State v. Jones

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,420

STATE OF KANSAS,
Appellee,

v.

AUSTIN N. JONES,
Appellant.


SYLLABUS BY THE COURT

1.
Immunity under K.S.A. 21-3219 cannot be invoked for the first time on appeal
after conviction.

2.
A prosecutor commits error if he or she argues that premeditation can occur in an
instant, engages in argument that inflames the passions or prejudices of the jury rather
than urging it to discharge its duty to decide a case on the evidence, or misstates the law
governing the way in which the jury can arrive at a guilty verdict. In this case, one of two
prosecutors delivering closing argument engaged in misconduct only by misstating the
law governing the way in which the jury could arrive at a guilty verdict. However, the
error was not gross and flagrant and was not the product of ill will. Given the substantial
evidence against the defendant in this case, the State has met its burden of proving
beyond a reasonable doubt that the error did not affect the outcome of the trial in light of
the entire record. No reversal is required.

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Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed November 8,
2013. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.

Boyd K. Isherwood, chief appellate attorney, argued the cause, and Nola Tedesco Foulston,
district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Austin N. Jones appeals his jury conviction of two counts of
first-degree murder. He argues for the first time on appeal that under Kansas' version of a
"Stand-Your-Ground Law" in effect at the time of the crime, K.S.A. 21-3219, he is
immune from prosecution. In the alternative, he alleges that prosecutorial misconduct
deprived him of a fair trial.

FACTUAL AND PROCEDURAL BACKGROUND

It is undisputed that defendant Austin N. Jones shot and killed Emmanuel
Delatorre and Jesus M. Esparza in a parking lot outside of Jones' apartment on July 2,
2009.

Jones went to his friend Adrian Rodriguez' apartment to "hang out" in the
afternoon before the shooting. The apartment had been leased in Jones' name; but Jones
allowed Rodriguez to live there after Jones moved into his girlfriend's apartment in the
same complex. Jones had brought a .45 caliber pistol he was interested in selling to
Rodriguez. Although Rodriguez expressed interest, he said he could not afford the gun at
that time. Jones placed the pistol in his waistband.
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Later in the afternoon, sisters Jessica and Lindy Vestering arrived. A short while
later, Josh Johnson and Esparza also arrived. Rodriguez, Johnson, and Esparza were
recording rap songs while Jones and the Vestering sisters played drinking games. The
group drank brandy and beer.

Meanwhile, Delatorre and Johnny Nash were drinking beer at Nash's dad's
residence. The pair then went to a sports bar and consumed more beer. They then decided
to go to another bar, but Delatorre wanted to stop by his apartment first. Delatorre's
apartment was in the same complex as Jones'. Delatorre also wanted to see Esparza,
another resident of the same complex.

Before they reached the apartment complex, Delatorre told Nash that he was upset
with Jones because he had heard that Jones assisted Delatorre's estranged girlfriend in
moving out of the apartment she shared with Delatorre. Delatorre had also heard that
Jones received an entertainment center from the apartment. Delatorre told Nash that he
wanted to ask Jones whether he had helped the girlfriend. If he had, Delatorre said, he
was going to "beat [Jones'] ass."

When Delatorre and Nash reached the apartment complex, they encountered
Rodriguez and Esparza in the parking lot. Rodriguez told Delatorre to go get some beer
from his refrigerator. Delatorre entered the apartment and saw Jones sitting on a couch.

At this point in the chronology of events, the participants' descriptions of what
transpired diverge.

Jones would eventually testify that Delatorre "slammed open" the door to the
apartment and asked, "[W]here the fuck is [Jones?]" Jones described Delatorre as "angry"
4



and saying, "I'm going to beat your ass." Jones said Delatorre tried to fight with him in
the apartment, but Jones stood up and said, "I don't want any problems with you. I don't
want to fight." Jones also claimed that Delatorre continued "cussing [him] out, and saying
he was going to beat [his] ass." According to Jones, this confrontation lasted 2 to 3
minutes.

Jessica Vestering would eventually testify that Delatorre and Jones began talking
with each other "like friends talk" after Delatorre entered the apartment. Although she
could not hear exactly what they were saying, she said, "It wasn't mean or anything like
that." On cross examination, however, she acknowledged that she had told police shortly
after the shooting that Delatorre was "mad" about something. According to her, after the
conversation between Delatorre and Jones, Delatorre announced that he was leaving and
did so. Rodriguez and Esparza, who had followed Delatorre into the apartment, also left.
Jessica Vestering said that she too left the apartment and met her sister and Johnson
outside, leaving Jones alone in the apartment. Jones came outside "almost right after" she
did, and he was holding a gun in his hand. She said that she heard two shots and saw two
flashes of light, but she did not actually see the shooting.

