State v. Carter, 122,626

CourtUnited States State Supreme Court of Kansas
Writing for the CourtWILSON, J.
PartiesState of Kansas, Appellee, v. Johnathan Eli Carter, Appellant.
Docket Number122,626
Decision Date16 September 2022

State of Kansas, Appellee,

Johnathan Eli Carter, Appellant.

No. 122,626

Supreme Court of Kansas

September 16, 2022


1. Jury instructions must be legally appropriate by fairly and accurately stating the applicable law. They must also be factually appropriate with sufficient competent evidence to support them.

2. To prove felony murder, there must be a direct causal connection between commission of the felony and the homicide. Such causal connection is established if the homicide lies within the res gestae of the underlying crime with no extraordinary intervening event to supersede that direct causal connection.

3. Felony-murder jury instructions which only allow a guilty verdict if the jury concludes the death occurred "while" defendant was committing the underlying felony satisfy the res gestae requirement of causation.


4. If someone dies in the course of an inherently dangerous felony, all the participants in the felony are equally guilty of the felony murder no matter who committed the killing. All participants in a felony murder are principals.

5. As a principal, a participant in a felony murder cannot be an aider or abettor.

6. In this case, the use of "defendant or another" in the felony-murder jury instructions to identify who killed each victim is legally appropriate because all participants of felony murder are guilty as principals. It is factually appropriate because the evidence left some question about who fired the lethal shot as to each victim.

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge.

Sam S. Kepfield, of Hutchinson, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.



A jury convicted Johnathan Eli Carter of two counts of first-degree felony murder, one count of criminal discharge of a firearm at an occupied dwelling, and one count of criminal possession of a weapon by a convicted felon. Carter now appeals, arguing the district court erred in its jury instructions on his two felony-murder charges. For the reasons below, we find no error and affirm the district court.



On the day of the shooting, Betty Holloman was at home with her family and some friends, including Brenton Oliver. The trouble started when Jamion Wimbley drove up to drop someone off. While Wimbley was sitting in his parked car, Oliver ran outside, yelling. Wimbley and Oliver-members of rival gangs-argued for a while. Then Wimbley disengaged, told Oliver he would be back, and sped off.

Later that day, Carter-affiliated with the same gang as Wimbley-drove to Holloman's home to pick up one of the guests. After another argument broke out, Carter got out of his car holding a handgun. Holloman's husband warned Carter not to start anything, so Carter began to get back in his car, but Oliver rushed him.

Chaos then erupted as Wimbley's car came back down the street. With Wimbley were two more of Carter's associates. As Wimbley pulled up across the street from Holloman's house, someone began firing shots from the backseat window of Wimbley's car. By this point, Carter and Oliver were physically fighting. Wimbley jumped from his car to help Carter while their two associates continued firing.

In the ensuing gunfight, Holloman and Oliver were shot. Carter, Wimbley, and their associates all fled. Holloman died at the scene and Oliver died a short time later at the hospital.

An autopsy revealed that Oliver had been shot five times. Ballistics evidence showed at least four guns had been used in the shooting. Law enforcement recovered four firearms during their investigation, but they were unable to match any bullets or casings from the scene to three of the firearms. They linked six .22 caliber bullet casings found at the scene to a .22 Ruger found in the car Carter had been driving on the day of the


shooting. The coroner also extracted two .22 caliber bullets from Oliver's upper back which were linked to the same .22 Ruger as the six casings. A third .22 caliber bullet was recovered from Oliver's fatal wound. Law enforcement could not link it to a specific gun.

Police arrested Carter about a week after the shooting. In an interview, he admitted firing six shots at Oliver as Oliver was running toward Holloman's house. Carter explained that he had been at Holloman's house simply to pick up a guest and he had no stake in the ongoing arguments among the others who were at Holloman's house that day, so he was angry that he had gotten wrapped up in their conflict.

The State charged Carter with the first-degree premeditated murder of Oliver or, in the alternative, the first-degree felony murder of Oliver; the first-degree felony murder of Holloman; criminal discharge of a firearm at an occupied dwelling; and criminal possession of a weapon by a convicted felon.

The jury convicted Carter of the felony murder of Oliver; the felony murder of Holloman; criminal discharge of a firearm; and criminal possession of a weapon. Separate juries also convicted Wimbley and his passengers of crimes arising from Holloman's and Oliver's deaths. See State v. Wimbley, 313 Kan. 1029, 1031, 493 P.3d 951 (2021); State v. [Quincy] Carter, 312 Kan. 526, 528, 477 P.3d 1004 (2020); State v. [Brent] Carter, 311 Kan. 783, 787-88, 466 P.3d 1180 (2020). Carter timely appeals.


Carter challenges the elements instructions for his felony-murder charges. He asserts those instructions were erroneous because they contained no language on res gestae or causation. Thus, he asserts the jury did not have to find a causal connection between the underlying felony of criminal discharge of a firearm and the killing of Oliver


and Holloman. He further argues that this asserted error was not harmless because the jury may have convicted him for the killings even if he did not fire the fatal shot.

Standard of Review and Preservation

We follow a three-step process when analyzing jury instruction issues. First, we determine whether we can or should review the issue-that is, whether there are any jurisdictional or preservation problems. Second, we consider the merits to determine whether an error occurred at the district court level. Third, if an error has occurred, we assess whether that error requires reversal. Whether a party has properly preserved an instructional issue determines the standard of review for reversibility on the third step. State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

Jurisdiction is proper under K.S.A. 2021 Supp. 22-3601. Because Carter objected below, we review his jury instruction claims under the nonconstitutional, or statutory, harmless error standard, which is the standard of review for a preserved instruction issue. See State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012) (under nonconstitutional harmless error standard, party benefitting from error must show there is no reasonable probability error affected the trial's outcome in light of the entire record). The parties agree that this is the appropriate standard of review.

When reviewing alleged jury instruction errors, we must determine whether the instructions given were both legally and factually appropriate. For an instruction to be legally appropriate, it must fairly and accurately state the applicable law. State v. McDaniel, 306 Kan. 595, 615, 395 P.3d 429 (2017). We exercise unlimited review in determining whether an instruction was legally appropriate. State v. Johnson, 304 Kan. 924, 931-32, 379 P.3d 70 (2016). For an instruction to be factually appropriate, there


must be sufficient evidence-viewed in a light most favorable to the requesting party-to support the jury instruction. State v. Bodine, 313 Kan. 378, 386, 486 P.3d 551 (2021).

When analyzing whether instruction error has occurred, this court does not look at one instruction in isolation but considers the instructions as a whole. State v. Llamas, 298 Kan. 246, 261, 311 P.3d 399 (2013). "If the instructions properly and fairly state the law as applied to the facts in a case, and the jury could not have been reasonably misled by them, those instructions will not result in reversible error even if they were in some manner erroneous." State v. Craig, 311 Kan. 456, 461, 462 P.3d 173, cert. denied 141 S.Ct. 918 (2020).


The district court gave the following felony-murder instructions at trial:

"INSTRUCTION 5 (Theory 1(b))
"Johnathan Carter is charged in Count

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