State v. Adams

• Decision Date: 15 April 2011
• Docket Number: No. 101,432.,101,432.
• Citation: 292 Kan. 60,253 P.3d 5
• Parties: STATE of Kansas, Appellee,v.Taurus ADAMS, Appellant.
• Court: Kansas Supreme Court

292 Kan. 60

253 P.3d 5

STATE of Kansas, Appellee,

v.Taurus ADAMS, Appellant.

No. 101,432.

Supreme Court of Kansas.

April 15, 2011.

[253 P.3d 7 , 292 Kan. 60]

Syllabus by the Court

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

2. In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 2010 Supp. 60–261 (refusal to grant new trial is not erroneous if party's substantial rights were not affected) and Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), have been met. 3. If a party does not object to a jury instruction at trial, an appellate court reviews a claim that the instruction is erroneous under the clearly erroneous standard.

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

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

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

Meryl Carver–Allmond, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.Robbin L. Wasson, senior assistant district attorney, argued the cause, and Jerome Gorman, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

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

Factual and Procedural Background

On the night of December 23, 2007, a fight broke out near a bar at The Legends in Kansas City, Kansas. Defendant Adams was at the scene with two friends, twin brothers Jeff and Jake Lichtenberger. The victim, Ratsamy Phanivong, was at the crowded bar to celebrate a friend's birthday.

Adams explained at trial that, on the day of the shooting, he was moving out of his residence into his parents' house and had loaded a few items into his car, including clothing, computer equipment, and his gun. Because the gun and ammunition were expensive, Adams did not want to leave them in the car, so he placed those items in his pockets.

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

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

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

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

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

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

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