State v. Adams

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,432

STATE OF KANSAS,
Appellee,

v.

TAURUS ADAMS,
Appellant.


SYLLABUS BY THE COURT

1.
Appellate review of an allegation of prosecutorial misconduct involving improper
comments to the jury follows a two-step analysis. First, the appellate court decides
whether the comments were outside the wide latitude that the prosecutor is allowed in
discussing the evidence. Second, the appellate court decides whether those comments
constitute plain error; that is, whether the statements prejudiced the jury against the
defendant and denied the defendant a fair trial.

2.
In the second step of the two-step prosecutorial misconduct analysis, the appellate
court considers three factors: (1) whether the misconduct was gross and flagrant; (2)
whether the misconduct showed ill will on the prosecutor's part; and (3) whether the
evidence was of such a direct and overwhelming nature that the misconduct would likely
have had little weight in the minds of jurors. None of these three factors is individually
controlling. Moreover, the third factor may not override the first two factors unless the
harmless error tests of both K.S.A. 2010 Supp. 60-261 (refusal to grant new trial is not
erroneous if party's substantial rights were not affected) and Chapman v. California, 386
2

U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), have been
met.

3.
If a party does not object to a jury instruction at trial, an appellate court reviews a
claim that the instruction is erroneous under the clearly erroneous standard.

4.
Instructions are clearly erroneous only if the reviewing court is firmly convinced
there is a real possibility that the jury would have rendered a different verdict if the error
had not occurred.

5.
The Pattern Instructions for Kansas (PIK) Crim. 3d 68.09, which states that the
charged offense includes lesser offenses and the defendant can be found guilty of the
charged offense, a lesser offense, or could be found not guilty, is not erroneous. PIK
Crim. 3d 68.09, when read with elements instructions that include a transitional statement
explaining the order in which instructions are to be considered, fully and accurately
informs the jury it can consider lesser offenses and provides the jury with an orderly
method for doing so.

6.
The Pattern Instructions for Kansas (PIK) Crim. 3d 54.01, which states that
ordinarily a person intends all of the usual consequences of his or her voluntary acts, does
not mislead the jury into believing that the State does not have to prove that the defendant
premeditated a killing. PIK Crim. 3d 54.01 contains a permissive inference that may be
considered by jurors along with all the other evidence in the case and does not replace the
required element of criminal intent necessary for conviction in those cases where criminal
intent is a necessary element of the offense. Other standard pattern instructions clearly
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inform the jury of the State's burden to prove every element, including proving
premeditation and an intent to kill.

Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge. Opinion filed
April 15, 2011. Affirmed.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.

Robbin L. Wasson, senior assistant district attorney, argued the cause, and Jerome Gorman,
district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Taurus Adams was convicted by a jury of premeditated first-degree
murder, in violation of K.S.A. 21-3401(a), and criminal use of a weapon, a class A
misdemeanor, in violation of K.S.A. 21-4201. Adams now appeals from his conviction
for premeditated first-degree murder, arguing (1) the prosecutor committed misconduct
during closing argument, (2) the trial court erred by giving the jury instructions on
premeditated first-degree murder and its lesser included offenses in descending order of
severity, and (3) the trial court erred by instructing the jury regarding criminal intent and
premeditation in a manner that impermissibly lessened the State's burden of proof. We
reject Adams' arguments and affirm his conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of December 23, 2007, a fight broke out near a bar at The Legends in
Kansas City, Kansas. Defendant Adams was at the scene with two friends, twin brothers
Jeff and Jake Lichtenberger. The victim, Ratsamy Phanivong, was at the crowded bar to
celebrate a friend's birthday.
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Adams explained at trial that, on the day of the shooting, he was moving out of his
residence into his parents' house and had loaded a few items into his car, including
clothing, computer equipment, and his gun. Because the gun and ammunition were
expensive, Adams did not want to leave them in the car, so he placed those items in his
pockets.

That night, Adams, Jeff, and Jake went to a party. When they left the party, Adams
was ready to go back to his parents' house, but the twins wanted to go to The Legends for
a drink. They drove to The Legends, and Jeff and Jake went into the bar while Adams
and another friend, Wes Murphy, stayed in the car.

Inside the bar, Jake made his way onto the dance floor. As Jake was dancing, a
man confronted him about looking at his "girl" or dancing with her. The man asked if
Jake and his brother wanted to go outside and fight. Then, Phanivong walked up and
shoved Jake backwards a foot or two. Jake threw his beer in Phanivong's face. A group of
Phanivong's friends walked up, but bouncers broke up the ruckus and told Phanivong to
leave the bar. A short time later, the bouncers also told the twins to leave because of the
drink-throwing incident. About that time, Adams, who had gotten cold in the car, came
into the bar, asking for the car keys. The three friends left the bar together.

According to Jeff's trial testimony, as Adams and the twins turned to walk to the
parking garage, Phanivong, who had not left the vicinity, saw them and asked Jeff, "Who
threw that drink in my face?" Jeff did not want any trouble so he told Phanivong that "we
didn't throw the drink." Adams and the twins were walking away when Phanivong took a
swing at Jeff, hitting the back of his head. Jeff briefly fell to the ground and got back up.
Adams jumped between Jeff and Phanivong and said they were not looking for trouble.
With that, Phanivong punched Adams in the head. Adams pulled out a .40 caliber
handgun from his waistband and fired two fatal shots at Phanivong. Adams and the twins
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ran to their car, while Adams repeatedly said, "Let's go, let's go, let's go." They could not
drive away, however, because security guards and bouncers detained them.

