State v. Buck-Schrag

• Citation: 477 P.3d 1013
• Decision Date: 18 December 2020
• Docket Number: No. 121,203,121,203
• Parties: STATE of Kansas, Appellee, v. Zachary BUCK-SCHRAG, Appellant.
• Court: United States State Supreme Court of Kansas

477 P.3d 1013

STATE of Kansas, Appellee,

v.Zachary BUCK-SCHRAG, Appellant.

No. 121,203

Supreme Court of Kansas.

Opinion filed December 18, 2020.

Peter T. Maharry, of Kansas Appellate Defender Office, argued the cause, and was on the briefs for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was on the brief for appellee.

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

A jury convicted Zachary Buck-Schrag of first-degree felony murder, criminal discharge of a firearm at an occupied vehicle, aggravated assault, and criminal possession of a firearm. We affirm.

FACTS

On January 13, 2018, Buck-Schrag, Carissa Williams, and Michael Raines stopped at a service station on their way to a bar in Topeka, Kansas. Williams was driving her SUV, and Buck-Schrag was her passenger. Raines was in his own car. They parked both vehicles at the gas pumps, and Williams went inside to pay for gas. Travis Larsen and his friend and roommate, Bruce Reynolds, were also parked at the service station in Larsen's car. They noticed Buck-Schrag, Williams, and Raines, but were not acquainted with them. Shortly after Buck-Schrag and his friends arrived, Larsen drove out of the parking lot.

Buck-Schrag watched Larsen's car leave. When Larsen stopped at a stoplight alongside the gas station, Buck-Schrag thought he heard someone from inside the car yell something at him. He also thought he saw something long and silver that looked like a clip. After seeing this object, Buck-Schrag showed Larsen and Reynolds his own pistol. Upon seeing the weapon, Larsen pulled back into the parking lot. Raines and Buck-Schrag began walking towards the car to ask the men what they wanted, but Larsen quickly left again. By this time, Williams had finished pumping gas, so she and Buck-Schrag got into her SUV, Raines got into his car, and the three headed for the bar.

As the group drove down the street, with Raines leading and Williams and Buck-Schrag behind, they noticed Larsen's car pull in behind them. Williams changed lanes to see if Larsen was following them and Larsen also changed lanes. Buck-Schrag told Williams to turn right to try to get away from the vehicle. Williams complied and began to speed up. Larsen also turned and kept pace with Williams. Williams kept driving and made a few more turns and Larsen continued following. On her third turn, Williams' speed and the snowy conditions caused her to lose control of her SUV and she slid off of the road. Seconds later, the front driver's side of Larsen's vehicle hit the back passenger's side of Williams' SUV. Buck-Schrag immediately leaned out of his window and fired four shots at Larsen's vehicle. Buck-Schrag would eventually testify that he believed the crash was intentional and that his and Williams' lives were in danger.

Williams immediately drove away. Police were alerted to the gunshots and responded to the scene, where they found Larsen dead from a gunshot wound. Reynolds was not in the car; he had run home after the shooting. When police eventually searched the vehicle and Larsen and Reynolds' home, they found no firearms.

After the shooting, Williams and Buck-Schrag drove to Buck-Schrag's friend's house and exchanged Williams' SUV for Buck-Schrag's car. From there, they went to Buck-Schrag's mother's house where Buck-Schrag changed clothes and exchanged his car for his mother's truck. They returned Williams to her SUV and both went home.

The next morning, Buck-Schrag woke up, went to pick up some breakfast, and threw his gun away. Later that day he heard police were looking for him in connection to a murder, so he left town. He came back after a short time and turned himself in.

Williams also learned the police were looking for her, so she voluntarily came to the police station for questioning. Before she went in, she spoke with Buck-Schrag. He told her to lie about what had happened and tell the police she backed her SUV into something.

The State charged Buck-Schrag with felony murder and intentional second-degree murder as an alternative. He was also charged with aggravated assault, criminal discharge of a firearm at an occupied vehicle, and criminal possession of a firearm. Buck-Schrag filed a motion for immunity based on self-defense. The district court denied the motion after deciding there was probable cause to support a conclusion that Buck-Schrag had neither a subjective nor objectively reasonable belief that deadly force was necessary.

The jury found Buck-Schrag guilty of all counts. The court sentenced Buck-Schrag to life in prison with a minimum term of 586 months for the murder conviction. It also sentenced him to 32 months' imprisonment for the criminal discharge of a firearm conviction, 12 months' imprisonment for the aggravated assault conviction, and 8 months' imprisonment for the criminal possession conviction, all to run concurrent to the life sentence. Finally, it ordered Buck-Schrag to pay $7,000 in attorney fees.