Lindy Vestering would eventually testify that she and Johnson had left the
apartment because she "was getting too drunk." She talked with Nash for a couple
minutes when he and Delatorre pulled into the parking lot. Shortly after that
conversation, as she was walking back to the apartment, Jones walked out of the
apartment and past her. Jones "ignored" her and "didn't even acknowledge" her when she
said something to him. Moments later she heard gunshots.

Rodriguez would eventually testify that, once inside the apartment, Delatorre
began "[a]rguing with [Jones] or something." After Jones and Delatorre argued for "a
little bit," Rodriguez walked Delatorre and Esparza out of the apartment. The three had
5



met Nash in the parking lot, when, "less than a minute" later, Jones came outside.
Rodriguez said that Jones raised his hand, and then Rodriguez heard shots.

Johnson would eventually testify that Delatorre, Esparza, and Nash "circled
around" Jones and "were talking shit." At one point, according to Johnson, Nash reached
for his pocket. Johnson said he heard Nash say, "I'm going to kill you," and Delatorre
punched Jones. Johnson had not told detectives about Nash's statement or Delatorre's
punch. He did tell detectives that Jones looked down at Delatorre and Esparza after
shooting them and said, "[F]uck you." At trial, Johnson said he could not remember this
part of his earlier account.

Nash would eventually testify that he waited outside while Delatorre went into the
apartment. Nash estimated that Delatorre was in the apartment for "about 2 minutes."
When Delatorre came back outside, he told Nash about the argument inside with "that
pussy" Jones. Nash told Delatorre that he should "beat [Jones'] ass" and encouraged him
to fight. Despite this, Nash said that the members of the entire group generally had been
friendly with one another and that they occasionally settled disputes by boxing and then
drinking beer together. According to Nash, Esparza convinced Delatorre to "let it drop"
and said there was no need to fight because "[Jones] is our friend." Nash also said that
Jones appeared and shot Delatorre and Esparza before he, Delatorre, and Esparza could
leave to go to a local bar as the three of them had planned. Nash said he ran away as
Jones shot at him.

Autopsies revealed that Delatorre died as a result of a gunshot wound to the back
of the head, and Esparza died from a gunshot wound to the rear side of the head. The
autopsies also showed that Delatorre had a blood alcohol content between .14 and .17
grams, and Esparza had a blood alcohol content between .07 and .11 grams. Delatorre's
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autopsy did not reveal any bruises, blunt force injury, or other evidence that he was
"fighting with his knuckles."

The State charged Jones with two counts of first-degree murder, see K.S.A. 21-
3401(a)); one count of aggravated assault, see K.S.A. 21-3410(a); and one count of
criminal possession of a firearm, see K.S.A. 21-4204(a)(3).

Jones was the only witness to testify in the defense case. He said he shot Delatorre
and Esparza in self-defense. According to Jones, Delatorre, Esparza, and Nash
surrounded him when he went outside after the argument in the apartment. Delatorre then
punched him in the face, and someone else hit him from behind. After being hit, Jones
said, he reached into his waistband and pulled out the gun he had tried to sell to
Rodriguez. Jones said, "I shot once in front of me and I shot once behind me." He also
said that he pulled out the gun because he was in fear for his life. Jones' testimony at trial
contrasted with the content of his first interview with detectives after the shooting; at that
time he said he could not remember what had happened.

It is undisputed that, after shooting Delatorre and Esparza, Jones fled in his truck,
which hopped a curb and collided with a tree. When an officer arrived at the scene of the
accident, Jones ran. The officer pursued Jones on foot, and, approximately 50 yards from
the truck, Jones stumbled, fell, and was apprehended.

The State's closing arguments were split between two prosecuting attorneys. One
delivered the opening segment and a second, the rebuttal segment.

During the opening segment, discussing premeditation, the first prosecutor said:
"How about when he pulls the five-pound pressure on that trigger to make that gun
discharge[?] How about then[?] Yes." During rebuttal, the second prosecutor said: "How
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long does it take to think over a plan[?] It depends. It depends. That's what premeditation
is about. But in this instance we know he had a gun, we know he walked out and put—
raised his arm and pulled the trigger."