Another witness, Phanivong's friend Bounkhong Inhnarath who had left the bar
with Phanivong, testified to a slightly different version of events. According to Inhnarath,
while inside the bar, Phanivong argued with someone (apparently Jake) who threw a
drink in Phanivong's face. A bouncer escorted the two friends out of the bar through a
side door. It was a cold night, and Inhnarath used his cell phone to call another friend,
who was still inside the bar and who had driven them to the bar. While waiting for their
driver to exit the front door of the bar, Phanivong and Inhnarath encountered Adams,
Jake, and Jeff exiting the bar. Inhnarath was waiting by the door, and Phanivong was
waiting further back. After the three men passed by Inhnarath, Phanivong yelled to his
friend that those were the guys who "started shit with me inside." Adams and the twins
approached Phanivong and another altercation ensued, during which Inhnarath heard
Adams say, "You want some of this?" From where he stood, Inhnarath did not see
anybody throwing punches, although he admitted that he heard a "moving noise like
almost like a thumping noise." Adams then pulled out a handgun and fired two shots at
Phanivong, killing him. Inhnarath testified that when Adams pulled out the gun,
Phanivong started slowly backing up.

Waleed Shabibi, a friend of Phanivong and Inhnarath, also testified. He explained
that he and his girlfriend arrived outside at the bar as Inhnarath was calling the person
who had driven him to the bar. According to Shabibi, Phanivong and Inhnarath were
upset about the beer-throwing incident and being ejected from the bar. Shabibi testified
that he was walking his girlfriend to the front entrance of the bar when he heard
Phanivong and Inhnarath arguing with the other three men. Almost immediately after
noticing the argument, Shabibi saw two muzzle flashes and heard shots.

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Another witness, Stephanie Couch, was leaving the bar with some friends when
she noticed a scuffle between two "groups"—two men who she initially thought were of
Hispanic descent but later determined were of Asian descent against two Caucasian men
and an African-American man. Phanivong and Inhnarath are of Asian descent, Jake and
Jeff are Caucasian, and Adams is African-American. Couch noticed yelling, arguing, and
"some punches." She testified that she "heard screaming . . . about a girl." Couch saw one
man of Asian descent and one Caucasian throw a punch. She thought the Caucasian's
punch made contact, although no one fell to the ground. Couch testified that the African-
American man drew his gun and shot.

Several other eyewitnesses testified. One saw a man of Asian descent punching
someone in a group of three, then saw a man pull out his gun and heard him ask, "You
sure you wanna do this?" The man then fired shots. A security guard was standing inside
the front entrance of the bar before the shooting. He watched Adams and the twins as
they walked from the bar and then saw Phanivong and Inhnarath approach them. He
testified that he saw them arguing, and one of the men of Asian descent was "a little more
excited than everyone else" because he was "moving his arms around." According to the
security guard, no punches were exchanged, and he was preparing to call for help in
breaking up the argument when two shots were fired.

Adams testified in his own defense. He told the jury, "I'm not guilty. I was just
defending myself." Adams explained that as he left the bar with his two friends, he was in
the lead. He noticed one man waiting outside the door, later identified as Inhnarath, and
another man, later identified as Phanivong, further back. Phanivong walked up to Jeff and
said, "Hey, man, you throw a drink on me?" After Jeff told him they did not want any
trouble and that he did not throw a drink on him, Phanivong said, "Let's fight" and took a
swing. Adams testified that Phanivong was angry—"real hot"—and "jumping around."
Adams was walking away with the twins when Phanivong hit Jeff in the back of the head,
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and Jeff fell down. When Jeff stood up, Phanivong was still "coming at him," so Adams
stepped between the two men to break up the scuffle.

According to Adams, he told Phanivong, "We don't want no problems, man. Hey,
it's Christmas time. . . . I'm ready to go home. . . . We don't have to have no problems,
man, let's just go home." Phanivong said something like, "What's up?" And then
Phanivong punched Adams in the temple.

Adams testified that at that point he looked over and saw the other man, Inhnarath,
pull out a knife with a 5- or 6-inch blade. Adams said he pulled out his gun because he
felt threatened and thought the gun would diffuse the situation.

Adams said he did not point the gun at anybody at first—he just pulled it out of his
pocket, told the men to "back up," and pointed the gun at the ground "to make the gun
visible." Adams started backing away and said something like, "We don't have to do this.
You sure you want to do this?" Instead of retreating, Phanivong started for Adams' gun,
and Inhnarath came at Adams with the knife. As Phanivong dove for the gun, he pushed
Adams' arm. Then Adams lifted up the gun and fired a shot, aiming for Phanivong's
shoulder. Adams testified: "It wasn't my intent to kill him. The whole . . . thing was . . . it
was foolish, it was senseless, it was silly. But if somebody was gonna die over something
foolish and silly, I didn't want it to be me." Adams shot Phanivong a second time because
"he kept coming." After the second shot, Phanivong fell down.

Adams saw Inhnarath digging in Phanivong's pocket and feared that Inhnarath was
trying to find a gun. Adams froze, and one of the twins grabbed his jacket and said,
"Come on, let's go, let's go, let's go." The three friends then ran to the parking garage.
They climbed into the car but did not leave because the car was surrounded by men who
Adams thought were police officers. He opened the car door and threw down the gun
because he "didn't want to get shot" by the police.
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The bouncers and others came to the assistance of Phanivong. Kansas City,
Kansas, police officers arrived on the scene shortly thereafter and took the occupants of
the car into custody. None of the bouncers or police officers testified to finding a knife.
Indeed, no other witnesses mentioned a knife, and Inhnarath denied having a weapon that
night.

