State v. Nesbitt

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 116,550

STATE OF KANSAS,
Appellee,

v.

KASEY L. NESBITT,
Appellant.


SYLLABUS BY THE COURT


1.

The res gestae of a crime includes the acts committed before, during, or
after the happening of the principal occurrence, when those acts are so closely
connected with the principal occurrence as to form, in reality, a part of the
occurrence. Deaths caused within the time and circumstances of an underlying
felony's res gestae qualify as felony murders. The focus is on whether the act
causing the death occurred during the res gestae of the underlying felony; the
death resulting from that act need not have occurred immediately.

2.

Evidence of felony murder is sufficient when testimony supports the State's
theory that a victim's death 21 days after a rape was caused by blood clots that
formed because of the victim's immobility, which, in turn, was precipitated by her
pain from injuries suffered in the attack.
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3.

A direct causal connection exists between the crime underlying felony
murder and the death that follows from it unless an extraordinary intervening
event supersedes the defendant's act and becomes the sole legal cause of death. An
intervening event does not qualify as extraordinary if it was foreseeable.

4.

Sufficient evidence supports a defendant's conviction on felony murder,
including the foreseeability of a rape victim's death 21 days after the attack, when
injuries the victim suffered caused pain that immobilized her, giving rise to
development of fatal blood clots.

5.

Sufficient evidence supports a defendant's conviction of aggravated burglary on
the theory that he or she entered a dwelling, in which there was a human being, with
intent to commit a sexually motivated crime therein when the jury heard testimony that,
with the exception of a mutilated back door through which the attacker entered and a
disorganized master bedroom where the rape occurred, the house was tidy and orderly;
there were no signs of someone entering the house to commit theft, e.g., drawers and
cabinets left open or their contents disturbed; neither responding officers nor crime scene
investigators noticed anything missing or moved, and valuable items in open view were
left behind by the attacker; and the victim was raped during the burglary.




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6.

Comments from a prosecutor in closing arguments that inflame the passions or
prejudices of a jury are prohibited. Such comments distract the jury from its mission to
decide the case on the evidence and controlling law. A prosecutor's description of a 100-
year-old victim as a "treasure" to her family is erroneous, but, in the context of this case,
harmless.

7.
A race-switching exercise jury instruction, worded as suggested by the defendant
in this case, is not legally appropriate in Kansas. Such an instruction tells jurors to deviate
from their legal responsibility to disregard anything but the facts and the controlling law
when arriving at their verdict in a case.

8.

Cumulative error may require reversal of a defendant's conviction if—under the
totality of the circumstances—more than one error substantially prejudiced the defendant
and denied the defendant the right to a fair trial. The doctrine of cumulative error does
not apply when only one error has been detected.


Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed June 1,
2018. Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, argued the cause, and Samuel
Schirer, of Kansas Appellate Defender Office, was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
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The opinion of the court was delivered by

BEIER, J.: Defendant Kasey L. Nesbitt appeals his convictions for felony murder,
rape, and aggravated burglary, arising from a violent and ultimately fatal attack on 100-
year-old M.S. in her home.

Nesbitt raises five issues on appeal: (1) insufficient evidence to support felony
murder; (2) insufficient evidence to support aggravated burglary; (3) prosecutorial error;
(4) error in refusal to give a requested jury instruction on a race-switching exercise; and
(5) cumulative error.

We reject these challenges and affirm Nesbitt's convictions.

FACTUAL AND PROCEDURAL HISTORY

The attack on M.S. came to light in the early morning hours of September 30,
2014, when she knocked on her neighbor's door. The neighbor's son answered the knock,
finding a visibly "distressed" and "shaking" M.S. wrapped only in a bathrobe. M.S. said
someone was breaking into her house. After letting M.S. inside and checking M.S.'s
house for intruders, the son called police.

