State v. Johnson

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NOT DESIGNATED FOR PUBLICATION

No. 117,510

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRAVIS MONTEZ JOHNSON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed July 13,
2018. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., POWELL and GARDNER, JJ.

PER CURIAM: Travis Montez Johnson was convicted by a jury of one count of
murder in the second degree, a felony, and one count of criminal possession of a weapon,
a felony. He appeals his convictions, alleging an erroneous jury instruction, prosecutorial
errors, and cumulative errors. After a thorough review of the record, we affirm Johnson's
convictions.

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FACTUAL AND PROCEDURAL BACKGROUND

On the evening of February 20, 2016, Jaron Sanders invited Dominique Shugart
and her cousin, Shavontee Heally, over to his house. When the women arrived,
approximately 12 other guests were already there, including Travis Johnson and Terrance
Harvell. Sanders was flirtatious and friendly with Heally. Shugart invited another friend,
Regina Stuart, to the party, and she arrived when she got off work.

After some time at the party, Heally agreed to take Sanders to purchase additional
alcohol mixers. When the two returned to the house, Heally was ready to go home.
Despite the early morning hour, she repeatedly honked her horn to summon Shugart and
Stuart so they could leave. Shugart saw Sanders get out of Heally's vehicle. Johnson was
also leaving the party at that time; and as he passed Heally's vehicle, he made an
aggressively vulgar remark in her direction. Sanders overheard the remark and told
Johnson to show respect to others at his house; the men then got into a verbal altercation.
Harvell went out into the street and stepped between the two men in an effort to diffuse
the conflict. After a few moments, Harvell believed the conflict had cooled. Harvell
joined another guest in the yard on the passenger side of Harvell's SUV to wait for
Johnson because Johnson was riding with him.

Shortly thereafter, the argument between Johnson and Sanders resumed. Shugart
could hear the argument from inside Heally's car and wanted to leave. As Stuart was
walking toward Heally's car, she heard a gunshot. Stuart got into Heally's car, and Heally
pulled away from the house. Shugart and Stuart looked back and saw Sanders lying in the
street. Stuart then called 911 but gave a false name with the hope of avoiding further
involvement.

After the shooting, Johnson got into the back passenger seat of Harvell's SUV. He
sat there only briefly before getting out of the vehicle and running away.
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By the time police arrived, the street was vacant and dark. The police officer saw
Sanders' body lying in the street. Sanders was nonresponsive, did not have a pulse, and
his hands were cold. The police opened an investigation into Sanders' death. As part of
the investigation, police followed up on an anonymous tip that blood had been seen on
the outside of Harvell's SUV but had since been wiped off. A detective went to Harvell's
residence and processed the vehicle. In processing the vehicle, the police discovered a
blood smear on the back of the front passenger headrest. Testing of the blood smear
revealed that Sanders could not be excluded as a contributor of the blood. Harvell later
acknowledged finding blood on the outside of his SUV after the shooting, and he
admitted he cleaned it off.

Johnson was charged with one count of murder in the second degree pursuant to
K.S.A. 2015 Supp. 21-5403(a)(1), and one count of criminal possession of a weapon by a
convicted felon pursuant to K.S.A. 2015 Supp. 21-6304(a)(1). After his January 2017
trial, a jury found Johnson guilty as charged and rejected the lesser offense of voluntary
manslaughter done upon a sudden quarrel. The district court sentenced Johnson to a
controlling term in prison of 662 months.

Johnson timely appeals.

I. DID THE DISTRICT COURT ERRONEOUSLY INSTRUCT THE JURY?

Johnson first contends the district court erroneously instructed the jury by stating it
should consider the lesser included offense of voluntary manslaughter only if the jury
found that the State did not prove beyond a reasonable doubt the charge of second-degree
intentional murder. Johnson argues the jury instruction should have informed the jury to
consider the lesser included offense simultaneously with second-degree murder rather
than sequentially.

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"When analyzing jury instruction issues, we follow a three-step process:

"'(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless.' [Citation omitted.]" State v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d 877
(2015).