Adams was charged with the premeditated killing of Phanivong, in violation of
K.S.A. 21-3401, and the criminal use of a weapon, in violation of K.S.A. 21-4201. He
was convicted as charged. Adams now makes a timely appeal over which this court has
jurisdiction under K.S.A. 22-3601(b)(1) (conviction of an off-grid crime).

PROSECUTORIAL MISCONDUCT

Adams first contends that the prosecutor committed misconduct during closing
argument by making misstatements of law and attempting to inflame the jury, which
denied Adams a fair trial. This contention lacks merit.

Adams complains about three specific statements made by the prosecutor. Defense
counsel only objected to one of the prosecutor's statements (the third one), which was
made during the rebuttal portion of the State's closing argument. Regardless, this court
has recently reiterated that a contemporaneous objection to prosecutorial misconduct
during closing argument is not required in order to preserve the issue for appeal. State v.
Stone, 291 Kan. 13, 17, 237 P.3d 1229 (2010); State v. King, 288 Kan. 333, 349, 204 P.3d
585 (2009); State v. McReynolds, 288 Kan. 318, 322-23, 202 P.3d 658 (2009).

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Standard of Review

In reviewing claims of prosecutorial misconduct, this court utilizes a familiar two-
step analysis:

"In general, appellate review of an allegation of prosecutorial misconduct
involving improper comments to the jury follows a two-step analysis. First, the appellate
court decides whether the comments were outside the wide latitude that the prosecutor is
allowed in discussing the evidence. Second, the appellate court decides whether those
comments constitute plain error; that is, whether the statements prejudiced the jury
against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan.
[418, 428, 153 P.3d 497 (2007)].

"In the second step of the two-step analysis, the appellate court considers three
factors: '(1) whether the misconduct was gross and flagrant; (2) whether the misconduct
showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct
and overwhelming nature that the misconduct would likely have had little weight in the
minds of jurors. None of these three factors is individually controlling. Moreover, the
third factor may not override the first two factors unless the harmless error tests of both
K.S.A. [2010 Supp.] 60-261 [refusal to grant new trial is not erroneous if party's
substantial rights were not affected] and Chapman v. California, 386 U.S. 18, [22,] 17 L.
Ed. 2d 705, 87 S. Ct. 824 [reh. denied 386 U.S. 987] (1967) [conclusion beyond a
reasonable doubt that the error had little, if any, likelihood of having changed the result
of the trial], have been met. [Citations omitted.]' State v. Albright, 283 Kan. at 428." State
v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).

See State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004) (second step essentially directed
to whether misconduct was so prejudicial that it denied defendant a fair trial).

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First Statement

The first claim of misconduct alleged by Adams is the prosecutor's statement
during rebuttal that "[t]his case doesn't just mean something to the defendant. It means
something to Ratsamy Phanivong. This is the only chance he will ever have to have
someone held accountable for taking his life. So this day is as much about him if not
more than anyone else." Adams argues that this statement was improper for two reasons:
(1) It was an improper appeal to base the jury's deliberations on sympathy for the victim,
and (2) it was a misstatement of the law.

With regard to Adams' argument that the statement was an improper appeal for
sympathy, a prosecutor crosses the line of appropriate argument when that argument is
intended to inflame the jury's passions or prejudices or when the argument diverts the
jury's attention from its duty to decide the case on the evidence and controlling law. Tosh,
278 Kan. at 90. Arguing the prosecutor crossed this line, Adams suggests that the
comments in this case are similar to those in State v. Henry, 273 Kan. 608, 621, 44 P.3d
466 (2002). In Henry, the prosecutor urged the jury to think about Mother's Day and how
the victim's mother felt. This court reversed and remanded for a new trial, in part, because
the prosecutor's comment inflamed the passions of the jury and caused prejudice. In
contrast, the statements in this case are not as inflammatory. Even so, the comments
focus on sympathy for the victim.

Plus, this court has held that a prosecutor's argument regarding the impact of a
crime on a victim or a victim's family may constitute reversible error because it diverts
attention from the evidence and law. See Tosh, 278 Kan. at 92 (finding that the
prosecutor's statements that the jury should convict the defendant in order to protect his
daughter was one of the bases for reversible prosecutorial misconduct); State v. Donesay,
265 Kan. 60, 85-88, 959 P.2d 862 (1998) (murder victim's widow testified in detail
regarding her relationship with her husband and her husband's friendly disposition; the
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admission of this testimony was irrelevant as to the crime charged and constituted
reversible error).

The statement in this case more subtly focused on sympathy for the victim than
did the statements at issue in Henry, Tosh, or Donesay. Nevertheless, in light of those
cases, we conclude that the prosecutor's statement about the victim is improper. As in the
prior cases, the prosecutor's argument diverts attention from the jury's function of
determining guilt based on the instructions rather than because of sympathy.