On arrival, officers of the Wichita Police Department also checked M.S.'s house
for intruders. They found none but noted that the lock on the back door had been
damaged and glass broken out. Although the master bedroom appeared disorganized, the
officers did not notice anything obvious that had been disturbed or taken from the rest of
the house. The officers interviewed M.S., noting that her right wrist was bruised and
swollen. M.S. gave the officers her name, consented to a search of her home, and was
taken to the hospital.
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Crime scene investigators took photos of the back door of M.S.'s house, observing
that the frame was lying on the ground in two pieces, surrounded by glass and sheetrock
dust. Both of the door's strike plates had been knocked out, and one of them was lying on
the floor. Like the officers before them, the investigators observed that the house was tidy
and orderly, with the exception of the damage to the back door and some disarray in the
master bedroom, where the attack had taken place.

The bedding in the master bedroom had been pulled back, and a pillow was lying
on the floor next to the bed. As the crime scene investigators collected evidence, they saw
jewelry; car keys; and a purse containing a wallet, medications, and cash in open view.
They also did not detect "evidence that anything was moved" or missing in the rest of the
house. Three items from outside M.S.'s house were collected and photographed: a Dr.
Pepper can in the alley behind it, a cigarette butt on its west side near the back door, and
a switchblade in its backyard. Although the can and switchblade were tested for
identifiable fingerprints, none were found.

A sexual assault nurse examiner (SANE) saw M.S. at the hospital and collected
evidence. During the nurse's examination, M.S. could not be moved without causing her
great pain. She also complained of severe pain while lying still. M.S. particularly cited
great pain in her right arm, bottom, and back. The nurse made note of several injuries,
including "extensive bruising beginning at [M.S.'s] head to her toes," indicating recent
blunt force trauma. The nurse would later testify that M.S. had a fracture of her lower
right arm that caused swelling.

The nurse also discovered substantial injuries to M.S.'s genital area. M.S. had a 5
millimeter by 5 millimeter abrasion on her labia minora, which, the nurse later testified,
was associated with trauma. In addition, M.S. had bleeding under the tissue in the area
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where she urinated. M.S. also had "a large hole" just below her vaginal opening. M.S.'s
vagina was swabbed for evidence, and the swabs were turned over to police.

After the SANE exam was finished, M.S. was admitted to the hospital, where she
told her attending physician that she had "generalized pain all over" and had an especially
hard time walking because her "bottom [was] hurting all the time." Hospital caregivers
also discovered M.S. had compression fractures in her lower spine, which were likely to
be attributable to her attack and considered the likely source of her lower back pain. M.S.
required a significant amount of help to move; pain from her injuries limited her ability to
move herself. Doctors did not see improvement in M.S.'s mobility during her two-week
hospital stay. Rather, they observed M.S. become weaker and suffer increasing trouble
with mobility.

At the end of the two weeks, M.S. was transferred to a skilled nursing facility for
physical therapy. She died 6 days later—approximately 21 days after the attack.

The coroner, Dr. Jamie Oeberst, would eventually confirm M.S.'s extensive
bruising and the fractures noted by the hospital staff and the substantial reduction in her
mobility that followed from the pain these injuries produced. According to Oeberst,
M.S.'s reduced mobility ultimately contributed to the formation of blood clots in her legs,
which traveled to M.S.'s lungs, killing her. Oeberst estimated that the clots had formed
three to seven days before M.S.'s death. "[T]he clots in her legs that then went to her
lungs is her cause of death. And the reason she developed those clots in her legs was
because—was a result of the immobilization after the assault." Oeberst certified M.S.'s
death as a homicide, with the attack, obesity, dementia, and advanced age contributing to
her death. Oeberst acknowledged that it was possible, however, that the blood clots could
have formed even if the attack on M.S. had not occurred.

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M.S. was never able to give a complete description of the person who attacked
her. She was able to say only that the attacker was a man. She told her daughter-in-law
and a nurse, "I guess you could say I was raped," and, "[W]ell, I guess you could call it a
rape." When a hospital psychiatrist asked M.S. if she knew why she was in the hospital,
he testified, M.S. told him she was raped. But, at other times, M.S. said she did not know
why she had been hospitalized. The psychiatrist diagnosed M.S. with dementia, primarily
due to her advanced age.