Buck-Schrag took a timely appeal to this court.

DISCUSSION

Buck-Schrag argues the prosecutor erred by making comments during closing argument that persuaded the jury to convict based on its desire to protect the community rather than on the evidence.

We use a two-step process to analyze claims of prosecutorial error. First, we determine whether error occurred. The prosecutor committed error if " ‘the act complained of [fell] outside the wide latitude afforded to prosecutors to conduct the State's case in a way that does not offend the defendant's constitutional right to a fair trial.’ " State v. Thomas , 311 Kan. 905, 910, 468 P.3d 323 (2020) (quoting State v. Chandler , 307 Kan. 657, Syl. ¶ 6, 414 P.3d 713 [2018] ). If we find error, we move to a harmlessness analysis to "determine whether the error prejudiced the defendant's due process rights to a fair trial." 311 Kan. at 910, 468 P.3d 323 (citing Chandler , 307 Kan. 657, Syl. ¶ 6, 414 P.3d 713 ). The error was harmless if the State has shown " ‘beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record.’ " 311 Kan. at 910, 468 P.3d 323 (quoting State v. Sherman , 305 Kan. 88, 109, 378 P.3d 1060 [2016] ). In other words, " ‘there is no reasonable possibility that the error contributed to the verdict.’ " Chandler, 307 Kan. at 674, 414 P.3d 713 (quoting Sherman , 305 Kan. at 109, 378 P.3d 1060 ).

We recently reiterated the law governing prosecutorial error:

"A prosecutor has wide latitude in crafting arguments and drawing ‘reasonable inferences from the evidence but may not comment on facts outside the evidence.’ Any argument ‘must accurately reflect the evidence, accurately state the law, and cannot be "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." ’ [Citations omitted.]" State v. Longoria , 301 Kan. 489, 524, 343 P.3d 1128 (2015).

"The prosecutor is constrained from inviting the jury to rely on considerations outside the record because the jury's fundamental task is to decide a case based on a calm and dispassionate consideration of the evidence and controlling law. State v. Holt , 300 Kan. 985, 998, 336 P.3d 312 (2014) ; State v. Hall , 292 Kan. 841, 853, 257 P.3d 272 (2011) ; State v. Ruff , 252 Kan. 625, 633, 847 P.2d 1258 (1993) ; Gershman, Prosecutorial Misconduct § 11:4 (2d ed. 2019). Thus, a prosecutor's comments are improper if they encourage jurors to consider emotions, passions, or prejudices as a basis for their verdict, because emotions, passions, and prejudices are not facts. Holt , 300 Kan. at 998 (improper to encourage jurors to rely on emotions to convict); Hall , 292 Kan. at 853 (prosecutors are not allowed to inflame passions or prejudices of jurors and distract from duty to make decisions based on evidence)....

"This court has emphasized that claims of prosecutorial error are fact specific and outcomes will depend on the particulars of each case. Sherman , 305 Kan. at 110-11 ; see also United States v. Hasting , 461 U.S. 499, 508-09, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (observing that Chapman affirmatively rejected a per se rule)." Thomas , 311 Kan. at 910-11, 468 P.3d 323.

Buck-Schrag avers the following comments, made by the prosecutor during closing argument, were error:

"We might be afraid of one another from time to time. People might do things that are annoying or even troublesome. But this is not Dodge City, this is not the Wild West, and this is not Mad Max Beyond Thunderdome. We simply cannot go around killing one another with guns just because we are afraid. Please, find the defendant guilty."

Our caselaw makes it clear it is error to urge jury members to convict based on a duty to protect the community.

In State v. Finley I , 268 Kan. 557, 998 P.2d 95 (2000), the prosecutor erred by making the following comments during closing argument:

" ‘You know, they say all the time that our police department enforces our laws in this county, that's not true. It's you guys. We have people in Topeka that make our laws, we have people in my office that prosecute them, but you all have the job of enforcing them. You all can find that he committed these crimes and hold him responsible for them. We cannot tolerate this kind of drug use in our community, especially when a person dies. You have to find him guilty. Thank you.’ " Finley I , 268 Kan. at 571, 998 P.2d 95.

These remarks amounted to reversible error because they asked jurors to look outside of the evidence. This court compared them to remarks made by a prosecutor in State v. Ruff , 252 Kan. 625, 847 P.2d 1258 (1993). In Ruff , the prosecutor erred when he said to the jury, " ‘Ladies and gentlemen of the jury, do not allow this conduct to be tolerated in our county. ... Send that message, ladies and gentlemen, come back with a verdict of guilty. Thank you.’ " 252 Kan. at 631, 636, 847 P.2d 1258.

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