 567,
580, 713 P.2d 457 (1986) (requiring proof such as "an affidavit or the testimony of any
person that the jurors showed any concern about" spectators wearing "Mother Against
Drunk Driving" and "Student Against Drunk Driving" buttons). In the absence of binding
federal precedent, in Kansas, the decision to declare a mistrial lies within the trial court's
sound discretion and will not be disturbed unless there is a clear showing of abuse of that
discretion.

In Harris' case, the court's findings reflect no more than 15-20 officers walked into
the courtroom at about the same time when there was a natural transition in the
proceedings. Approximately half the officers were in uniform, while the rest were in
plain clothes with their badges displayed and their service weapons noticeable. They sat
quietly behind the State and made no outbursts or overt physical displays. And the court
noted the jury by that stage already had seen a number of the officers testifying as
witnesses. It is also relevant that when defense counsel objected to the officers' presence,
the court asked if counsel would "feel better" if the court asked them all to leave. Counsel
answered, "No, because that will cause attention." Agreeing, the court viewed "such an
exaggerated gesture would create more of a distraction to jurors than simply allowing
officers to remain."

13
 In his brief, Harris merely asserts the court abused its discretion in how it
processed the situation at trial when it was dismissive of the notion that a mistrial might
be justified. But even though the record lacks some details, like an exact number of the
uniformed officers or how many of them testified, what there is remains largely
consistent with the trial court's findings. And without more, Harris' arguments lack a
basis for more analytical depth under Speed, Bradford, and McNaught. In other words,
Harris does not offer evidence the officers' presence had any prejudicial impact.

Harris refers us to a Florida Court of Appeals case, Shootes v. State, 20 So. 3d 434
(Fla. Dist. Ct. App. 2009), which he claims is similar to his trial experience. But Shootes
is distinguishable and a bit of an outlier as the State points out. There, the defendant
produced four affidavits from courtroom observers describing the number and appearance
of police officers attending a trial at their union's request. The Shootes court held the
police officers in the gallery presented an unacceptable risk to fairness because of their
substantial numbers (between 35 to 70 officers), and because they were not present to
testify. 20 So. 3d at 436, 439. But in Harris' case the district court found 15-20 officers
attended, and "the majority of them" had already testified as witnesses.

Finally, we note the jury acquitted Harris on the aggravated assault charge
concerning the backup officer. Any notion the jury felt pressured by the police contingent
in the courtroom, as Harris asserts, is belied by that acquittal.

We hold the district court did not abuse its discretion when it concluded there was
no fundamental failure in the proceedings that could deny Harris a fair trial.

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 JURY INSTRUCTIONS

Harris requested jury instructions on self-defense and attempted voluntary
manslaughter. He now claims reversible error after the district court denied both as
factually inappropriate because it determined no evidence existed to show Harris'
subjective belief he needed to act in self-defense. We agree with the court.

Additional background

At trial, Detective Hill testified he first saw Harris on the sidewalk. He was not
sure if Harris was the man he was looking for, so he stopped his car, activated its
emergency lights, and stepped out. He shined his flashlight on Harris, identified himself
as a police detective, and asked if they could talk. It did not appear Harris had anything in
his hands. And as Harris walked towards him, Hill thought he was going to cooperate.
But Harris started shooting when they were about 8 feet apart, hitting Hill in both legs,
his lower stomach, hip, and elbow. Hill returned fire.

The defense speculated Harris could have been mistakenly acting in self-defense
when he fired at the plain clothes detective by disputing whether Hill activated his
vehicle's emergency lights. Harris called witnesses to describe what they saw that
evening. Karen Valdivia lived nearby. She was in her living room, heard gunshots, and
looked out the front door. She testified she did not see any headlights and did not
"remember whether there were lights on or not." Joseph Lopez also lived nearby. He
heard about four pistol shots while watching television in his bedroom. He looked out his
front door but did not see anything. When asked about "any flashing lights," he said: "I
can't recall that. I can't recall if I [saw] any flashing lights. For some reason, I'm sure if I
would've seen it, I would've remembered, but I can't recall that."