Police did not have a suspect until DNA testing of M.S.'s SANE examination
swabs revealed a local-and state-database match to a 2002 sample taken from Nesbitt
because of another incident. Before M.S. died, the State charged Nesbitt with rape and
aggravated burglary. It added a charge of felony murder after her death.

At trial, the State relied exclusively on its DNA match evidence to link Nesbitt to
the crimes. Forensic scientist Sarah Geering testified that a major contributor and a minor
contributor of DNA were found on the swab taken from M.S. The minor contributor's
DNA profile was consistent with M.S.'s, leaving only the major contributor in the form of
seminal fluid. Geering testified the lab was able to generate a "full profile at all of the
markers that we test for." The major contributor's profile matched Nesbitt's. Given that
match, the State did not arrange for DNA testing of the Dr. Pepper can, cigarette butt, and
switchblade, or of a Walgreens receipt also found on M.S.'s property.

At the conclusion of the evidence at trial, Nesbitt requested that the district judge
give the following "race switching" instruction to the jury:

"It is natural for human beings to make assumptions about the parties and
witnesses in any case based on stereotypes. Often we may rely on stereotypes without
even being aware that we are doing so. As a juror you must not make assumptions about
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the parties and witnesses based on their membership in a particular racial group. You
must not assume that a particular interpretation of a person's behavior is more or less
likely because the individual belongs to a particular racial group. Reliance on stereotypes
in deciding real causes is prohibited because every accused is entitled to equal protection
of the law, and because racial stereotypes are historically, and notoriously, inaccurate
when applied to any particular member of a race.

"To ensure that you have not made any unfair assessments based on racial stereo
types, you should apply a race-switching instruction exercise to test whether stereotypes
have affected your evaluation of the case. 'Race Switching,' involves imagining the same
events, the same circumstances, the same people, but switching the races of the particular
witnesses. For example if the accused is African-American and the accuser/victim is
white, you should imagine a White accused and a black accuser/victim.

"If your evaluation of the case is different after engaging in race-switching, this
suggests a subconscious reliance on stereotypes. You must then reevaluate the case from
a neutral, unbiased perspective."

The State objected because the case against Nesbitt was primarily built upon DNA
evidence, and the court denied Nesbitt's request.

During closing arguments, the prosecutor detailed the decline in M.S.'s quality of
life after the attack. He then stated:

"The aggravated burglary, there are two counts. The first one set forth in
instruction six. I believe the second one is instruction seven . . . . The bottom line is what
we'd have to prove, you can read it for yourself . . . he entered the home without authority
with the intent to—and there's two different ways to look at this, two alternative, either
theft or a rape therein. And it happened on or about the date alleged." (Emphasis added.)

During the State's rebuttal, the prosecutor commented on M.S.'s
relationship with other members of her family:
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"Mr. Bennett described to you kind of this picture of [M.S.] in her house before
the attack. A hundred-year-old family member appeared to be a gift to this family. They
kind of treasured this kind of thing that they had. They had this older family member. She
was happy. She was at home. And look at the change that occurs from that attack. Look
how different that life became.

"The only mistake I would ask you to consider in this case is that [M.S.] did not
get to live out her final days on her terms. The defendant took that away from her."

Defense counsel objected to this argument, asserting that these statements impermissibly
asked the jury to "decide this case based on the sympathy for [M.S.'s] family." The
district judged overruled the objection, not stating a rationale. The judge told the jury,
both contemporaneously with the objection and as part of the instructions generally, that
the statements made by counsel during closing arguments did not constitute evidence.

The jury found Nesbitt guilty of all three crimes. His aggravated burglary
conviction was based on the alternative charge of entry into M.S.'s home with intent to
commit rape. Nesbitt was sentenced to life without the possibility of parole for 25 years
for the felony murder and consecutive imprisonment of 285 months for the rape and 34
months for the aggravated burglary.