Adams argues the error is compounded because the prosecutor's comments also
misstate the law. Specifically, he argues the trial was not Phanivong's "only chance" to
hold someone accountable for his death and, even if that was true, it is the prosecutor's
responsibility, not the juror's, to bring criminal charges against an accused person. Adams
asserts that "the jury could have been misled to believe that the only options were for it to
convict [Adams] or allow the killing to go completely unpunished." The State responds
that these were the only two options available to the jury because it is undisputed that
Adams shot the gun, and, therefore, the only question is whether the shooting was in self-
defense.

The State's position ignores several points which we consider valid and which lead
us to the conclusion that the comments misstate the law. First, the comments ignore the
possibility that the jury would not be able to unanimously agree on a verdict. Second, the
comments ignore the availability of civil redress. Finally, the comments suggest that the
case was brought on behalf of the victim rather than the people of Kansas.

Because the comments are both an improper appeal for sympathy for the victim
and a misstatement of the law, we conclude the comments are improper. Consequently,
we must consider whether the comments constitute plain error. The first factor in this
determination is whether the conduct was gross and flagrant. In this regard, as we have
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noted, the call for sympathy in this case is much more subtle that in Henry, Tosh, and
Donesay. Additionally, the prosecutor only made a passing reference to the victim and
did not dwell on or repeat the point. Hence we conclude the comments are not gross or
flagrant.

The second factor to be considered in determining whether there is plain error is
whether the comment showed ill will. Regarding this factor, Adams suggests that Henry,
Tosh, and Donesay are not of recent origin and stand for well-established principles. On
the other hand, in suggesting there was no ill will, the State points to the fact that the
statements were made in the rebuttal portion of the prosecutor's argument, were
responding to arguments made by defense counsel regarding the importance of the case
to Adams, and were immediately preceded by the prosecutor urging the jury to "follow
the law and decide this case based upon the evidence and the law as you're instructed.
That was your oath. That's the right thing to do." As the State argues, we have repeatedly
considered similar factors when assessing whether the prosecutor demonstrated ill will.
See, e.g., State v. Martinez, 290 Kan. 992, 1016, 236 P.3d 481 (2010); State v. Murray,
285 Kan. 503, 517, 174 P.3d 407 (2008). However, these cases should not be read to
suggest that a prosecutor is given carte blanche authority to misstate the law as long as
the misstatements are isolated to the rebuttal, are in response to defense arguments, or are
accompanied by an admonition to follow the law and base the verdict on the evidence.
We are especially reluctant to give these circumstances very much weight when the
prosecutor's comments cross a well-established line that separates appropriate argument
regarding the facts from an inappropriate invocation of sympathy.

The final factor in determining if a prosecutor's misconduct was plain error is
whether the evidence was of such a direct and overwhelming nature that the misconduct
would likely have had little weight in the minds of the jurors. In this regard, we must
consider that a misstatement of the law, whether by the prosecutor or by the court, denies
the defendant a fair trial where the facts are such that the jury could have been confused
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or misled by the misstatement. State v. Magallanez, 290 Kan. 906, 915, 235 P.3d 460
(2010); Henry, 273 Kan. at 619.

We conclude the statements in this case do not rise to the level of depriving
Adams of a fair trial. We are persuaded to this viewpoint for several reasons. First, the
reference to the victim was made in passing and was not repeated or emphasized. Second,
the statement was not as egregious as those made in Henry, Tosh, or Donesay. Third, the
misleading statement that the trial was the only chance the victim had of holding
someone accountable is analogous to a line of cases where we concluded plain error had
not occurred even though the court erroneously instructed the jury that "another trial
would be a burden on both sides." PIK Crim. 3d 68.12 (2005 Supp.). (The current version
of this pattern instruction removes the inappropriate language. See PIK Crim. 3d 68.12
[2009 Supp.]). Although the statement in the instruction differs from the prosecutor's
argument, the implication is similar because both are misstatements that pressure the jury
to reach a verdict. Yet, we held in State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009),
that the misstatement in PIK Crim. 3d 68.12 (2005 Supp.), which came from the judge in
the jury instructions and therefore presumably had more gravitas than an argument by
counsel, did not require reversal. This court reasoned that the jury had been instructed on
the matters that they were to consider and the elements that the State would have to prove
beyond a reasonable doubt. Given that, the statements, while inappropriate, would not
mislead the jury into ignoring their charge. Similarly, we do not see the prosecutor's
misstatement as misleading the jury in light of the instructions, especially when the
comment was made in the context of the prosecutor urging the jury to follow the
instructions.

Finally, there was strong evidence before the jury to support the defendant's
convictions. Although eyewitness accounts of the incident contained variations regarding
punches thrown and the ethnicity of the persons arguing, there was no question that
Adams killed Phanivong. The primary issues of fact argued to the jury were intent and
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self-defense. Regarding self-defense, although Adams testified a knife had been pulled
and that led to his belief that he needed to respond with a deadly weapon, there was no
corroborating eyewitness account or physical evidence to support this testimony, even
though the circumstances were such that a jury could likely conclude that someone,
especially Adams' friends, would have supported his testimony if it was true. Given that,
there was strong support for the State's theory that, even if Adams subjectively believed
he needed to defend himself, this belief was objectively unreasonable, and hence Adams
acted with excessive force.

On appeal, Adams' counsel focuses on the element of premeditation, arguing that
the evidence of this element was weak. This argument ignores Adams' damning
testimony where he described his actions, admitted to making the decision to shoot the
gun, and explained that "if somebody was gonna die over something foolish and silly, I
didn't want it to be me." This testimony presents evidence that Adams thought about and
intended to kill before he fired the fatal shots, albeit as a result of what the jury concluded
was an objectively unreasonable belief in the need for self-defense. In light of this strong
evidence supporting the State's theory, we conclude the misconduct would likely have
had little weight in the minds of the jurors when considering the issues of intent,
premeditation, and self-defense.