15
 Another neighborhood resident, Mayra Rodriguez, saw a man walking down the
street with a car slowly following. She went inside and told her parents. Then she heard
gunshots, and police started arriving. Jesus Rodriguez, her father, looked out his window
when Mayra told him what she saw. At that moment, he heard shots and saw muzzle
flashes. He saw a dark-colored car but did not notice anything else about it. Jesus took his
family to the back of the house. When he looked out the front again, he saw police
vehicles, which he identified because "they're black and white with the sirens and
everything." When asked about the dark car he saw earlier, Jesus said "I didn't see any
. . . lights."

Contrary evidence came from officers at the scene who testified they saw the
detective's car with its emergency lights on. Officer Kyle Jeanneret, the first backup
officer to arrive, said he saw Hill's car "with clearly visible red and blue lights on the rear
end." He also saw an exchange of gunfire. Officer Timothy Bell testified he noticed the
detective's car with its lights activated, which was corroborated by dash camera video.
Detective Michael Barron testified he saw Hill's "emergency lights were activated. I saw
just the back of it." And Detective Scott Dickey, who retrieved Hill's car the next day,
testified both the front and back lights activated when he started the car.

Bullet casings also played a role in Harris' arguments. Investigators found a 9mm
SCCY brand pistol at the scene and a SCCY 9mm magazine in the PT Cruiser's glove
box. Investigators also discovered three brass casings that apparently belonged to the
9mm SCCY brand pistol—one on the street near the curb, another on the sidewalk, and
the other close to the alley garage where police found Harris. The defense claimed these
brass casings showed Harris was running away while shooting, which contradicts Hill's
account that Harris shot first and then fled.

16
 At the jury instructions conference, the defense claimed the following evidence
supported the requested instructions: (1) Officer Jeanneret's testimony he saw an
exchange of gun fire; (2) the lack of other evidence corroborating Hill's testimony about
who shot first; (3) the brass casings pattern; (4) the possibility Harris did not know Hill
was a police officer because he drove an unmarked car and wore plain clothing; and (5)
the witness testimony from those who did not recall seeing any emergency lights
activated. The State countered that none of this mattered without proof of Harris'
subjective belief he needed to defend himself because no other evidence showed what he
was thinking at that moment.

The court agreed with the State. It pointed out the defense's theory "only works . . .
if there was evidence that Officer Hill shot . . . first." It also noted no evidence indicated
Hill acted unlawfully.

Standard of review

An appellate court reviews instructional error claims in multiple steps. First, it
decides whether the issue was properly preserved below. Second, it considers whether the
instruction was legally and factually appropriate. In doing so, the court exercises
unlimited review of the entire record and views the evidence in the light most favorable
to the requesting party. And when the reviewing court finds error, it determines whether
that error is reversible. If the defendant properly requested the instruction, as Harris did,
and a reviewing court also finds the instruction was both legally and factually
appropriate, the State must establish there is no reasonable probability the absence of the
error would have changed the verdict. The court considers the entire record de novo when
deciding whether the State meets its burden. State v. Randle, 311 Kan. 468, 471, 462 P.3d
624 (2020); see also State v. Keyes, 312 Kan. 103, 107, 472 P.3d 78 (2020) (reasonable
probability test for preserved self-defense instructional error claim); State v. Qualls, 297

17
Kan. 61, 71, 298 P.3d 311 (2013) (Qualls I) (reasonable probability test for preserved
voluntary manslaughter instructional error claim); State v. Ward, 292 Kan. 541, 569-70,
256 P.3d 801 (2011) (reversibility inquiry's test and degree of certainty in detail).

Discussion

Our issue is whether both requested instructions were factually appropriate, which
depends on whether Harris subjectively believed he was acting in self-defense. The
relevant portion of the self-defense statute declares:

"(a) A person is justified in the use of force against another when and to the
extent it appears to such person and such person reasonably believes that such use of
force is necessary to defend such person . . . .

"(b) A person is justified in the use of deadly force under circumstances
described in subsection (a) if such person reasonably believes that such use of deadly
force is necessary to prevent imminent death or great bodily harm to such person . . . ."
(Emphases added.) K.S.A. 2020 Supp. 21-5222.

This sets out a two-part test: (1) the subjective test requires a showing that a
defendant "sincerely and honestly believed it was necessary to kill to defend" themselves;
and (2) the objective test requires a showing that a reasonable person in the defendant's
"'circumstances would have perceived the use of deadly force in self-defense as
necessary.'" State v. Haygood, 308 Kan. 1387, 1405, 430 P.3d 11 (2018).