DISCUSSION

Sufficiency of the Evidence

Our standard of review for a sufficiency of the evidence claim is a familiar one,
often repeated:

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"When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations." State v. Lloyd,
299 Kan. 620, 632, 325 P.3d 1122 (2014).

Nesbitt challenges the sufficiency of the evidence supporting two of his three
convictions, felony murder and aggravated burglary.

Felony Murder

Nesbitt asserts two infirmities in the State's evidence of felony murder. First, he
argues that M.S.'s death 21 days after the attack did not occur within the res gestae of the
underlying felony of rape. Second, he argues there was no direct causal connection
between the rape and M.S.'s death.

Felony murder is statutorily defined as the killing of a human being "in the
commission of, attempt to commit, or flight from any inherently dangerous felony."
K.S.A. 2014 Supp. 21-5402(a)(2). Rape is an inherently dangerous felony. See K.S.A.
2014 Supp. 21-5402(c)(1)(E).

The res gestae of a crime includes the "acts committed before, during, or
after the happening of the principal occurrence, when those acts are so closely
connected with the principal occurrence as to form, in reality, a part of the
occurrence." State v. Cameron, 300 Kan. 384, 396, 329 P.3d 1158 (2014). Deaths
"caused within the time and circumstances" of an underlying felony's res gestae
qualify as felony murders. State v. Brown, 303 Kan. 995, Syl. ¶ 2, 368 P.3d 1101
(2016). "Generally, whether the underlying felony was abandoned or completed
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before the murder is a question of fact for the jury to decide." State v. Jackson, 280
Kan. 541, 544, 124 P.3d 460 (2005).

"Under the felony-murder rule, the killing may precede, coincide with, or follow the
felony and still be considered as occurring in the perpetration of the felony offense, as
long as there is a connection in time, place, and continuity of action. As long as the
underlying felony and the killing are part of one continuous transaction, it is irrelevant for
purposes of felony murder whether the felony took place before, after, or during the
killing. In a felony murder, the killing need not occur in the midst of the commission of
the felony, as long as that felony is not merely incidental to, or an afterthought to, the
killing." 40 Am. Jur. 2d, Homicide § 68.

On similar challenges to the sufficiency of evidence to support felony murder in
previous appeals, this court has focused on whether the act causing death occurred during
the res gestae of the underlying felony; the death resulting from that act need not have
occurred immediately. See Brown, 303 Kan. at 1003 (felony-murder conviction upheld
when victim died at hospital, not during commission of underlying felony); Cameron,
300 Kan. at 386, 397 (felony-murder conviction upheld when victim died six hours after
attack); State v. Griffin, 279 Kan. 634, 641, 654, 112 P.3d 862 (2005) (statute requires
killing to occur during felony; victims died two and a half to three hours after underlying
felony completed); see also Matter of Anthony M., 63 N.Y.2d 270, 276, 284, 471 N.E.2d
447 (1984) (felony-murder conviction affirmed when victim died 10 days after
underlying felony completed). Nesbitt's focus on whether M.S.'s death occurred during
the res gestae reflects a misunderstanding of Kansas precedent and the concept of felony
murder generally. He has directed us to no law supporting his interpretation, and we have
found none.

The record contains abundant evidence conforming to the correct legal paradigm
we have identified. It supports the jury's decision that the act causing M.S.'s death
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occurred within the res gestae of the underlying felony of rape. The SANE testified that
the attack severely injured M.S., including inflicting a "large hole" in her genital area.
Other medical personnel told the jury about how M.S.'s health deteriorated significantly
after the attack and continued to do so until her death. The coroner testified that the
severe injuries sustained by M.S. led to the immobility that ultimately produced the clots
that killed her. Nesbitt's res gestae-based argument is without merit.

Nesbitt also argues that evidence of "a direct causal connection between the felony
and the homicide" is lacking. See State v. Phillips, 295 Kan. 929, 940, 287 P.3d 245
(2012). "[T]ime, distance, and the causal relationship between the underlying felony and
the killing" are three factors used in determining whether there is a direct causal
connection. 295 Kan. at 941. "A direct causal connection exists unless an extraordinary
intervening event supersedes the defendant's act and becomes the sole legal cause of
death." 295 Kan. at 941; see State v. Beltz, 305 Kan. 773, 778, 388 P.3d 93 (2017) ("Once
it has been determined that the death lies within the res gestae of the underlying crime,
. . . the direct causal connection can only be severed by an extraordinary intervening
event.").