During the first segment, the prosecutor referenced an admitted photograph of
Esparza lying on the ground after the shooting and said: "Jesus Esparza can't be here to
testify about what happened. But his body is crying out evidence to you based on [a
police officer's] ability to take this photograph." Later, during rebuttal, the other
prosecutor said: "There's no sympathy that day when [Jones] pulled th[e] trigger[] three
times. There's no sympathy there. But you can't, and you're legally obligated not to[,]
allow that to influence you."

During rebuttal, the second prosecutor also said: "[B]efore you get all the way to
this lesser excuse kind of homicide, voluntary manslaughter, . . . you have to all agree
that there's no premeditation."

The jury convicted Jones on all four counts. For each of the two first-degree
murder charges, Jones received a hard 25 life sentence.

This appeal follows. Jones' first argument is that he should have been immune
from prosecution under K.S.A. 21-3219(a). His second, alternative argument is that he is
entitled to a new trial because of three incidents of prosecutorial misconduct during
closing argument. We address each of Jones' arguments below; and we affirm the
judgment of the district court.

8



IMMUNITY FROM PROSECUTION

Jones concedes that he "did not specifically move for relief pursuant to K.S.A. 21-
3219(a)" but asserts that "he did clearly raise self-defense as justification in this case, . . .
which in turn invokes the immunity provisions of [the statute]."

The State responds by arguing that Jones cannot seek immunity from prosecution
under K.S.A. 21-3219 for the first time on appeal. It also argues that Jones' briefing of the
issue was inadequate and should lead this court to treat it as abandoned on appeal.

We address the State's last point first because it raises a threshold question. If
Jones abandoned this issue on appeal, we need proceed no further in our analysis. See
State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004) (appellant abandons issue on
appeal by not adequately briefing issue). Our review of Jones' brief persuades us that he
did not abandon the immunity issue. Both sides principally rely on the only directly
applicable authority—the language of the statute itself. Because the necessary timing of
an immunity assertion under K.S.A. 21-3219 raises a question of first impression, it is not
surprising that on-point secondary legal authority for the parties' positions is nonexistent
and thus uncited in their briefs. Parties in the position of those in this case are free (and
encouraged) to direct us to potentially persuasive law from other jurisdictions, but their
failure to do so is not fatal to consideration of their appellate arguments.

The next preliminary point is identification of our standard of review. Because the
district court judge was never called upon to rule on the question before us, strictly
speaking, the phrase "standard of review" is a misnomer. There is no decision before us
to review. But we note that, had the district judge been given an opportunity to weigh in,
our review of that decision on such a question of law would have been plenary. See State
v. Haberlein, 296 Kan. 195, 203, 290 P.3d 640 (2012) (review of question on whether
9



appellate issue preserved unlimited). Likewise, interpretation and construction of statutes
raises questions of law subject to unlimited appellate review. See State v. Bruce, 295
Kan. 1036, 1038, 287 P.3d 919 (2012) (interpretation of statute subject to de novo
review). We thus have no hesitation in applying the same standard of review in this case.

K.S.A. 21-3219 provides:

"(a) A person who uses force which, subject to the provisions of K.S.A. 21-3214,
and amendments thereto, is justified pursuant to K.S.A. 21-3211, 21-3212 or 21-3213,
and amendments thereto, is immune from criminal prosecution and civil action for the
use of such force, unless the person against whom force was used is a law enforcement
officer who was acting in the performance of such officer's official duties and the officer
identified the officer's self in accordance with any applicable law or the person using
force knew or reasonably should have known that the person was a law enforcement
officer. As used in this subsection, 'criminal prosecution' includes arrest, detention in
custody and charging or prosecution of the defendant.

"(b) A law enforcement agency may use standard procedures for investigating the
use of force as described in subsection (a), but the agency shall not arrest the person for
using force unless it determines that there is probable cause for the arrest.

"(c) A county or district attorney or other prosecutor may commence a criminal
prosecution upon a determination of probable cause."

Only two prior cases before this court have addressed immunity under K.S.A. 21-
3219.