Second Statement

The second claim of misconduct alleged by Adams is the following statement
made by the prosecutor during the main portion of the State's closing argument: "Do not,
I implore you, sanction this behavior. You agree to the defendant's theory that this was
self defense you are sanctioning his behavior." Adams argues that in making this
statement, the prosecutor asked the jury to consider issues irrelevant to Adams' guilt or
innocence. Instead, in an attempt to appeal to the juror's sense of community, the jury
was asked to consider whether to generally condone this type of behavior.
15


Adams contends that this case is similar to State v. Finley, 268 Kan. 557, 998 P.3d
95 (2000) (Finley I), where the prosecutor stated the following during closing argument:

"'You know, they say all the time that our police department enforces our laws in
this country, that's not true. It's you guys. We have people in Topeka that make our laws,
we have people in my office that prosecute them, but you all have the job of enforcing
them. You all can find that he committed these crimes and hold him responsible for them.
We cannot tolerate this kind of drug use in our community, especially when a person
dies. You have to find him guilty. Thank you.'" Finley I, 268 Kan. at 571.

The Finley I court found the statement was reversible misconduct because the last
remarks addressed to the jury—"'We cannot tolerate this kind of drug use in our
community, especially when a person dies. You have to find him guilty.'"—were grounds
completely unrelated to the question the jury should have considered. Further, it was not
clear whether the error had little, if any, likelihood of changing the result of the trial.
Finley I, 268 Kan. at 572. The Finley I decision relied, in part, on State v. Ruff, 252 Kan.
625, 847 P.2d 1258 (1993), where the prosecutor committed reversible misconduct by
urging the jury, "'[D]o not allow this conduct to be tolerated in our county.'" Ruff, 252
Kan. at 631. This court found the prosecutor's implication problematic—that if the jury
found Ruff not guilty, her conduct would be tolerated.

In this case, however, in focusing on the statements imploring the jury not to
sanction the behavior, Adams removes the passage from its context, and in context a
different meaning is conveyed. The prosecutor stated:

"Do not, I implore you, sanction this behavior. You agree to the defendant's
theory that this was self defense, you are sanctioning his behavior and the evidence does
not support it. He's asking you to ignore people, ignore evidence, and most importantly,
ignore the law because you do not bring a gun to a fist fight and you do not shoot
16

someone who's only attacking physically even if that's true, and I'm not saying it is.
There's some real dispute there." (Emphasis added.)

In context, the complained of statement is more akin to State v. Finley, 273 Kan.
237, 42 P.3d 723 (2002) (Finley II), relating to the retrial after Finley's first appeal
resulted in a remand and new trial. In that second trial, the prosecutor asked the jury not
to let the defendant "'get away with'" his crime. This court found no misconduct stating:

"[T]he prosecutor's comment in this case was not an appeal to community interests in the
sense that a not guilty verdict would have some sort of negative impact on the
community. Rather, the prosecutor was arguing the defendant should not escape
responsibility for this crime based on his highly implausible story . . . ." Finley II, 273
Kan. at 245.

See State v. Cravatt, 267 Kan. 314, 332, 979 P.2d 679 (1999) (finding no
prosecutorial misconduct for telling jury, "'Don't let a murderer go free because of
these half-baked theories the defense has presented to you.'").

Like the situation in the Finley II case, the prosecutor in Adams' case was
not making some type of appeal to community interests; rather, the prosecutor
was arguing that the evidence did not support Adams' theory of self-defense.
Adams' claim of prosecutorial misconduct fails.

Third Statement

The third claim of misconduct alleged by Adams is the following italicized
statement made by the prosecutor during the rebuttal portion of the State's closing
argument: "We agree on one thing. This sure as heck would have been a different
situation if the defendant had just walked away. He could have gone to the bouncers, he
could have run to the parking garage." (Emphasis added.) Defense counsel objected to
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this statement and, out of the hearing of the jury, argued to the trial judge that the
prosecutor misstated the law by implying that Adams had a duty to retreat. The
prosecutor argued that she was merely responding to defense counsel's statement to the
jury that the situation could have been reversed—that Adams could have been killed and
the State could have been prosecuting someone for Adams' murder.

The judge allowed the prosecutor's rebuttal statement and noted that "[t]he jury
has been instructed, I presume they're going to read the instructions that there is no duty
to retreat." Nevertheless, neither the judge nor counsel specifically reminded the jury of
that instruction.

The prosecutor did somewhat clarify her point, however, when her rebuttal
continued:

"The defendant had a number of options starting with not bringing a gun. That's
what led to [Phanivong's] murder, nothing else. The defendant had options. . . . The bully
in this case was the man who wanted to settle a fight not with words, not even with some
shoving, but with a gun. There's your bully."

In context, the complained of statement was consistent with the State's theory that
Adams used excessive force rather than acted in justifiable self-defense. Additionally, it
should be noted that the prosecutor never actually told the jury that Adams had a duty to
retreat, and the comments were ambiguous with regard to the point in time at which the
prosecutor suggested Adams should have walked away. In other words, she could merely
have been saying that Adams had a choice to walk away when angry words were
exchanged and before he felt a need to defend himself, i.e., before the point in time when
the right to defend himself arose.