To determine if an intervening event is extraordinary, we consider whether it was
foreseeable. See 305 Kan. at 774-75, 778-79 (upholding felony-murder conviction
stemming from drug shootout; victim not intended target of robbery, shooting); State v.
Beach, 275 Kan. 603, 613-14, 67 P.3d 121 (2003) (victim's death during drug transaction
of third person foreseeable, supporting causal connection to convict defendant).

Nesbitt primarily argues on this point that seven logical "steps" were required to
support conviction of Nesbitt on felony murder and, apparently, that their number
exceeds the limit on an intervening event that can avoid the label of "extraordinary." He
contends, "Since the State needed to prove direct causation—not simply 'but for'
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causation—insufficient evidence supports Mr. Nesbitt's felony murder conviction." The
asserted steps are:

"(1) that Mr. Nesbitt raped M.S.; (2) that the rape caused injuries; (3) that the injuries
caused pain; (4) that the pain caused immobility; (5) that immobility and injuries caused
blood clots to form in M.S.'s legs; (6) that the blood clots in M.S.'s legs caused blood
clots to form in her lungs; and (7) that pulmonary blood clotting caused M.S.'s death."

Again, this argument by Nesbitt confuses the question. We must decide whether
any event qualifies as an "extraordinary intervening" event that cuts off foreseeability of
M.S.'s death. We are looking for something that supersedes the rape as the sole legal
cause of M.S.'s death, not merely counting the foreseeable links in the causal chain.

Nesbitt's jury heard plenty of evidence supporting the continuing structural
integrity of that chain. The coroner testified about the extensive injuries caused by the
attack and said that resulting pain forced restriction of M.S.'s mobility, which was at the
root of the fatal blood clots. The jury also heard ample testimony about M.S.'s steadily
deteriorating health in the days leading up to her death. She never rallied and then
backslid because of a new, unexpected development. Rather, her demise followed
directly and inexorably from the violence inflicted upon her in the attack. This evidence
was entirely sufficient to support causation.

To the extent Nesbitt advances a secondary causation challenge based on an
inference that M.S.'s lack of mobility was a product of her personal choice rather than the
dictate of excruciating pain, we have been directed to no evidence in the record before us
to support that inference. However, even if such evidence existed, we would be
compelled by our standard of review to mimic the jury in discounting it. On a criminal
defendant's sufficiency challenge, we examine all of the evidence in the light most
favorable to the State. See Lloyd, 299 Kan. at 632. If a rational factfinder could have
14



found the defendant guilty beyond a reasonable doubt, we affirm, without reweighing
evidence or resolving evidentiary conflicts. 299 Kan. at 632.

Aggravated Battery

We move next to Nesbitt's challenge to the sufficiency of the evidence supporting
his aggravated burglary conviction.

Aggravated burglary is defined under K.S.A. 2013 Supp. 21-5807(b)(1) as:
"without authority, entering into or remaining within any building . . . in which there is a
human being with intent to commit a felony, theft or sexually motivated crime therein."
In the context of aggravated burglary, "entering into" means the "defendant crossed the
plane of a building's exterior wall." State v. Daws, 303 Kan. 785, Syl. ¶ 1, 368 P.3d 1074
(2016). The necessary intent for conviction can be shown by circumstantial evidence.
State v. Killings, 301 Kan. 214, Syl. ¶ 2, 340 P.3d 1186 (2015). "A conviction of even the
gravest offense can be based entirely on circumstantial evidence and the inferences fairly
deducible therefrom. If an inference is a reasonable one, the jury has the right to make the
inference." State v. McCaslin, 291 Kan. 697, Syl. ¶ 9, 245 P.3d 1030 (2011), overruled
on other grounds by State v. Astorga, 299 Kan. 395, 324 P.3d 1046 (2014); see State v.
Thach, 305 Kan. 72, 84, 378 P.3d 522 (2016) (circumstantial evidence adequate to
support existence of necessary intent).