In the first, McCracken v. Kohl, 286 Kan. 1114, 1118, 191 P.3d 313 (2008), this
court explained that "a prerequisite to immunity [under K.S.A. 21-3219] is that the use of
force be justified by K.S.A. 21-3211 [defense of person], K.S.A. 21-3212 [defense of
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dwelling], or K.S.A. 21-3213 [defense of property other than a dwelling]." K.S.A. 21-
3211 obviously is the prerequisite that Jones would have had the district court apply in
this case. But, other than laying this floor under our analysis, McCracken is otherwise
unhelpful on today's question.

In our second case, State v. Ultreras, 296 Kan. 828, 295 P.3d 1020 (2013),
defendant Manuel Ultreras appealed his conviction of three counts of aggravated battery.
The charges stemmed from an altercation in which Ultreras, working security at a bar, hit
three other men with a metal baton. Before trial, Ultreras filed a motion to dismiss,
claiming immunity from criminal prosecution under K.S.A. 21-3219. The district court
held a hearing on the motion, and, after considering arguments from the parties,
determined that Ultreras had the burden to prove by a preponderance of the evidence that
his use of force was necessary in order to qualify for immunity under the statute. This
court disagreed. We held that the standard of proof for whether a defendant is entitled to
immunity from criminal prosecution pursuant to K.S.A. 21-3219 is probable cause, and
the State bears the burden of establishing that force was not justified as part of the
probable cause determination. 296 Kan. at 845.

Under Ultreras, had Jones filed a pretrial motion to dismiss based on a claim of
immunity under K.S.A. 21-3219, it is clear that the State would have borne the burden of
establishing that force was not justified as part of the probable cause determination
required under K.S.A. 21-3219(b) and (c). See Ultreras, 296 Kan. 828, Syl. ¶¶ 1, 2;
McCracken, 286 Kan. at 1118. But Jones filed no such motion. Ultreras does not answer
whether he could assert immunity under K.S.A. 21-3219 for the first time on direct
appeal of his conviction.

The language of K.S.A. 21-3219 also does not clearly answer the question before
us. See Ultreras, 296 Kan. at 842 (statute provides little guidance on procedure for
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application); see also State v. Marks, 297 Kan. 131, 145, 298 P.3d 1102 (2013) (plain
language of statute provides starting point for statutory interpretation). Jones argues that
this appeal is a continuation of his "criminal prosecution," as that phrase is defined in
K.S.A. 21-3219(a)—"'[C]riminal prosecution' includes arrest, detention in custody and
charging or prosecution of the defendant"—and thus he can be held to be immune from
it, as well as the law enforcement and district court proceedings that led to it. We
disagree. The statutory definition of "criminal prosecution" to include a "prosecution"
tells us nothing. And this appeal, as was pointed out during oral argument, was initiated
by Jones, not by the State. The State's "prosecution" of Jones ended with his sentencing.

Jones also argues that claiming self-defense was enough to invoke K.S.A. 21-3219
immunity. This self-executing method of invocation certainly is not laid out in the statute.
Jones may attempt to divine it from this court's third syllabus paragraph in McCracken,
which states: "To establish that a use of force is a justifiable defense, so as to invoke the
immunity of K.S.A. 21-3219, the party claiming immunity must pass both a subjective
and an objective test." 286 Kan. 1114, Syl. ¶ 3. But this syllabus phrase cannot be
stretched to Jones' purposes here. It gave content to the prerequisites for claiming K.S.A.
21-3219 immunity; it did not dictate procedure or the lack of it.

Jones also attempts to draw an analogy to qualified immunity for government
officials. But, to the extent such a comparison is sound, an issue we do not decide today,
qualified immunity is waived if it is not raised early in a case as an affirmative defense.
See Bentley v. Cleveland County Bd. of County Com'rs, 41 F.3d 600, 604-05 (10th Cir.
1994) (citing, e.g., Kennedy v. City of Cleveland, 797 F.2d 297, 300 [6th Cir. 1986]
["'[I]mmunity, whether qualified or absolute, is an affirmative defense which must be
affirmatively pleaded . . . .'"], cert. denied 479 U.S. 1103 [1987]). As we recognized in
McCormick v. Board of Shawnee County Comm'rs, 272 Kan. 627, 35 P.3d 815 (2001):

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"'Qualified immunity is "an entitlement not to stand trial or face the other burdens of
litigation." [Citation omitted.] The privilege is "an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial." [Citation omitted.] As a result, "we repeatedly have
stressed the importance of resolving immunity questions at the earliest possible stage in
litigation." [Citation omitted.]'" 272 Kan. at 637 (quoting Saucier v. Katz, 533 U.S. 194,
200-01, 121 S. Ct. 2151, 150 L. Ed. 2d 272 [2001]).

