State v. Broxton

• Decision Date: 17 April 2020
• Docket Number: No. 114,675,114,675
• Citation: 461 P.3d 54
• Parties: STATE of Kansas, Appellee, v. Darrell BROXTON, Appellant.
• Court: Kansas Supreme Court

461 P.3d 54

STATE of Kansas, Appellee,

v.Darrell BROXTON, Appellant.

No. 114,675

Supreme Court of Kansas.

Opinion filed April 17, 2020.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Ethan Zipf-Sigler, assistant district attorney, argued the cause, and Jose V. Guerra, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

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

Darrell Broxton appeals from his second-degree murder, burglary, and felony theft convictions. Broxton claims the district court committed three reversible errors by (1) failing to give a felony-murder instruction; (2) excluding from evidence a document from a Florida homicide investigation; and (3) improperly scoring Broxton's prior Florida burglary conviction as a person felony.

As discussed below, we reverse the Court of Appeals' holding that a district court may elect to provide a felony-murder instruction when that crime was not charged. As such, we affirm the district court's finding that the instruction was not legally appropriate. We agree with Broxton, however, that the district court erred when it refused to admit the exculpatory document from the Florida homicide investigation into evidence on the ground it was not relevant. But, in light of the State's case at trial, we hold this error was harmless. Finally, we conclude Broxton's prior Florida burglary conviction must be scored as a nonperson felony.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2012, Peter Belmont was found dead in his home. Belmont died as a result of trauma to the back of his head. Numerous items were missing from Belmont's home, including his van. Investigators discovered DNA evidence on a bottle of bleach and a bottle of orange juice left at the scene. Later testing indicated that one of the samples contained a mixed DNA profile consistent with Broxton and the other sample contained Broxton's DNA.

Several weeks after Belmont's body was found, police pulled over Belmont's van. One of the passengers, Clifford Harris, said he had rented the van from James Hunter and Brian Keatings. Harris later identified Broxton as the man he knew as Brian Keatings. When questioned, Hunter told police that in December, Broxton had picked him up in the same van filled with televisions, stereos, and laptops. According to Hunter, he and Broxton sold several of those items and exchanged the van for crack cocaine.

Police then discovered several items from Belmont's home at Broxton's apartment, including Belmont's stereo, various Sony-branded sound equipment, a red and black Amsterdam pen, cologne, an NYU logo sweatshirt, a pair of slacks, a belt, a notebook, an envelope, a piece of paper, and a business card. The NYU sweatshirt was blood-stained in three places. DNA testing of one sample yielded a partial major profile consistent with Broxton's DNA. Another sample contained both Broxton's and Belmont's DNA.

During an interrogation, Broxton admitted he knew Belmont and claimed that he and Belmont had had a consensual sexual encounter in Belmont's van. But Broxton denied taking Belmont's possessions and claimed the items in his apartment were left by a former roommate or were purchased at Goodwill.

In addition, the investigation revealed that Broxton's mother's and sister's phones, which Broxton often used, had been used to call Belmont's number between November 1 and December 5, 2012. After December 5, the calls ceased. The calendar hanging in Belmont's kitchen included an entry noting "Darrell over" on December 5, 2012.

The State charged Broxton with first-degree premeditated murder; burglary of Belmont's van; felony theft of the van; and misdemeanor theft of Belmont's electronic equipment, clothes, and a pen. At trial, the district court instructed the jury on first-degree premeditated murder and the lesser included offense of second-degree intentional murder. Ultimately, a jury convicted Broxton of second-degree murder, burglary, and felony theft.

ANALYSIS

It was not error to refuse to give a felony-murder jury instruction .

At trial, Broxton requested a felony-murder instruction. Broxton told the court he knew "it was not charged that way, ... but there [was] certainly evidence that there was property taken." He continued that a jury could reasonably "consider this to be a robbery and a death occurring during a robbery, which would ... satisfy the requirements to find felony murder as opposed to premeditated first[-]degree murder."

The district court denied Broxton's request, ruling that a felony-murder instruction was inappropriate because the State only charged Broxton with first-degree premeditated murder. Because felony murder is not a lesser included offense of first-degree premeditated murder, the district court reasoned that such an instruction would not be appropriate.