Nesbitt argues there was sufficient evidence to show the attacker remained within
M.S.'s house with the intent to commit rape but insufficient evidence to show he entered
the house with intent to commit rape. In Nesbitt's view, the evidence shows only that the
intent to commit rape was present during the time the attacker was inside; the evidence
supports a crime of opportunity but not one of design.

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We reject Nesbitt's arguments. Nesbitt was charged with alternative counts of
aggravated burglary: one based on entering the house with the intent to commit theft and
one based on entering with the intent to commit a sexually motivated crime. The jury
found Nesbitt not guilty on the burglary charge based on theft and guilty on the burglary
charge based on a sexually motivated crime. These conclusions were consistent with the
trial evidence that, with the exception of the mutilated back door and disorganized master
bedroom, the house was tidy and orderly. There were no signs of someone entering the
house to commit theft, e.g., drawers and cabinets left open or their contents disturbed.
Neither the responding officers nor crime scene investigators noticed anything missing or
moved. In fact, valuable items in open view were left behind by the attacker. There was
nearly irrefutable evidence that M.S. was raped. All of this evidence was sufficient to
support the jury's logical inference that rape was the attacker's goal on entering M.S.'s
home.

Prosecutorial Error

Our review of a claim of prosecutorial error in closing arguments requires a two-
step process:

"To determine whether prosecutorial error has occurred, the appellate court must
decide whether the prosecutorial acts complained of fall outside the wide latitude
afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a
manner that does not offend the defendant's constitutional right to a fair trial. If error is
found, the appellate court must next determine whether the error prejudiced the
defendant's due process rights to a fair trial.

"In evaluating the prejudice step of our two-step analysis for reversible
prosecutorial error, appellate courts shall look no further than, and shall exclusively
apply, the traditional constitutional harmlessness inquiry demanded by Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Prosecutorial error is
16



harmless if the State 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. Sherman,
305 Kan. 88, Syl. ¶¶ 7-8, 378 P.3d 1060 (2016).

Comments from a prosecutor in closing arguments that inflame the passions or
prejudices of a jury are prohibited. State v. Adams, 292 Kan. 60, 67, 253 P.3d 5 (2011).
Arguments that move "the jury's attention from its duty to decide the case on the evidence
and controlling law" also are barred. 292 Kan. at 67.

Nesbitt contends that the State's rebuttal closing argument quoted in the factual
and procedural background section above constituted prosecutorial error. He argues the
reference to M.S. as a family "treasure" amounted to an improper attempt to inflame the
passions of the jury.

Under this court's analysis of what was then termed "prosecutorial misconduct,"
which predated our decision in Sherman, 305 Kan. at 88, we consistently reprimanded
prosecutors for making similar comments appealing to emotions of jurors. See State v.
Holt, 300 Kan. 985, 992, 336 P.3d 312 (2014) (comment on victim's children no longer
having a father improper appeal for sympathy); Adams, 292 Kan. at 67 (invoking
sympathy for family of victim impermissible); State v. Tosh, 278 Kan. 83, 92, 91 P.3d
1204 (2004) (telling jurors to protect child victim from father by finding father guilty
improper appeal to emotions), overruled on other grounds by Sherman, 305 Kan. 88;
State v. Henry, 273 Kan. 608, 640-41, 44 P.3d 466 (2002) (prosecutorial error in closing
argument: "[T]hink about Mother's Day yesterday, [how the victim's mother] must have
felt. Now [the victim] will never have a chance to be a mother, this young professional
sharp, security conscious woman.").

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In keeping with our decisions in Henry, Holt, and Adams, we hold that the
prosecutor's challenged remarks were error. They had no purpose other than inflaming
the passions of jurors, distracting them from their task.