Jones also makes a legislative purpose argument. See State v. King, 297 Kan. 955,
305 P.3d 641, 655 (2013) (when statutory language ambiguous, court may consider
background considerations that speak to legislative purpose and employ canons of
statutory construction). Before enactment of K.S.A. 21-3219 in 2006, he argues, criminal
defendants could already assert self-defense. Thus the legislature enacted K.S.A. 21-3219
to provide additional protection. K.S.A. 21-3219 "must be construed to allow persons to
use force in self-defense without fear of prosecution and conviction . . . ." Jones' assertion
is consistent with the general purpose of recognized immunities. See Siegert v. Gilley,
500 U.S. 226, 232, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991); Ultreras, 296 Kan. at 840
("'This aspect of the new law is meant to provide not merely a defense against liability,
but protection against the burdens of prosecution and trial as well.'") (quoting Rodgers v.
Com., 285 S.W.3d 740, 753 [Ky. 2009]).

But, in Ultreras, we identified the additional protection that the statute afforded an
accused:

"Generally, a detached Kansas magistrate considering whether to issue a warrant or
summons merely determines 'that there is probable cause to believe both that a crime has
been committed and that the defendant has committed it.' K.S.A. 22-2302(1). Under
K.S.A. 21-3219, however, once a defendant raises justified use-of-force immunity before
a court, a probable cause determination must also include a determination that the
defendant's use of force was not justified under K.S.A. 21-3211, K.S.A. 21-3212, or
13



K.S.A. 21-3213. Hence, the statute as written with a probable cause standard adds an
additional requirement and is meaningful." Ultreras, 296 Kan. at 844.

And this additional protection can be realized only if immunity under K.S.A. 21-
3219 is asserted as early as possible prior to trial. In other words, to the extent that Jones
urges us to look at the purpose of the statute to construe the procedure to be followed, his
argument that immunity can be raised for the first time on appeal is self-defeating. If the
purpose of the statute is to protect individuals from the burdens of prosecution and
conviction, that purpose cannot be effected when immunity is raised for the first time on
appeal. By that time, prosecution and conviction have occurred. The burdens they impose
cannot be lifted.

We also note that, although the question of whether K.S.A. 21-3219 immunity
may be invoked for the first time on appeal is one of law, the determination to be made
on the existence of probable cause under subsections (b) and (c) once the statute has been
invoked necessitates a factual inquiry and determination. District courts are the places to
hold evidentiary hearings. Appellate courts are not. Indeed, Jones' case, with its many
alcohol-imbibing witnesses and their conflicting stories, is an excellent example of a
situation in which all of the factual examination and credibility weighing abilities and
expertise of district courts would be well used.

The State directs the court's attention to K.S.A. 22-3208(4), which provides that
"consent to trial upon a complaint, information or indictment shall constitute a waiver of
defenses and objections based upon the institution of the prosecution . . . ." The only
sensible reading of K.S.A. 21-3219 is that it creates an affirmative defense to which
K.S.A. 22-3208(4) applies.

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Thus, on the only question before us today, we hold: If a defendant believes he or
she is entitled to Stand-Your-Ground immunity under K.S.A. 21-3219, then the defense
must be asserted before trial opens or a dispositive plea is entered. Such an assertion is a
timely trigger of the State's probable cause burden. A defendant who waits to invoke
K.S.A. 21-3219 immunity until appeal after conviction simply waits too long. By that
time, the facts and the defendant's guilt beyond a reasonable doubt have been established.
In Jones' situation in particular, the jury rejected his claim of self-defense. This means the
State has already borne an evidentiary burden far higher than the probable cause burden
imposed upon it by the Stand-Your-Ground statute.

PROSECUTORIAL MISCONDUCT

Jones' alternative argument on appeal is that the prosecutorial team committed
reversible misconduct by implying that premeditation can occur instantaneously, by
appealing to the passions of the jury, and by misstating the law on how the jury could
reach a guilty verdict.

Our standards governing review of prosecutorial misconduct claims have often
been recited:

"Review of prosecutorial misconduct claims involves a two-step process. The
appellate court first decides whether the comments were outside the wide latitude a
prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct.
Second, if misconduct is found, the court must determine whether the improper
comments prejudiced the jury and denied the defendant a fair trial."