The Court of Appeals considered Broxton's claim and held that "[c]aselaw indicate[d] that there was no legal impediment to the trial court giving a felony murder instruction here." State v. Broxton , No. 114,675, 2017 WL 5184435, at *4 (Kan. App. 2017) (unpublished opinion). It explained that "felony murder is not a lesser included offense of first-degree premeditated murder," but "a trial court may instruct the jury on felony murder even though the State only charged the defendant with premeditated first-degree murder." 2017 WL 5184435, at *4. The Court of Appeals explained that even though the district court may elect to do so, the district court is under no duty to instruct for felony murder under those circumstances. 2017 WL 5184435, at *5. It relied upon State v. Young , 277 Kan. 588, Syl. ¶ 4, 87 P.3d 308 (2004), which held that " ‘[t]he fact that felony murder is not charged in an information does not preclude an instruction when evidence supports the instruction and the defendant is not unfairly surprised by the prosecution's reliance on that theory.’ " Broxton , 2017 WL 5184435, at *4.

Finding that a felony-murder instruction "may be so instructed if the facts call for giving the instruction," the Court of Appeals examined the facts and held that such an instruction was not factually appropriate. 2017 WL 5184435, at *5-6. The panel concluded that none of the evidence indicated that Belmont's murder took place during the robbery. Broxton , 2017 WL 5184435, at *6. Thus, because the killing was not part of the res gestae of the robbery, the killing could not be felony murder.

Broxton petitioned this court for review, claiming the Court of Appeals erred when it held that a felony-murder instruction was not factually appropriate. The State cross-petitioned, arguing that the Court of Appeals erred when it held that a felony-murder instruction was legally appropriate.

When analyzing jury instruction claims, we first determine whether we " ‘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.’ " State v. McLinn , 307 Kan. 307, 317, 409 P.3d 1 (2018). Next, we consider the claim's merits " ‘to determine whether error occurred below.’ " 307 Kan. at 317, 409 P.3d 1. Finally, if error occurred at the district court, we ask whether that " ‘error requires reversal, i.e. , whether the error can be deemed harmless.’ " 307 Kan. at 317, 409 P.3d 1. The error determination requires us to consider whether the instruction was legally and factually appropriate. Appellate courts exercise unlimited review when determining whether an instruction was legally appropriate. State v. Johnson , 304 Kan. 924, 931, 376 P.3d 70 (2016).

The issue was properly preserved. Thus, we first consider whether the requested instruction was legally appropriate, and only if the answer is "yes" will we move on to a consideration of whether it was factually appropriate. A legally appropriate jury instruction " ‘fairly and accurately state[s] the applicable law, and an instruction that does not do so [is] legally infirm.’ " State v. Murrin , 309 Kan. 385, 392, 435 P.3d 1126 (2019).

The panel below held that the district court did not have a "duty" to provide a felony-murder instruction but suggested that if it elected to do so, such an instruction could have been legally appropriate. The Court of Appeals held this despite conceding that felony murder is not a lesser included offense of first-degree premeditated murder. Broxton , 2017 WL 5184435, at *5-6. The panel cited our Young decision to support its conclusion that the trial court could have instructed the jury on felony murder even though the State only charged Broxton with first-degree premeditated murder. Broxton , 2017 WL 5184435, at *4-5.

In Young , the defendant was charged with premeditated first-degree murder. The district court, however, without a request from either party but also without objection, gave a felony-murder instruction. The jury ultimately convicted Young of felony murder. On appeal, Young argued the felony-murder instruction was reversible error. Young, 277 Kan. at 593-97, 87 P.3d 308.

The Young court began its analysis by observing that the felony-murder instruction "was not a correct statement of Kansas law, because felony murder is not a ‘lesser offense’ of premeditated first-degree murder." 277 Kan. at 593, 87 P.3d 308. But the Young court permitted the instruction, after concluding that "the evidence presented at trial was plainly sufficient to support Young's felony-murder conviction." 277 Kan. at 596, 87 P.3d 308. Thus, even though the "misstatement was literally [erroneous]" it was not " ‘clearly erroneous’ because the remainder of the instruction's content and its inclusion in the case were proper." 277 Kan. at 594, 87 P.3d 308. Thus, the court concluded it was "not error to have the jury consider a felony-murder theory in the alternative to a premeditation theory, even though felony murder had not been described in the information." 277 Kan. at...