Nevertheless, although not clearly or strongly conveying the meaning Adams
seeks to impute, arguably the prosecutor's statement implied a duty to retreat, and such an
18

implication was contrary to the judge's instruction to the jury. See K.S.A. 2010 Supp. 21-
3218(a); PIK Crim. 3d 54.17 (use of force in defense of a person); PIK Crim. 3d 54.17-A
(no duty to retreat). We think this implication is a reasonable one to draw because the
district judge, during the bench conference, discussed the duty to retreat—apparently
because he felt the implication had been made. Hence, we conclude the comments that
were made before the bench conference were improper.

We note that the weak implication left by the ambiguous comments could have
been erased if the judge or prosecutor had reminded the jury of the instruction that
explained there was no duty to retreat or if the judge had sustained the objection. Instead,
an arguably weak suggestion was strengthened when the court overruled the objection.

That being said, as we consider the second prong of our analysis of whether those
comments are plain error, we conclude the statement did not deny Adams a fair trial. As
indicated, the statements were ambiguous and not of a gross or flagrant nature. In
addition, the statement was minimized by the prosecutor's follow-up comment explaining
the State's theory that excessive force was used by Adams. These comments suggest to us
that the earlier statements were not motivated by ill will. Moreover, as discussed above,
the trial court properly gave the self-defense jury instruction which clearly stated there
was no requirement to retreat. See State v. Bunyard, 281 Kan. 392, 406, 133 P.3d 14
(2006) ("[A] prosecutor's misstatement of the law must be considered in the context of
the jury instructions given by the court."). Further, although Adams' testimony contained
some support for his theory of self-defense, there was strong evidence supporting a
criminal conviction. As a result, we conclude that the comments likely had little weight in
the minds of the jurors, and we find the error was harmless.

Additionally, we do not find plain error when we consider the cumulative effect of
the two comments that we have found to be improper. As we have noted, neither point
was dwelled on nor was one misstatement associated with the other. The statements do
19

not become more egregious when considered together. Finally, the comments, even when
considered together, would have little weight in the minds of the jurors. The cumulative
impact of the two statements was harmless under either K.S.A. 2010 Supp. 60-261 or
Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386
U.S. 987 (1967).

1. ORDER OF HOMICIDE JURY INSTRUCTIONS

Next, Adams complains for the first time on appeal about the order in which
certain jury instructions were given. Specifically, he argues that the trial court erred by
instructing the jury on premeditated first-degree murder and its lesser included offenses
in descending order of severity. Adams contends that instructing the jury in this manner
infringed on his constitutional right to the presumption of innocence. This contention
lacks merit.

Standard of Review

Because Adams did not raise this objection to the jury instructions at trial, this
court reviews this issue under the clearly erroneous standard. See K.S.A. 22-3414(3);
Magallanez, 290 Kan. at 918; State v. Vasquez, 287 Kan. 40, Syl. ¶ 6, 194 P.3d 563
(2008). "Instructions are clearly erroneous only if the reviewing court is firmly convinced
there is a real possibility that the jury would have rendered a different verdict if the error
had not occurred." Vasquez, 287 Kan. 40, Syl. ¶ 6; see State v. Ellmaker, 289 Kan. 1132,
1139-40, 221 P.3d 1105 (2009); Salts, 288 Kan. at 265-66.

The jury was instructed on the elements of premeditated first-degree murder, then
intentional second-degree murder, then voluntary manslaughter, and then involuntary
manslaughter. After the premeditated first-degree murder instruction was given, and
20

before the lesser offense elements instructions were given, the trial court gave the
following jury instruction, Instruction 7, consistent with PIK Crim. 3d 68.09:

"The offense of murder in the first degree with which the defendant is charged
includes the lesser offenses of murder in the second degree, voluntary manslaughter, and
involuntary manslaughter.

"You may find the defendant guilty of murder in the first degree, or murder in the
second degree or voluntary manslaughter or involuntary manslaughter or not guilty.

"When there is a reasonable doubt as to which of one or more offense the
defendant is guilty, he may be convicted of the lesser offense only.

"Your Presiding Juror should sign the appropriate verdict form. The other verdict
forms are to be left unsigned."

The trial court also used a transitional statement between the charged offense and
the next less serious of the lesser offenses. For example, the jury was instructed that "[i]f
you do not agree that the defendant is guilty of Murder in the First Degree as charged in
Count I, you should then consider the lesser included offense of Murder in the Second
Degree." Then the trial court instructed on the elements of the lesser offense of
intentional second-degree murder. Similar transitional language was used to instruct the
jury that if it did not agree that Adams was guilty of second-degree murder, it should
consider voluntary manslaughter. If it did not agree that he was guilty of voluntary
manslaughter, it should consider involuntary manslaughter.

According to Adams, these instructions told the jury to convict him of
premeditated first-degree murder without considering the lesser included offenses or that
the jurors should only consider the lesser offenses if they acquitted him of premeditated
first-degree murder. Adams argues that this is contrary to K.S.A. 21-3109, which states
that a defendant is innocent until proven guilty, and that "[w]hen there is a reasonable
21

doubt as to which of two or more degrees of an offense he is guilty, he may be convicted
of the lowest degree only." In Adams' view, this statute requires juries to consider the
charged crime and the lesser included offenses together or in ascending order of severity.