"The case of State v. Tosh, 278 Kan. 83, 93, 97, 91 P.3d 1204 (2004), identified
three factors to consider in determining if the prosecutorial misconduct so prejudiced the
jury against the defendant that a new trial should be granted: (1) whether the misconduct
15



was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's
part; and (3) whether the evidence against the defendant was of such a direct and
overwhelming nature that the misconduct would likely have little weight in the minds of
the jurors. Under Tosh, none of these three factors is individually controlling. And before
the third factor can ever override the first two factors, an appellate court must be able to
say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386
U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), have been
met." State v. Bridges, 297 Kan. 989, Syl. ¶¶ 14, 15, 306 P.3d 244 (2013).

We have also recently reviewed the two harmlessness tests and how they intersect
in a prosecutorial misconduct analysis. Under the constitutional harmless error analysis
defined in Chapman,

"'the error may be declared harmless where the party benefitting from the error proves
beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., where there is no reasonable
possibility that the error contributed to the verdict.' State v. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

"Under the harmless error analysis defined in K.S.A. 60-261, the test is equally
clear. The court 'determine[s] if there is a reasonable probability that the error did or will
affect the outcome of the trial in light of the entire record.' [Citation omitted.]

"Under both standards, the party benefiting from the error . . . bears the burden of
demonstrating harmlessness. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013).
That burden is higher when the error is of constitutional magnitude. See Herbel, 296 Kan.
at 1110 ('Clearly, the party benefiting from the constitutional error must meet a higher
standard to show harmlessness than the standard required in nonconstitutional error.')."
Bridges, 306 P.3d at 260.

16



In addition, when

"both the constitutional and nonconstitutional error clearly arise from the very same acts
and omissions, we logically begin with our harmlessness analysis of the constitutional
error. . . . [I]f we decide the constitutional error is not harmless and reverse the
convictions, there is no point in analyzing whether the State met the lower standard for
harmlessness under K.S.A. 60-261." Bridges, 306 P.3d at 262 (citing Herbel, 296 Kan. at
1111).

Premeditation

Jones' first claim of prosecutorial misconduct is that the State improperly implied
that premeditation can be instantaneous. This court has repeatedly found reversible error
in such cases. See State v. Hall, 292 Kan. 841, 849, 257 P.3d 272 (2011); see also State v.
Morton, 277 Kan. 575, 585, 86 P.3d 535 (2004) (prosecutor committed reversible
misconduct when she pantomimed firing of gun, said: "One squeeze of a trigger is all it
takes."); State v. Holmes, 272 Kan. 491, 497-500, 33 P.3d 856 (2001) (prosecutor
committed reversible misconduct: "Ladies and gentlemen, premeditation can occur in an
instant. That's the law in the State of Kansas."). Premeditation is more accurately
described as a "'"state of mind"' that relates 'to a person's reasons and motives for acting
as he or she did.'" Hall, 292 Kan. at 850 (quoting State v. Doyle, 272 Kan. 1157, 1162, 38
P.3d 650 [2002]).

"'"'Premeditation means to have thought the matter over beforehand, in other words, to
have formed the design or intent to kill before the act. Although there is no specific time
period required for premeditation, the concept of premeditation requires more than the
instantaneous, intentional act of taking another's life.'" State v. Martis, 277 Kan. 267, 301,
83 P.3d 1216 (2004) (quoting State v. Hebert, 277 Kan. 61, 88, 82 P.3d 470 [2004]).
Several factors may give rise to an inference of premeditation, including: (1) the nature
of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before and
17



after the killing, (4) threats and declarations of the defendant before and during the
occurrence, and (5) the dealing of lethal blows after the deceased was felled and rendered
helpless. State v. Scott, 271 Kan. 103, 109, 21 P.3d 516, cert. denied 534 U.S. 1047
(2001). Moreover, premeditation and deliberation may be inferred from the established
circumstances of a case, provided the inference is a reasonable one. State v. Scott, 271
Kan. at 108; see also State v. Jones, 279 Kan. 395, 404, 109 P.3d 1158 (2005).' State v.
Morton, 283 Kan. 464, 474-75, 153 P.3d 532 (2007)." Haberlein, 296 Kan. at 205.