The pertinent portion of the voluntary manslaughter statute provides: "Voluntary
manslaughter is knowingly killing a human being committed . . . upon an unreasonable
but honest belief that circumstances existed that justified use of deadly force under
K.S.A. 21-5222." (Emphasis added.) K.S.A. 2020 Supp. 21-5404(a)(2); see also K.S.A.

18
2020 Supp. 21-5301(a) ("An attempt is any overt act toward the perpetration of a crime
done by a person who intends to commit such crime but fails in the perpetration thereof
or is prevented or intercepted in executing such crime."). In other words, voluntary
manslaughter lacks the objective/reasonable belief requirement—one of two necessary
elements for self-defense.

To be entitled to the self-defense instruction, K.S.A. 2020 Supp. 21-5108(c)
requires "competent evidence," which is defined as evidence that could allow a rational
fact-finder to reasonably conclude that the defense applies. K.S.A. 2020 Supp. 21-
5108(c) ("A defendant is entitled to an instruction on every affirmative defense that is
supported by competent evidence."); State v. Staten, 304 Kan. 957, 965, 377 P.3d 427
(2016) (defense theory of self-defense is affirmative defense in Kansas). To be entitled to
the attempted voluntary manslaughter instruction, K.S.A. 2020 Supp. 22-3414(3) requires
"some evidence." See K.S.A. 2020 Supp. 22-3414(3) ("In cases where there is some
evidence which would reasonably justify a conviction of some lesser included crime . . . ,
the judge shall instruct the jury as to the crime charged and any such lesser included
crime."); State v. Seba, 305 Kan. 185, 208, 380 P.3d 209 (2016) ("Imperfect self-defense
voluntary manslaughter . . . is a lesser included offense of first-degree intentional
murder.").

Both statutes require reasonableness in determining whether a defendant is entitled
to such instructions: "reasonabl[e] conclu[sion] that the defense applies" under K.S.A.
2020 Supp. 21-5108(c), and "reasonabl[e] justif[ication for] a conviction of some lesser
included crime" under K.S.A. 2020 Supp. 22-3414(3). And our caselaw seems to treat
these evidentiary standards similarly. Compare State v. Qualls, 309 Kan. 553, 557-58,
439 P.3d 301 (2019) (Qualls II) ("Even if the only evidence supporting the defendant's
[self-defense] theory consists of the defendant's own testimony, which may be
contradicted by all other witnesses and by physical evidence, the defendant may have met
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his or her burden [under K.S.A. 2020 Supp. 21-5108(c)]."), with State v. Maestas, 298
Kan. 765, 779, 316 P.3d 724 (2014) ("[E]vidence need not be strong or conclusive to
warrant the [lesser included offense] instruction."); State v. Nelson, 291 Kan. 475, 480,
243 P.3d 343 (2010) ("District courts have a duty to issue instructions on any lesser
included offense established by the evidence, even if the evidence is weak or
inconclusive.").

We hold the district court correctly rejected the requested instructions because no
direct or circumstantial evidence supports Harris' subjective belief about self-defense. See
State v. Thach, 305 Kan. 72, 83, 378 P.3d 522 (2016) (one's subjective state of mind
"'may be proved by circumstantial evidence'"); State v. Gonzalez, 311 Kan. 281, 288, 460
P.3d 348 (2020) ("Intent is usually proven by inference arising from circumstantial
evidence because direct evidence of a defendant's state of mind is rarely available.").

Harris basically argues (1) the unmarked detective car, (2) Hill's plain clothes, (3)
Hill's use of a flashlight, (4) the testimony concerning the emergency lights, (5) the
multiple gunshots exchanged between Harris and Hill, (6) Harris' injury, and (7) the brass
casings positions, taken together, indicate he "sincerely and honestly believed it was
necessary to [fire a gun at Hill] to defend himself" under K.S.A. 2020 Supp. 21-5222,
and/or that he unreasonably but honestly believed "circumstances existed that justified
[his use of] deadly force" against Hill under K.S.A. 2020 Supp. 21-5404(a)(2). But his
reasoning is flawed. Points (1)-(4), when viewed in the light most favorable to Harris,
may suggest he had reason to be cautious about a stranger following him, but this would
not reasonably support a subjective belief he was at risk of imminent death or great
bodily harm. And points (5)-(7) relate to events occurring after the shooting began and
add nothing to the analysis. The only evidence about who shot first was Detective Hill's
statement identifying Harris as the first to fire.