The next question is whether the error is reversible. Nesbitt asserts the
prosecution's commentary in closing arguments had a reasonable possibility of affecting
the outcome to his prejudice because the State relied so heavily on the DNA match to link
him to the crimes. That evidence was not, he argues, overwhelming.

In deciding if a prosecutor's erroneous statement was harmless, this court looks
primarily to "the impact of the error on the verdict," and "the strength of the evidence
against the defendant" is only secondarily considered. Sherman, 305 Kan. at 111.

The State's rebuttal closing argument was, with this one exception, entirely
appropriate. The prosecutor reviewed the evidence from multiple police officers, crime
scene investigators, the coroner, hospital staff, and DNA lab staff. The prosecutor
correctly summarized controlling law and how the jury should treat the evidence. We also
note that the district judge, both contemporaneously with the objection and as part of the
instructions generally, reminded the jury that the statements made by counsel in closing
arguments were not evidence in themselves. Given the limited nature of the prosecutor's
mistake, it would be unreasonable to believe that the comment caused reversible
prejudice.

Race-Switching Instruction


Nesbitt argues that the district judge erred when he refused to give a novel
proposed jury instruction.

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This court uses a four-step analysis in reviewing jury instruction issues:

"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012)." State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202
(2012).

A race-switching exercise instruction of the type sought tells jurors in a case in
which the defendant and the victim are members of the same race to imagine the parties
as members of a different race. If, by doing this exercise, jurors find that they would
reach a different conclusion, then the instruction tells them that subconscious or implicit
racial bias may be influencing their decision. It next tells the jurors to reevaluate the case
from a neutral perspective. See Lee, Race and Self-Defense: Toward A Normative
Conception of Reasonableness, 81 Minn. L. Rev. 367, 482 (1996).

Nesbitt points to no Kansas case in which the requested instruction has been given,
and we have not found one. But several federal and state courts have addressed the issue
of using specific jury instructions to address racial bias.

Under United States Supreme Court precedent, "[t]here is no constitutional
presumption of juror bias for or against members of any particular racial or ethnic
groups." See Rosales-Lopez v. United States, 451 U.S. 182, 190, 101 S. Ct. 1629, 68 L.
Ed. 2d 22 (1981) (plurality opinion) (discussing juror prejudice in context of voir dire).
Yet federal statutory law requires an instruction admonishing a jury not to consider race
19



in the sentencing phase of a capital murder case. See 18 U.S.C. § 3593(f) (2014). The
federal instruction tells jurors not to take race, color, or religious beliefs into account in
arriving at a recommendation on a death sentence. See 18 U.S.C. § 3593(f). Jurors must
also sign a certificate affirming that they followed the instruction. See 18 U.S.C. §
3593(f). Again, this statute applies only during the sentencing phase of death penalty
cases. See United States v. Sampson, 486 F.3d 13, 25 n.4 (1st Cir. 2007) (discussing
district court's compliance with the required instruction, certificate process); United
States v. Davis, 904 F. Supp. 554, 563 (E.D. La. 1995) (discussing statute's intent that
instruction only to be used during sentencing phase, not guilt phase).

Outside the federal death penalty context, federal courts that have examined the
issue of whether to give instructions that highlight possible racial prejudice have rejected
them. See United State v. Diaz-Arias, 717 F.3d 1, 23-24 (1st Cir. 2013) (rejecting
proposed instruction telling jury to disregard "any personal feelings you may have about
the defendant's race or ethnicity, or national origin"; substantially covered in instruction
given); Jahagirdar v. United States, 597 F. Supp. 2d 198, 204 (D. Mass. 2009) (requested
racial bias instruction "might unnecessarily draw attention to the racial differences
between the defendant and the alleged victim"); United States v. Graham, 680 Fed. Appx.
489, 492 (8th Cir. 2017) (unpublished opinion) (refusing to give instruction on implicit
racial bias).