Jones contends that the prosecutors' references to his "five-pound pressure on [the]
trigger" and to Jones raising his arm and pulling the trigger effectively reduced the time
necessary for premeditation to the time in which it takes to pull the trigger. Although
neither prosecutor used the word "instantly," Jones believes the message conveyed was
the same.

The State argues that the facts of this case are distinguishable from our earlier
cases in which we held there was reversible prosecutorial misconduct, because neither
prosecutor stated outright or gestured unmistakably to communicate that premeditation
can occur in an instant. In its view, the references to the trigger being pulled, when
viewed in context, were not error.

In this case, we agree with the State.

The first prosecutor started off his premeditation discussion by stating three times
that premeditation required Jones to have thought the matter over before the killing. The
prosecutor then identified key factual intervals at which Jones may have had the
opportunity to do so. The prosecutor posed a rhetorical question: "At what point did the
defendant think this over in his mind?" Jones' placement of a "five-pound pressure on that
trigger" marked the end of the prosecutor's string of factual intervals. In context, it is
18



clear to us that the first prosecutor argued only that Jones had plenty of opportunity to
premeditate the killings well before firing the gun at the victims.

The second prosecutor's comment on premeditation also did not diminish it.
Informing the jury that the time it takes to think over a plan "depends" and then outlining
three crucial facts is not misconduct. See Hebert, 277 Kan. at 86-87 (premeditation
"'merely requires a decision to act, and in this case, a decision to pull the trigger'" not
outside considerable latitude given prosecutor, considering prosecutor's entire argument).
Moreover, the second prosecutor explicitly stated at the outset of her rebuttal that
premeditation "has to be something more than an instantaneous act."

Because we see no error in the two prosecutors' statements about premeditation,
we need not consider harmlessness at this point.

Passions of the Jury

Jones' second line of attack on the State's closing argument asserts that the State’s
two prosecutors inflamed the passion of the jury and improperly invoked sympathy for
the victims.

A jury must decide a case on evidence and controlling law, and not on sympathy,
emotion, or prejudice. See State v. Brown, 295 Kan. 181, 212-13, 284 P.3d 977 (2012);
State v. Minski, 252 Kan. 806, 813-14, 850 P.2d 809 (1993) (citing Com. v. Marshall, 523
Pa. 556, 568 A.2d 590 [1989]). Thus a prosecutor has a duty to refrain from making
improper, leading, inflammatory, or irrelevant statements to the jury. State v. Scott, 286
Kan. 54, 77, 183 P.3d 801 (2008). "[A] prosecutor must guard against appeals to jurors'
sympathies or prejudices." Hall, 292 Kan. at 853; see State v. Friday, 297 Kan. 1023, Syl.
¶ 5, 306 P.3d 265 (2013) (prosecutor may comment on admitted evidence as long as the
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remarks accurately reflect evidence; accurately state law; do not inflame passions,
prejudices of jury; do not divert jury from its duty to decide case on fact, law).

Jones challenges the first prosecutor's statement that Esparza's body was "crying
out evidence." This comment was isolated and did not rely on facts not in evidence. See
State v. Hernandez, 292 Kan. 598, 604, 257 P.3d 767 (2011) (prosecutor's comment
about involvement in investigation of case improper, harmless). The prosecutor was
making a point about the position of Esparza's body, which showed that he was standing
when he was shot and that he was shot from behind. This was well within the wide
latitude granted a prosecutor in discussing the evidence.

Read in context, the second prosecutor's statement about sympathy also does not
trouble us. The prosecutor told jurors they were required "to eliminate . . . feelings of
sympathy of someone who sits before you and maybe they look young to you. Or maybe
they have been looking at you the whole time and you just—you want to be
sympathetic." This appears to have been addressed to any sympathy the jurors might feel
for Jones. The prosecutor was correctly reminding the jurors of their duty to base their
decision on the evidence rather than emotion. This was not improper commentary. See
State v. Williams, 42 Kan. App. 2d 725, 727-28, 216 P.3d 707 (2009), rev. denied 290
Kan. 1104 (2010) (not "inherently pernicious to tell jurors not to do things they should
not do" in context of no-sympathy jury instruction). We do note, however, that the
Pattern Instructions for Kansas no longer suggest inclusion of a no-sympathy instruction
in the usual criminal case. See State v. Aguero-Hernandez, No. 106,079, 2012 WL
2149793, at *5 (Kan. App. 2012) (unpublished opinion), rev. denied 296 Kan. ___
(2013). This may counsel caution for the State in this type of argument.