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 Reduced to its base ingredients, Harris simply puts forward hypotheticals to
support his requested instructions, i.e., Hill could have shot first. But hypothetical
arguments are not considered when reviewing a factual appropriateness claim. See, e.g.,
Keyes, 312 Kan. at 109 (considering defendant's testimony that he "feared for his life
when [victim] came at him with a knife threatening to kill him"; holding the self-defense
instruction was factually appropriate); Haygood, 308 Kan. at 1407 (considering
defendant's testimony the victim charged him with a knife after making a threatening
statement; holding the self-defense instruction was factually appropriate); Qualls II, 309
Kan. at 559 (considering defendant's testimony that he "'was just trying to stop [the
victim] . . . [f]rom killing [him]'"; holding the self-defense instruction was factually
appropriate); Qualls I, 297 Kan. at 70-71 (considering defendant's statement that "he
believed [victim] had a gun, so he shot him"; holding the voluntary manslaughter
instruction was factually appropriate).

The requested instructions were not factually appropriate. The district court did
not err by refusing to give them.

PROSECUTORIAL ERROR

Harris contends reversible prosecutorial error occurred during closing argument on
two occasions: (1) when stating the law regarding the elements of attempted first-degree
premeditated murder and attempted second-degree intentional murder and (2) when
commenting that Harris did not testify. We disagree.

Standard of review

The two-step analysis for reviewing prosecutorial error claims is quite familiar by
now. In State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016), the court declared:

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 "[The] two steps can and should be simply described as error and prejudice. To determine
whether prosecutorial error has occurred, the appellate court must decide whether the
prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to
conduct the State's case and attempt to obtain a conviction in a manner that does not
offend the defendant's constitutional right to a fair trial. If error is found, the appellate
court must next determine whether the error prejudiced the defendant's due process rights
to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional
harmlessness inquiry demanded by Chapman. In other words, prosecutorial error is
harmless if the State can demonstrate 'beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of the trial in light of the entire
record, i.e., where there is no reasonable possibility that the error contributed to the
verdict.'"

Stating the elements of the lesser included offenses

When discussing the instructions on the lesser included offenses, the prosecutor
said:

"You have been given a lesser included of . . . attempted murder in the first degree. To
find the defendant guilty of that, you must decide that the defendant didn't know
Detective Hill was a law enforcement officer but he still acted with premeditation.

"You've also been given the lesser included of attempted murder, intentional,
second degree. To find the defendant guilty of that offense, you must find that the
defendant didn't know he was a law enforcement officer, and he didn't act with
premeditation."

Harris claims this misstates the law for both crimes because "[n]either a conviction
for first degree murder nor second degree murder contains, as an element, that the
defendant did not know the victim was a law enforcement officer." But as the State

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correctly points out, the comment on the attempted first-degree murder was not wrong.
The prosecutor described attempted capital murder and then described its lesser included
offenses of attempted first-degree murder and attempted second-degree murder. As to
attempted first-degree murder, the prosecutor explained that to find Harris guilty of that
offense, the jury "must decide that the defendant didn't know Detective Hill was a law
enforcement officer but he still acted with premeditation." (Emphasis added.)

This is an accurate statement of law. "Capital murder is the . . . intentional and
premeditated killing of a law enforcement officer." K.S.A. 2020 Supp. 21-5401(a)(5).
"Murder in the first degree is the killing of a human being committed . . . [i]ntentionally,
and with premeditation." K.S.A. 2020 Supp. 21-5402(a)(1). Both offenses must be done
with premeditation, but the former requires knowledge of the victim's specific status,
while the latter has no such requirement. The comment merely identified the distinction,
which was a fair and accurate statement of law.

Harris next contends the prosecutor misstated the victim's status as a law
enforcement officer was an element of second-degree intentional murder. The State
argues "[n]o reasonable person would have construed [the prosecutor's] statements as
meaning the jury had to make affirmative findings of the absence of those two elements."
We agree with the State upon looking at the entire argument in context.