The majority of state courts addressing the issue have followed the same pattern.
Some have reasoned that the instruction could inject racial bias into a proceeding where
none existed before. State v. Roseboro, 351 N.C. 536, 555, 528 S.E.2d 1 (2000)
(expressing such fear). Others have rejected such instructions because there had been no
indication a jury's verdict reflected racial bias or simply because the instructions were not
required. See People v. Williams, 1 Cal. 5th 1166, 1202-03, 384 P.3d 1162 (2016), cert.
denied 137 S. Ct. 2301 (2017) (rejecting proposed jury instruction; "no indication [a
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juror's] brief and isolated comment improperly factored into the jury's deliberations");
People v. Smith, 30 Cal. 4th 581, 639, 68 P.3d 302 (2003) (rejecting instruction; courts
should "not interject the issue of race itself and then tell the jury to disregard it" without
reason to believe jury would employ racial bias); State v. Richardson, 342 N.C. 772, 791-
92, 467 S.E.2d 685 (1996) (rejecting proposed jury instruction because no requirement to
give it).

It is notable that the Iowa Supreme Court came to a different conclusion in State v.
Plain, 898 N.W.2d 801, 817 (Iowa 2017), holding that a failure to give a jury instruction
to disregard race was error, albeit harmless.

In that case, the defendant requested the following instruction:

"'Reach your verdict without discrimination. In reaching your verdict, you must not
consider the defendant's race, color, religious beliefs, national origin, or sex. You are not
to return a verdict for or against the defendant unless you would return the same verdict
without regard to his race, color, religious belief, national origin, or sex.'" 898 N.W.2d at
816.

The Iowa trial judge had rejected the proposed instruction because it was not in the state
bar association's model instructions, and the judge did not know of any precedent
approving the instruction or commanding that it be given. The Iowa Supreme Court
decided that the judge's legal analysis was erroneous, i.e., an abuse of discretion, because
Iowa law permits these types of cautionary instructions, provided they correctly state the
law. 898 N.W.2d at 816-17.

We do not decide today whether subconscious or implicit racial bias is as
pervasive as it is pernicious wherever and in whomever it exists. We instead reject the
instruction suggested by Nesbitt because it cannot be squared with Kansas law, and thus
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the district judge's refusal to give it was not error. While the elimination of subconscious
or implicit racial bias is a laudable goal, Kansas juries have a singular function: Deciding
cases only on evidence actually and validly presented to them. They are not to imagine
another set of facts and then allow that imagination to affect their deliberations.

We regularly chastise prosecutors for relying on facts not in evidence. See, e.g.,
State v. Akins, 298 Kan. 592, 601, 315 P.3d 868 (2014) (reprimanding prosecutor for
referring to such facts); State v. De La Torre, 300 Kan. 591, 610, 331 P.3d 815 (2014)
(prosecutor cannot create "imaginary script"). We cannot approve of telling jurors to do
the opposite. See PIK Crim. 4th 50.040, 68.010 (jurors to disregard all but facts, law).

We also note, finally, that voir dire is available to both sides of a criminal jury
case for ferreting out racial or other prejudice that should have no role in arrival at a
verdict. Counsel may use their opportunity at that stage of the proceedings to encourage
potential jurors to examine their consciences and their consciousnesses, including the
possibility of the existence of implicit bias and its unjust effects.

Cumulative Error

Cumulative error may require reversal of a defendant's conviction if—under the
totality of the circumstances—more than one error substantially prejudiced the defendant
and denied the defendant the right to a fair trial. "Notably, cumulative error will not be
found when the record fails to support the errors raised on appeal by the defendant.
Furthermore, a single error cannot constitute cumulative error." State v. Waller, 299 Kan.
707, Syl. ¶ 4, 328 P.3d 1111 (2014).

We have held that only one error occurred. The doctrine of cumulative error is
thus inapplicable to this appeal.

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CONCLUSION

Defendant Nesbitt is not entitled to reversal of his convictions. The evidence
supporting his felony murder and aggravated burglary convictions was sufficient. The
prosecutor's single error during rebuttal closing argument was harmless. And the race-
switching exercise instruction sought by Nesbitt was not legally appropriate. The
judgment of the district court is affirmed.