It is important to note, however, that instruction No. 7, quoted above, is nearly
identical to K.S.A. 21-3109. Further, Adams' argument is inconsistent with our decisions
in State v. Lawrence, 281 Kan. 1081, 1091, 135 P.3d 1211 (2006); State v. Roberson, 272
Kan. 1143, 1153-55, 38 P.3d 715 (2002), disapproved on other grounds State v. Gunby,
282 Kan. 39, 144 P.3d 647 (2006); and State v. Trujillo, 225 Kan. 320, 590 P.2d 1027
(1979).

In Trujillo, the earliest of these decisions, the reverse of Adams' argument was
made. In other words, Trujillo argued that the jury need to be instructed regarding "which
lesser offense was the more serious." Trujillo, 225 Kan. at 324. This court stated that in
the interests of promoting an orderly method of considering the possible verdicts, "a trial
court should instruct on lesser included offenses in the order of severity beginning with
the offense with the most severe penalty." Trujillo, 225 Kan. at 324. Nevertheless, this
court concluded that there could have been no prejudice from the free-form instructions
because Trujillo was found guilty of the crime charged. Trujillo, 225 Kan. at 324.

Likewise, in Lawrence, 281 Kan. 1081, this court restated our approval of the PIK
method of ordering the jury's deliberation on lesser included offenses, stating: "'The
pattern instructions offer an orderly method of considering possible verdicts. The pattern
instructions offer a transitional statement that can be inserted at the beginning of the
elements instructions of lesser offenses.' [Citation omitted.]" Lawrence, 281 Kan. at
1091.

In Roberson, 272 Kan. 1143, the defendant raised a similar argument to the one
raised in the present case. The defendant argued that an instruction stating "'[i]f you do
22

not agree that the defendant is guilty'" was erroneous because it required the jury to reject
a conviction on the greater charge before considering lesser included offenses. Roberson,
272 Kan. at 1154. This court rejected that claim because there was nothing in the
instruction requiring a unanimous decision on the greater charge before considering the
lesser charges. We also read all the instructions together, which indicated that the "jury
was fully and accurately informed that it could consider the lesser offenses." Roberson,
272 Kan. at 1155; see State v. Carter, 284 Kan. 312, Syl. ¶ 14, 160 P.3d 457 (2007)
("Instructions that direct jurors to move on to consideration of lesser included offenses
only if they do not agree or if they do not find defendant guilty are not coercive and
correctly state the law."); State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982)
(rejecting defendant's argument that the words "'if you cannot agree'" in jury instruction
coerced the jury into returning a verdict of guilty on the more severe charge).

Here, the jury was instructed, in accordance with PIK Crim. 3d 68.09, that the
charged offense included lesser offenses and that Adams could be found guilty of the
charged offense, a lesser offense, or could be found not guilty. Taking these instructions
together with the elements instructions, the jury was fully and accurately informed that it
could consider the lesser offenses, and the jury had an orderly method for doing so.
Neither the jury instructions nor their order of presentation are clearly erroneous.

3. DEFINING CRIMINAL INTENT AND PREMEDITATION

For Adams' final argument, he contends that three jury instructions on criminal
intent and premeditation impermissibly lessened the State's burden to prove premeditated
first-degree murder. This contention also lacks merit.




23

Standard of Review

As in the previous issue, Adams did not object to these jury instructions at trial.
Therefore, this court reviews this issue under the clearly erroneous standard as well. See
K.S.A. 22-3414(3); State v. Magallanez, 290 Kan. 906, 918, 235 P.3d 460 (2010);
Ellmaker, 289 Kan. at 1139-40.

Adams complains about instruction Nos. 6, 11, and 17, which provided the
following guidance to jurors:

"Instruction No. 6
"The defendant is charged in Count I with the crime of Murder in the First
Degree. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. That the defendant killed Ratsamy Phanivong;
2. That such killing was done with premeditation; and
3. That this act occurred on or about the 23rd day of December, 2007, in
Wyandotte County, Kansas.
"Premeditation means to have thought over the matter beforehand, in order 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."

"Instruction No. 11
"As used in these instructions the word 'intentionally' means conduct that is
purposeful and willful and not accidental. Intentional includes the terms 'knowing,'
'willful,' 'purposeful' and 'on purpose.'
"As used in these instructions the word 'willfully' means conduct that is
purposeful and intentional and not accidental.
"As used in these instructions the words 'heat of passion' means any intense or
vehement emotional excitement which was spontaneously provoked from circumstances.
24

Such emotional state of mind must be of such degree as would cause an ordinary person
to act on impulse without reflection."

"Instruction No. 17
"Ordinarily a person intends all of the usual consequences of his voluntary acts.
This inference may be considered by you along with all the other evidence in the case.
You may accept or reject it in determining whether the State has met its burden to prove
the required criminal intent of the defendant. This burden never shifts to the defendant."

Adams argues that instruction Nos. 6 and 11, viewed together, correctly required
the jury to find that he intended to kill Phanivong willfully, purposefully, and not
accidentally, but instruction No. 17 "[told] the jury to infer that Mr. Adams intended to
kill Mr. Phanivong simply because he committed an act that led to his death." In other
words, the jury could have been led to believe that only the voluntary act of shooting had
to be thought over beforehand, not the killing. Therefore, Adams concludes that
instruction No. 17 created an inference that "destroyed" the State's burden to prove
beyond a reasonable doubt that Adams intended to kill Phanivong.

