427 P.3d 865 (Kan. 2018), 115,377, State v. Lowery

Docket Nº:115,377
Citation:427 P.3d 865
Opinion Judge:Per Curiam:
Party Name:STATE of Kansas, Appellee, v. Awnterio Dwan LOWERY, Appellant.
Attorney:Richard Ney, of Ney, Adams & Miller, of Wichita, argued the cause, and David L. Miller, of the same office, was with him on the briefs for appellant. Rachel L. Pickering, assistant solicitor general, argued the cause, and Jodi Litfin, deputy district attorney, Michael F. Kagay, district attorney,...
Case Date:October 05, 2018
Court:Supreme Court of Kansas

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427 P.3d 865 (Kan. 2018)

STATE of Kansas, Appellee,


Awnterio Dwan LOWERY, Appellant.

No. 115,377

Supreme Court of Kansas

October 5, 2018

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1. The standard of review for prosecutorial error is a two-step process in which an appellate court must first decide whether a

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prosecutorial act complained of falls 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 that error is found, the appellate court must next determine whether it prejudiced the defendant’s due process rights to a fair trial, using the constitutional harmlessness inquiry from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Prosecutorial error is harmless if the State proves beyond a reasonable doubt the error will not or did not affect the trial’s outcome in light of the entire record, i.e., when there is no reasonable possibility the error contributed to the verdict.

2. Defendants cannot circumvent the contemporaneous objection requirements of K.S.A. 60-404 by characterizing the appellate issue as prosecutorial error, rather than an evidentiary error. The caselaw exceptions allowing an issue to be heard for the first time on appeal to serve the ends of justice or to prevent a denial of a fundamental right are not routinely applicable to circumvent the contemporaneous objection requirements of K.S.A. 60-404.

3. A district court’s ruling on a motion for new trial is reviewed for an abuse of discretion. Judicial discretion is abused if judicial action is either: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.

4. A prosecutor should not comment on the credibility of the State’s own witnesses. Nevertheless, prosecutors have wide latitude to craft arguments that include reasonable inferences to be drawn from the evidence, including explaining to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State’s witnesses.

5. A "golden rule" argument, which is the suggestion by counsel that jurors should place themselves in the position of a party, a victim, or the victim’s family members, is generally improper because it encourages the jury to decide the case based on personal interest or bias rather than neutrality. Moreover, a prosecutor should not make statements intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law.

6. Although prosecutors enjoy wide latitude in crafting closing arguments, those arguments must remain consistent with and true to the evidence.

7. K.S.A. 2017 Supp. 22-3208(7) provides that a defendant has the right to be present at a hearing conducted by the court to determine the merits of any motion.

8. The invited error doctrine provides that a litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal.

9. When a defendant claims that his or her statement to law enforcement officers was not voluntary, the prosecution has the burden of proving by a preponderance of the evidence that it was voluntary. The essential inquiry in determining the voluntariness of a criminal defendant’s inculpatory statement is whether, considering the totality of the circumstances, the statement was the product of the accused’s free and independent will.

10. As a rule, a jury should not be concerned with the ultimate disposition in a criminal case, and it is error to inform it of the sentence the accused is facing if convicted.

11. When a trial is to a jury, questions of law shall be decided by the court and issues of fact shall be determined by the jury. It is error for the district court to allow evidence regarding a law enforcement officer’s explanation of the law.

12. When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, we review the decision de novo.

13. When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. Furthermore, there is no distinction between direct and circumstantial evidence in terms of probative value, and 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.

14. In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect is such that collectively they cannot be determined to be harmless. A defendant’s right to a fair trial is violated when the combined errors affected the outcome of the trial.

Appeal from Shawnee District Court; NANCY E. PARRISH, judge.

Richard Ney, of Ney, Adams & Miller, of Wichita, argued the cause, and David L. Miller, of the same office, was with him on the briefs for appellant.

Rachel L. Pickering, assistant solicitor general, argued the cause, and Jodi Litfin, deputy district attorney, Michael F. Kagay, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.


Per Curiam:

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Awnterio Dwan Lowery appeals his jury trial convictions for the premeditated first-degree murder of Tiffany Davenport-Ray (Davenport-Ray), the attempted premeditated first-degree murder of Melvin Ray (Ray), criminal discharge of a firearm at an occupied dwelling, possession of cocaine, unlawful use of drug paraphernalia, and possession of marijuana. Lowery’s homicide convictions emanated from a shooting between two vehicles travelling down Kansas Avenue in Topeka, Kansas, on the victims’ wedding night. Lowery raises eight issues, none of which require a reversal of his convictions.


In the afternoon of May 24, 2014, Ray and Davenport-Ray were married at Faith Temple Church in Topeka, Kansas. A reception followed at the Topeka Performing Arts Center (TPAC), after which the couple met family and friends at the Elks Lodge. Around 1:30 a.m. the couple left the Elks Lodge to go to a restaurant to eat, accompanied by Terrance Smith, who was catching a ride to Ray’s aunt’s house. Ray drove a Dodge Charger; Davenport-Ray sat in the front passenger seat, and Smith was on the driver’s side of the backseat. The shooting incident occurred enroute and was described differently by the trial witnesses.

According to Ray, while at a stop sign at 13th and Kansas, he noticed a sport utility vehicle (SUV) behind him. He did not recognize the SUV but was unconcerned because he assumed it was a rental car driven by an out-of-town wedding guest. Ray turned South onto Kansas Avenue, proceeded to the far right-hand lane, and crossed 17th Street when Davenport-Ray leaned her seat back and put her head on Ray’s shoulder. As he was leaned over talking to Davenport-Ray, Ray heard a window "explode." He hit his brakes, noticed the SUV next to his Charger, saw muzzle flash coming from the SUV’s front passenger seat, and heard a rapid succession of gunshots. Ray took Davenport-Ray’s pistol from the center console and returned fire into the SUV two to three times. After Ray shot back, the SUV lost control, swerved in front of the Charger, went onto the sidewalk, and crashed into a pole, albeit shots continued to come from the SUV even after the driver lost control. Ray turned onto 19th Street and asked if everyone was okay; however, Davenport-Ray did not respond. Because Davenport-Ray was shot and covered with blood, Ray drove to Stormont-Vail Hospital.

Ray explained that, at the hospital, he could not get the Charger’s passenger side door open, so he pulled Davenport-Ray out of the driver’s side. After going inside to get help, Ray told Smith to stay with Davenport-Ray and then left for an apartment complex where he thought a relative lived. In the meantime, Davenport-Ray died at the hospital from a deep graze gunshot wound that carried across her forehead.

Police apprehended Ray outside of the apartment complex and took him to the...

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