The State counters, under the first step of our analysis, that Johnson has failed to
preserve this issue by inviting any error made by the district court, thus barring our
consideration of the issue on the merits. It is well established that a litigant may not invite
error and then complain of the error on appeal. State v. Verser, 299 Kan. 776, 784, 326
P.3d 1046 (2014). The invited error doctrine applies when a party both fails to object and
invites the error by other actions. State v. Logsdon, 304 Kan. 3, 31, 371 P.3d 836 (2016).
Whether the doctrine of invited error applies presents a question of law over which we
exercise unlimited review. State v. Hankins, 304 Kan. 226, 230, 372 P.3d 1124 (2016).

The record on appeal reveals that Johnson filed his proposed jury instructions and
reserved the right to request additional instructions based on the evidence admitted at his
trial. His proposed instruction on voluntary manslaughter included the relevant language:
"If you do not agree that the defendant is guilty of Murder in the Second Degree[,] you
should then consider the lesser included offense of Voluntary manslaughter." Johnson's
proposed sequential language was consistent with the pattern instruction for voluntary
manslaughter. See PIK Crim. 4th 54.170 (2016 Supp.). Jury Instruction No. 6 ultimately
provided by the district court stated, in relevant part: "If you do not agree that the
defendant is guilty of Murder in the Second Degree, you should then consider the lesser
offense of Voluntary Manslaughter." The language of the district court's instruction is
identical to Johnson's proposed instruction.

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Significantly, Johnson fails to acknowledge in his brief that he proposed the very
jury instruction he now challenges on appeal. Johnson does, however, acknowledge that
defense counsel did not object to the jury instruction; thus, he argues we should review
the instruction for clear error. See K.S.A. 2017 Supp. 22-3414(3); State v. Solis, 305 Kan.
55, 65, 378 P.3d 532 (2016). However, under the invited error doctrine, "a defendant
cannot challenge an instruction, even as clearly erroneous under K.S.A. 22-3414(3),
when there has been an on-the-record agreement to the wording of the instruction at
trial." State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012). In this case, at the close
of the State's evidence, the district court inquired on the record if either party had any
objections to the proposed jury instructions. The defense objected to the language in
another jury instruction but otherwise agreed to the proposed lesser offense voluntary
manslaughter instruction. If there was any error, Johnson invited it. Accordingly, we
decline to consider this issue on appeal.

Johnson also claims the district court erroneously instructed the jury on the lesser
included offense of voluntary manslaughter by adding to the proposed jury instruction an
explanation of "sudden quarrel" rather than a definition of "heat of passion." The State,
while arguing the lesser included instruction was not clearly erroneous, once again claims
that the invited error doctrine bars consideration of this issue. We agree.

Having determined that the invited error doctrine prohibits consideration of
whether the district court erred in instructing the jury to consider the lesser included
offense simultaneously instead of sequentially—meaning that only if the jury had found
the State did not meet its burden to prove second-degree murder could it consider the
lesser included offense of voluntary manslaughter—the fact that the jury convicted
Johnson of second-degree murder makes any consideration of the propriety of the lesser
included instruction moot.

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"The mootness test has been described as a determination whether '"it is clearly
and convincingly shown the actual controversy has ended, the only judgment that could
be entered would be ineffectual for any purpose, and it would not impact any of the
parties' rights."' [Citations omitted.]" State v. Williams, 298 Kan. 1075, 1082, 319 P.3d
528 (2014).

Under Jury Instruction No. 6, the jury would have considered voluntary
manslaughter only if it the State had failed to meet its burden to prove second-degree
murder beyond a reasonable doubt. Johnson does not challenge the sufficiency of the
evidence of his conviction. Because the jury found Johnson guilty of second-degree
murder in accordance with the instructions, it did not consider the lesser included offense
of voluntary manslaughter. See State v. Llamas, 298 Kan. 246, 261, 311 P.3d 399 (2013)
(stating presumption that jury follows instructions). Consequently, even if the lesser
included offense jury instruction given by the district court were erroneous, it was
harmless error. To find an error harmless, we must be able to declare "the error did not
affect a party's substantial rights, meaning it will not or did not affect the trial's outcome."
State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221
(2012). Given that the jury convicted Johnson of the charged offense, any possible error
in the jury instruction on the lesser included offense of voluntary manslaughter did not
affect the outcome of the trial and was harmless.