We disagree because the instructions clearly advised that the intent to kill and
premeditation were separate elements and that the State was required to prove both.
Moreover, Adams' arguments have been consistently rejected by this court. See, e.g.,
Ellmaker, 289 Kan. 1132, Syl. ¶ 4 ("An instruction containing a permissive inference
does not relieve the State of its burden because the State is still required to convince the
jury that an element, such as intent, should be inferred based on the proven facts."); State
v. Stone, 253 Kan. 105, 107, 853 P.2d 662 (1993) (instruction creates permissible
inference rather than improper rebuttable presumption; therefore does not violate due
process rights); State v. Harkness, 252 Kan. 510, 525-27, 847 P.2d 1191(1993)
(instruction allowing jury to draw inference that defendant intended all consequences of
his voluntary acts and that any such inference was required to be considered along with
other evidence did not unconstitutionally shift burden of proof on intent to defendant);
25

see also State v. Hernandez, 44 Kan. App. 2d 524, Syl. ¶ 4, 239 P.3d 103 (2010) ("Under
the facts of this case, the instructions of intent and premeditation as a whole did not
impermissibly lessen the State's burden to prove attempted first-degree murder.").

To prove first-degree murder, the State must prove that the defendant killed the
victim intentionally and with premeditation. K.S.A. 21-3401(a); see State v. Trussell, 289
Kan. 499, 503, 213 P.3d 1052 (2009) (State required to prove specific intent to kill and
premeditation to convict of first-degree murder). The legislature has defined "intentional"
as "purposeful and willful and not accidental." K.S.A. 21-3201(b). Under element 1 of
instruction No. 6, the jury was required to find that Adams intentionally killed
Phanivong. Element 2 stated the premeditation requirement and clearly required that the
killing be premeditated. Thus, contrary to Adams' argument, the instruction left no room
for the jury to conclude that only the act of shooting had to be premeditated.

Further, the definition of premeditation in instruction No. 6, which is identical to
the definition in PIK Crim. 3d 56.04(b), reiterated that the killing had to be premeditated
and that "the concept of premeditation requires more than the instantaneous, intentional
act of taking another's life." (Emphasis added.)

In addition, instruction No. 5, which Adams does not discuss and which
corresponds to PIK Crim. 3d 52.02, clearly informed the jury of the State's burden to
prove every element. Instruction No. 17 did not alter the other instructions' guidance on
the State's burden of proof. As explained in the PIK Committee's Notes on Use for PIK
Crim. 3d 54.01 (on which instruction No. 17 is based), the inference of intent instruction
"is a rule of evidence and does not deal with the required element of criminal intent
necessary for conviction in those cases where criminal intent is a necessary element of
the offense"; see also PIK Crim. 3d 54.01-A, Notes on Use ("This instruction must not be
confused with PIK Crim. 3d 54.01 . . . which is a rule of evidence and does not purport to
charge the jury to find criminal intent necessary for conviction."); State v. Lassley, 218
26

Kan. 752, 756, 545 P.2d 379 (1976) (stating that the inference of intent instruction
pertains to the presumption of intent which is merely a rule of evidence). Moreover, the
"instruction is designed to make it crystal clear that the 'presumption' is only a permissive
inference, leaving the trier of fact free to consider or reject it." PIK Crim. 3d 54.01,
Comment. In fact, instruction No. 17 emphasized: "You may accept or reject [the
inference] in determining whether the State has met its burden to prove the required
criminal intent of the defendant."

In concert with the other instructions given regarding the State's burden, there can
be no real danger that a jury would be misled as to what the State was required to prove.
As given, the instructions referenced above properly and fairly stated the law. The
criminal intent and premeditation jury instructions were not clearly erroneous, and PIK
Crim. 3d 54.01, which states that ordinarily a person intends all of the usual
consequences of his voluntary acts, did not mislead the jury into believing that the State
did not have to prove the defendant premeditated the killing. PIK Crim. 3d 54.01 contains
a permissive inference that may be considered by jurors along with all the other evidence
in the case and does not replace the required element of criminal intent necessary for
conviction in those cases where criminal intent is a necessary element of the offense.
Other instructions clearly informed the jury of the State's burden to prove every element,
including proving premeditation and an intent to kill.

Affirmed.

RICHARD M. SMITH, District Judge assigned.
1

1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court
by art. 3, § 6(f) of the Kansas Constitution, Judge Smith was appointed to hear case No.
101,432 to fill the vacancy on the court created by the retirement of Chief Justice Robert
E. Davis.
27

* * *

BEIER, J., dissenting: I respectfully dissent from my colleagues' disposition of this
case, because I believe the prosecutorial misconduct that all of us agree existed was
unavoidably reversible error.

The only truly contested issue for the jury on the murder charge in this case was
whether defendant Taurus Adams acted in justifiable self-defense during a bar fight or
with premeditation and intent to kill Ratsamy Phanivong. In my view, conflicting
evidence on the behavior of Adams and Phanivong made this issue far from open and
shut.

Under such circumstances, the prosecutor's repeated misstatements of the law and
encouragement of purely emotional responses from members of the jury undermine my
confidence in the verdict. Even if the prosecutor's missteps were not gross and flagrant or
motivated by ill will—and I think the clarity of precedent on their inappropriateness
means that they were—the harmless error test of Chapman v. California, 386 U.S. 18, 22,
87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), cannot be met.

I would therefore reverse and remand for new fair trial.

JOHNSON, J., joins in the foregoing dissent.