At first blush, the prosecutor seemingly directed the jury to affirmatively find the
two elements' absence if one focuses on just the statement that: "To find the defendant
guilty of [second-degree intentional murder] offense, you must find that the defendant
didn't know he was a law enforcement officer, and he didn't act with premeditation."
(Emphasis added.) Compare K.S.A. 2020 Supp. 21-5401(a)(5) (capital murder of officer),
with K.S.A. 2020 Supp. 21-5403(a)(1) ("Murder in the second degree is the killing of a
human being committed . . . [i]ntentionally."). But when taken in the fuller context with
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the prosecutor's closing, the prosecutor seemed to be sequentially explaining the
difference in the charges. Although awkwardly spoken, we hold the prosecutor did not
misstate the law in context.

Commenting on a defendant's silence at trial

Harris next claims the prosecutor erred by drawing the jury's attention to the fact
Harris did not testify. The comments were: "There are two eyewitness[es] to his account,
Detective Hill, and the defendant. And the only evidence that you heard in this case was
that the defendant shot at Detective Hill first," and "[t]he only evidence you have to
consider is what Detective Hill told you."

"[P]rosecutors generally err if they comment on a defendant's failure to testify."
State v. Martinez, 311 Kan. 919, 922, 468 P.3d 319 (2020); see also State v. Davis, 255
Kan. 357, Syl. ¶ 1, 874 P.2d 1156 (1994) ("The Fifth Amendment of the United States
Constitution forbids comment by the prosecution on the accused's silence."); State v.
Higgenbotham, 264 Kan. 593, 600, 957 P.2d 416 (1998) (Section 10 of the Kansas
Constitution Bill of Rights also protects the accused's exercise of their privilege not to
testify); K.S.A. 60-439 ("If a privilege is exercised not to testify . . . the judge and
counsel may not comment thereon."). But Kansas courts do not consider a prosecutorial
statement in isolation.

Often the line between a prosecutor's permissible and impermissible statement is
dependent on the broader context. So courts "ask whether the language used was outside
the wide latitude allowed a prosecutor because it was of such a character that the jury
would naturally and necessarily take it to be a comment on the failure of the accused to
testify or to shift the burden of proof. If so, it is error." Martinez, 311 Kan. at 923. If the
comment is merely a fair statement that points "'out a lack of evidence to support a

24
defense or to corroborate a defendant's argument regarding holes in the State's case,' it is
generally not error." 311 Kan. at 923.

At closing, the defense challenged Detective Hill's credibility and told the jury the
only eyewitness to the shooting was Officer Jeanneret. Counsel said,

"There's really only one eye witness to this entire event, and that's Officer Jeanneret. . . .
Immediately upon arriving there, he saw muzzle flashes; he saw gunfire. He can't say
who shot first. He just saw a gun fight . . . .

....

"So we also have to ask of this investigation, what are we missing? Officer
Jeanneret's body cam. Officer Jeanneret arrived at the scene before gunshots erupted. . . .
We've watched the body cam footage, it's shaky at best sometimes. But, if there was body
cam footage of this event, you would have probably the most crucial piece of evidence
you could have to determine what happened." (Emphases added.)

In response, the prosecutor made the statements Harris now complains of. But the
prosecutor quite obviously was just pointing out there was an eyewitness who saw Harris
shoot first, i.e., Detective Hill, by indicating Jeanneret, who arrived after the shooting
started, was not an eyewitness, so the jury could consider Hill's testimony. The
prosecutor said:

"Defense argues that there was only one eyewitness to this account. That is not
true. Officer Jeanneret was not an eyewitness to what happened at the moment the
shooting started. There are two eyewitness to his account, Detective Hill, and the
defendant. And the only evidence that you heard in this case was that the defendant shot
at Detective Hill first. Officer Jeanneret didn't show up until the shooting already started.

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 "It doesn't matter when his Axon camera was turned on. That wouldn't have told
you anything. It wouldn't have told you anything. It wouldn't have mattered if all the
officers had turned their Axon cameras on as soon as they got the call, 1039 to respond,
from the moment they started until they got there. It wouldn't have told you anything
about what happened on that day. The only evidence you have to consider is what
Detective Hill told you." (Emphases added.)

The prosecutor's comments were "'not an impermissible remark about the
defendant's failure to testify,'" but rather were "'within the wide latitude afforded to the
prosecution.'" State v. Pribble, 304 Kan. 824, 837, 375 P.3d 966 (2016).

Affirmed.

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