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Misstatement of Law

Jones' final argument on prosecutorial misconduct focuses on the way the second
prosecutor explained how the jury could reach a guilty verdict. Specifically, the
prosecutor said: "[B]efore you get all the way to this lesser excuse kind of homicide,
voluntary manslaughter, . . . you have to all agree that there's no premeditation." Jones
claims that the prosecutor incorrectly told jurors they had to reach a unanimous acquittal
on first-degree murder before considering voluntary manslaughter and thus misstated the
law.

Jones is correct. See State v. Scott-Herring, 284 Kan. 172, 178-79, 159 P.3d 1028
(2007); State v. Hurt, 278 Kan. 676, 682, 101 P.3d 1249 (2004) (improper for prosecutor
to state unanimous acquittal required before considering lesser included offenses). The
second phrase of the prosecutor's statement should have been "at least one of you must
believe there is no premeditation" or an equivalent, see Hurt, 278 Kan. at 682, rather than
"you have to all agree that there's no premeditation." The prosecutor communicated
exactly the opposite, telling the jurors that each had to reject premeditation before a lesser
included offense could be considered. This was error. Unanimity is required for
conviction but not for acquittal.

Because of this error, we must examine harmlessness, and we do so first under the
constitutional standard. See Bridges, 306 P.3d at 262. Jones argues, per Tosh, that the
prosecutor's misconduct was gross and flagrant and the product of ill will.

"In determining whether prosecutorial misconduct was gross and flagrant, among
the things an appellate court considers are whether the comments were repeated,
emphasized improper points, were planned or calculated, or violated well-established or
unequivocal rules."

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"In determining whether prosecutorial misconduct was motivated by ill will,
among the things an appellate court considers are whether the conduct was deliberate,
repeated, or in apparent indifference to a court's ruling." Bridges, 306 P.3d 244, Syl. ¶¶
18, 19.

Before making her incorrect statement of law about the jury's process, the second
prosecutor correctly stated: "[I]f you cannot agree [on the existence of premeditation],
only then do you go to second and determine whether or not the State has proven second-
degree murder." See Hurt, 278 Kan. at 682 (quoting State v. Korbel, 231 Kan. 657, 661,
647 P.2d 1301 [1982]) (words "'if you cannot agree,'" when used to preface instruction on
lesser charge, do not require unanimous acquittal of greater charge). "Where a prosecutor
makes both a misstatement of the law and a correct recitation of the applicable law in a
closing argument, we have been loath[] to characterize the misstatement as being gross
and flagrant misconduct. [Citations omitted.] Neither does such a situation support a
finding of ill will." State v. Naputi, 293 Kan. 55, 62, 260 P.3d 86 (2011). We remain loath
to characterize the prosecutor's error here as either gross and flagrant or the product of ill
will.

Our constitutional harmlessness analysis next turns to the State's argument that
there is no reasonable possibility the misstatement of law contributed to the outcome of
the trial. See Ward, 292 Kan. 541, Syl. ¶ 6. As the State points out, the evidence against
Jones was substantial. Two witnesses testified that Jones rushed past them, and moments
later they heard gunshots. Nash testified that he saw Jones suddenly appear and shoot
both victims in the back of the head. The coroner testified that both victims died from
gunshot wounds to the back of the head. Jones fled after the shooting, suggesting a
culpable mental state rather than a subjective belief that the shooting was necessary to
defend himself, undercutting his theory of the case. We hold, under the Chapman
standard for harmless constitutional error, the State has met its burden of proving
22



"beyond a reasonable doubt that the error complained of . . . did not affect the outcome of
the trial in light of the entire record, i.e., . . . there is no reasonable possibility that the
error contributed to the verdict." See Ward, 292 Kan. 541, Syl. ¶ 6. Given this holding,
we need not determine whether the State has also met its burden of showing harmless
error under the lower threshold articulated in K.S.A. 60-261. See State v. Ochs, 297 Kan.
1094, 306 P.3d 294, 302 (2013) (citing Herbel, 296 Kan. at 1110-11).

CONCLUSION

Immunity under K.S.A. 21-3219 cannot be invoked for the first time on appeal
after conviction. Further, in this case, one prosecutor's single misstatement of law during
the rebuttal portion of closing argument, although error, was harmless. It did not deprive
defendant Austin N. Jones of a fair trial.

The judgment of the district court is affirmed.