State v. Armstrong

• Decision Date: 23 May 2014
• Docket Number: No. 103,120.,103,120.
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Antonio Jermaine ARMSTRONG, Appellant.

299 Kan. 405

324 P.3d 1052

STATE of Kansas, Appellee,

v.Antonio Jermaine ARMSTRONG, Appellant.

No. 103,120.

Supreme Court of Kansas.

May 23, 2014.

Syllabus by the Court

1. A prosecutor commits misconduct if he or she makes an argument to the jury that is contrary to K.S.A. 22–3420(2), which broadly indicates jurors are not to form or express an opinion on any subject of a trial until a case is finally submitted to them.

2. A prosecutor crosses the line of appropriate argument by making statements intended to inflame a jury's passions or prejudices or to divert the jurors' attention from their duty to decide a case on the evidence and controlling law. A prosecutor does not violate these rules or otherwise commit misconduct by acknowledging that a defendant may be found not guilty if the jury believes the defendant's evidence and defense.

3. It is improper for a prosecutor to offer his or her personal opinion as to the credibility of a witness, including the defendant. Nevertheless, a prosecutor has freedom to craft an argument that includes reasonable inferences based on the evidence and, when a case turns on which version of two conflicting stories is true, to argue certain testimony is not believable.

4. If a criminal defendant alleges prosecutorial misconduct related to a prosecution witness' violation of an order in limine, the defendant or defense counsel should inquire outside the presence of the jury whether the prosecutor warned the witness about the order. A defendant who fails to make this inquiry does not preserve the prosecutorial misconduct issue for appellate review.

5. If it is argued on appeal that a trial court erred by failing to give a lesser included offense instruction, an appellate court must necessarily look at whether the instruction was legally and factually appropriate. The inquiry as to whether it would have been legally appropriate to give the instruction is answered by whether the lesser crime is legally an included offense of the charged crime. The inquiry of whether it would have been factually appropriate to give the lesser included offense instruction is governed by the standard stated in K.S.A. 22–3414(3), which requires a determination of whether there is some evidence which would reasonably justify a conviction of the lesser included crime.

6. If it would have been legally and factually appropriate to give a jury instruction that was not requested during the trial, a clearly erroneous standard of review applies and an appellate court must review the entire record to make a de novo determination of whether it is firmly convinced that the jury would have reached a different verdict had the instructional error not occurred.

7. The wording of the pattern jury instruction for voluntary manslaughter, PIK Crim.3d 56.05, is approved.

8. A trial court need not define every word or phrase in jury instructions. It is only when the instructions as a whole would mislead the jurors or cause them to speculate that additional terms should be defined. Further, a widely used term that is readily comprehensible need not have a defining instruction.

9. K.S.A. 22–3423(1)(c) permits a trial court to declare a mistrial because of prejudicial conduct, inside or outside the courtroom, which makes it impossible to proceed with the trial without injustice to the defendant or the prosecution. When juror misconduct is alleged, application of this statute requires the trial court to make two inquiries. First, was there a fundamental failure of the proceeding, i.e., was there juror misconduct? Second, if there was juror misconduct, is it possible to continue the trial without an injustice, i.e., did the misconduct deprive the parties of a fair trial? On appeal, an appellate court reviews the trial court's determination of these two questions under an abuse of discretion standard.

10. In a cumulative error analysis, an appellate court aggregates all errors and, even if those errors would individually be considered harmless, analyzes whether their cumulative effect is such that collectively they cannot be determined to be harmless. In other words, was the defendant's right to a fair trial violated because the combined errors affected the outcome of the trial? If any one of the errors involves a constitutional violation, the harmless error standard stated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), must be applied to the determination of whether the defendant was denied a fair trial. Several considerations are relevant to the determination of whether the errors were cumulatively harmful, including how the trial court dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence.

11. A sentencing hearing may be continued or bifurcated so that restitution is ordered at one setting and the amount decided at a later setting. In such instances, a sentencing judge should specifically order the continuance or bifurcation.