II. DID PROSECUTORIAL ERROR PREJUDICE JOHNSON'S RIGHT TO A FAIR TRIAL?

Johnson also claims the prosecution committed two essential errors during closing
argument warranting reversal of his convictions: misstating the law pertaining to the
jury's consideration of the lesser included offense of voluntary manslaughter and
improperly commenting on the evidence. Johnson contends he was prejudiced by the
prosecution's errors and that his convictions must be overturned.

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Our review of an allegation of prosecutorial error involves a two-step process

"simply described as error and prejudice. [First, we] must decide whether the
prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to
conduct the State's case and . . . obtain a conviction in a manner that does not offend the
defendant's constitutional right to a fair trial. If error is found, [we] must next determine
whether the error prejudiced the defendant's due process rights to a fair trial." State v.
Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

In this harmless error inquiry, the State must demonstrate there was "'no reasonable
possibility that the error contributed to the verdict.'" 305 Kan. at 109. "Every instance of
prosecutorial error will be fact specific, and any appellate test for prejudice must likewise
allow the parties the greatest possible leeway to argue the particulars of each individual
case." 305 Kan. at 110. A contemporaneous objection is not necessary to preserve a claim
of prosecutorial error based upon comments made during closing argument. State v.
Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012). A misstatement of controlling law
must be reviewed on appeal, regardless of a timely objection at trial, to protect a
defendant's right to due process. State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006).

Prosecutors are given wide latitude in language and manner or presentation of
closing arguments, so long as the argument is consistent with the evidence. This wide
latitude includes "the freedom to craft an argument that includes reasonable inferences
based on the evidence." State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000). A
prosecutor's closing remarks fall outside the wide latitude given when he or she
comments on facts not in evidence, makes comments to divert the jury's attention from its
role as a fact-finder, or makes comments that serve no purpose other than to inflame the
passions of the jury. State v. Stimec, 297 Kan. 126, 128-29, 298 P.3d 354 (2013). Johnson
argues that the prosecution misstated the law and thus the jury "could have been confused
or misled regarding consideration of the lesser included offense." Further, Johnson
argues, the prosecutor made comments that "served to vouch for the State's case, to
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encourage jurors to consider factors outside the evidence and the law, and to appeal to
jurors' passions and prejudices."

A. Misstatement of the law

Johnson argues that the prosecutor misstated the law when she told the jury to
consider second-degree murder and the lesser included offense of voluntary manslaughter
sequentially rather than simultaneously. The State correctly observes that this argument
goes hand-in-hand with Johnson's first issue on appeal regarding propriety of the jury
instruction on the lesser included offense of voluntary manslaughter. The State also
observes that, in context, the prosecutor's statements regarding voluntary manslaughter
were in accordance with the jury instructions and comport with the current state of the
law regarding sequential consideration of the offenses at issue.

We agree with the State that Johnson's argument on whether the prosecutor
misstated the law concerning the lesser included instruction is simply another effort to
advance the theory that the jury should have considered the lesser included offense of
voluntary manslaughter simultaneously with second-degree murder. And as we have
already explained, Johnson invited any instructional error by requesting a jury instruction
that directed the jury to consider the lesser included offense sequentially. Any complaint
of "error in closing argument is precluded when the error is invited or provoked . . . by
the defendant or his counsel." State v. Reeves, 224 Kan. 90, 93-94, 577 P.2d 1175 (1978).
Therefore, any error in the prosecutor's remarks on this point was invited as well.

B. Comments on the evidence

Johnson also contends the prosecutor made improper comments on the evidence
by vouching for the State's case and arguing factors outside of the evidence. He argues
the prosecutor's comments are akin to witness credibility assessments. The State counters
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that Johnson's isolated extractions from the prosecutor's closing argument, when viewed
in context, reflect a rhetorical question technique and demonstrate no evidence of
prosecutorial error.

Johnson specifies the prosecutor's offending statements as "'we [all] know' it was
Mr. Johnson," witnesses "had '[a]bsolutely nothing' 'to gain' by naming Mr. Johnson,"
referencing a witness' demeanor on the stand, and making inferences about what certain
witnesses did not say on the stand. The prosecutor's offending comments in her closing
rebuttal argument, in context, were:

"Why do we know it's him? I want you to think about a couple of things.
Terrance has known him for over ten years. They're friends. What does he have to gain
by coming in here and telling you, yeah, it was my friend Travis. He gives you the name.
What does he have to gain? Absolutely nothing. You saw his demeanor. He's not happy
about being here. Scared to death. He tells you Travis is the only one face to face, arm's
length, with Mr. Sanders.

"Who tells us it's Travis? Dominique. She's known him since middle school. She
knows him. It was Travis who got into it with Mr. Sanders. What does she have to gain
by saying it was Travis? Absolutely nothing.

"Star. She knows it's Travis because she says so on the 911 [call]. Travis did it.

"Regina doesn't know these people. She showed up—she shows up because they
want more girls there. I don't know, maybe she doesn't want to say I can't ID because she
witnessed a homicide before. She doesn't want to even give her real name. She doesn't
want to be put in that position again. But she will tell you that there were only two people
face to face with each other. Travis, Travis, Travis, that's how we know it's him. Nothing
to gain by coming in here and telling you, one person within arm's length, and it's the
defendant.

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"One thing you did not hear from all of these people is that, hey, you know what,
you got the wrong guy. Not one of them said, you know, it wasn't him. None of them.
They just didn't want to tell you it was for self-preservation. But when you sat there and
listened, even to him, he just couldn't quite do it. Then who shot? I'm sorry, I don't
remember anything about that day. You know they all know it was him. And if you know
it, then that means I have proven this case to you beyond a reasonable doubt." (Emphasis
added.)

Johnson argues that these comments were unsworn factual assertions that went
outside the evidence, injected the prosecutor's opinion, and vouched for the State's case,
excusing the lack of identification. Johnson argues the emphasized portions demonstrate
that the prosecution made comments on the credibility of the witnesses. "A prosecutor
may not state his or her personal belief as to the reliability or credibility of testimony
given at a criminal trial." State v. Brinklow, 288 Kan. 39, Syl. ¶ 6, 200 P.3d 1225 (2009).

However, as the State persuasively argues, it is not improper to examine whether a
witness has a motive to lie, as this is a valid consideration for the jury in weighing
credibility. See State v. Ortega, 300 Kan. 761, 777, 335 P.3d 93 (2014); State v.
Anderson, No. 111,061, 2015 WL 3555353, at *2-3 (Kan. App. 2015) (unpublished
opinion). Our Supreme Court has determined that rhetorical questions such as, "What
reason do they have to lie to you?" are permitted to help the jury in assessing witness
credibility. Ortega, 300 Kan. at 775. Here, the prosecutor summarized certain testimonial
evidence to explain to the jurors how the witnesses could know Johnson was the person
who killed Sanders and rhetorically examined whether the witnesses had a motive to lie
or otherwise resist being forthcoming in their testimony.

The wide latitude afforded to prosecutors in discussing the evidence during
closing arguments "'includes at least limited room for rhetoric and persuasion, even for
eloquence and modest spectacle. It is not opening statement; it is not confined to a dry
recitation of the evidence presented.' [Citation omitted.]" State v. Kleypas, 305 Kan. 224,
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319-20, 382 P.3d 373 (2016), cert. denied 137 S. Ct. 1381 (2017). In context, the
challenged comments were consistent with the evidence, including reasonable inferences
based on that evidence, and were within the wide latitude in language and manner or
presentation of closing arguments. The State did not commit a prosecutorial error by
injecting an opinion into its closing argument or otherwise commenting on the credibility
of the witnesses.

III. DID CUMULATIVE ERRORS DENY JOHNSON A FAIR TRIAL?

As a final matter, Johnson alleges cumulative errors warrant reversal of his
convictions. However, there is no cumulative error when the record fails to support the
errors defendant raises on appeal. State v. Marshall, 303 Kan. 438, 451, 362 P.3d 587
(2015). As we have found no errors, Johnson's argument fails.

Affirmed.