Samuel D. Schirer, of Kansas Appellant Defender Office, argued the cause, and Shawn E. Minihan, of the same office, was on the brief for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

A jury convicted Antonio Jermaine Armstrong of one count of premeditated first-degree murder and one count of criminal possession of a firearm. On appeal, Armstrong raises six issues.

In addressing those issues, we first hold that Armstrong was not denied a fair trial because of prosecutorial misconduct, although two statements made by the prosecutor during closing argument exceeded the wide latitude allowed in arguing a case to a jury. Second, we hold the trial court did not commit clear error in failing to instruct the jury on unintentional but reckless second-degree murder because we are not firmly convinced the jury would have reached a different verdict had the instruction been given. Third, we reject Armstrong's claims that the trial court erred by (a) giving only one instruction on voluntary manslaughter rather than separately instructing the jury it should consider whether Armstrong acted in the heat of passion, upon a sudden quarrel, or upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person or (b) defining only heat of passion and not the other options. Fourth, we hold that the trial court did not err in finding that there was no factual support for Armstrong's motions for mistrial based on his allegations that (a) one juror had been inattentive and (b) two jurors had discussed his guilt during a court recess. Fifth, we hold the errors did not cumulatively deny Armstrong a fair trial. Finally, we hold the district court had jurisdiction to award restitution after judgment was pronounced at sentencing because the court indicated during the sentencing hearing that the proceeding would be continued for the determination of the restitution amount.

Facts and Procedural Background

The events leading to Armstrong's convictions occurred in Topeka on August 10, 2007, when James Earl Dyer, Jr., was shot to death at the home of Rhonda Shaw. Armstrong and three other individuals—Drake Kettler, Jr.; Kelvin Phillips, Jr.; and Corky A. Williams—were charged with and convicted of crimes related to Dyer's death. All four defendants appealed, and their individual appeals were argued the same day. For these related opinions, see State v. Kettler, 299 Kan. 448, 325 P.3d 1075, 2014 WL 2155347 (2014) (No. 103,272, this day decided); State v. Phillips, 299 Kan. 479, 325 P.3d 1095, 2014 WL 2155352 (2014) (No. 103,399, this day decided); and State v. Williams, 299 Kan. 509, 324 P.3d 1078, 2014 WL 2155357 (2014) (No. 103,785, this day decided).

In early 2009, all four codefendants were tried together, but the proceedings ended in a mistrial. Before the retrial, the court severed Armstrong's case from those of the other three codefendants. Armstrong's retrial occurred first, and while Armstrong's testimony from his retrial was introduced into evidence at the later joint retrial of Armstrong's codefendants, the jury in Armstrong's trial did not hear the accounts of Armstrong's codefendants. Nor did the jury hear from Shaw, who passed away before the trial. Nevertheless, the jury did hear the testimony of two individuals—Leonard Mun and Teri Johnson—who were in Shaw's house with Dyer on the day he was shot.

Johnson, who was Dyer's girlfriend, testified about the events leading up to the shooting. She began by telling the jury that she and Dyer had walked to a liquor store where they ran into Shaw and Mun. Johnson visited with Shaw, and it was agreed they would all go to Shaw's house. While Shaw shopped at the liquor store and an adjoining smoke shop, Johnson started toward Shaw's car. Before Johnson got into the car, Phillips, whom Johnson knew, approached her and asked if she was “straight,” meaning did she need to buy any drugs. Johnson told him she did not. She then got into Shaw's car, where Dyer and Mun were sitting. Phillips again approached her; he handed her his phone number and told her to call if she needed something.

After Shaw completed her shopping and Johnson, Dyer, Mun, and Shaw were driving away, Johnson looked behind her and saw Phillips and some other men running down the alley behind the liquor store and smoke shop. This was corroborated by surveillance camera recordings.

A short time after Shaw, Mun, Johnson, and Dyer arrived at Shaw's house, Shaw's home phone rang. Shaw answered the phone and said, “Yeah, yeah,” and then passed the phone to Mun. According to Mun, no one was on the line, so ...