State v. Hall

• Decision Date: 12 August 2011
• Docket Number: No. 102,070.,102,070.
• Citation: 257 P.3d 272
• Parties: STATE of Kansas, Appellee,v.Sterling Ray HALL, III, Appellant.
• Court: Kansas Supreme Court

257 P.3d 272

STATE of Kansas, Appellee,

v.Sterling Ray HALL, III, Appellant.

No. 102,070.

Supreme Court of Kansas.

Aug. 12, 2011.

Syllabus by the Court

1. Because comments made in closing argument are not evidence, a defendant is not required to contemporaneously object to preserve a claim of prosecutorial misconduct.

2. Appellate courts apply a two-step framework in analyzing prosecutorial misconduct claims. First, the court determines whether the prosecutor's comments were outside the wide latitude allowed prosecutors in discussing the evidence. If so, then the court next considers whether those comments prejudiced the jury against the defendant and denied the defendant a fair trial.

3. In closing argument, the prosecutor may draw reasonable inferences from the evidence but may not comment upon facts outside the evidence.

4. A prosecutor is given wide latitude in the language and the manner of presentation of closing argument as long as the argument is consistent with the evidence.

5. When the prosecutor argues facts not in evidence, the first prong of the prosecutorial misconduct test is met and the court must consider whether the misstatement of facts constitutes plain error.

6. Under the facts of this case, the prosecutor did not refer to facts not in evidence or improperly mischaracterize the defendant's statement to a witness where the prosecutor's characterization reflected (1) the witness' characterization of the defendant's statement as reflected in the police report which was admitted into evidence as an exhibit at trial; and (2) the witness' own characterization of the defendant's statement at one point in her trial testimony.

7. A defendant is denied a fair trial when a prosecutor misstates the law and the facts are such that the jury could have been confused or misled by the statement.

8. Under the facts of this case, the prosecutor did not commit misconduct when he advised the jury that premeditation could be formed in “seconds, minutes, days.” Rather, the prosecutor's comment was consistent with PIK Crim.3d 56.04, the pattern instruction given to the jury, which provides: “[T]here is no specific time period required for premeditation.”

9. Under the facts of this case, the prosecutor's statement that defendant could have “form[ed] the premeditation after the pull of the first trigger, because remember, he pulls four times” was an improper statement of the law because there was no evidence that the defendant had an opportunity to premeditate after pulling the trigger the first time.

10. Prosecutors are not allowed to comment on the credibility of a witness because expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case.

11. Under the facts of this case, the prosecutor did not improperly inject his personal belief as to the defendant's guilt when he advised the jury in closing argument that he believed he had presented all of the evidence necessary to convict the defendant of first-degree murder.

12. Prosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.

13. Under the facts of this case, the prosecutor did not commit misconduct when he told the jurors in closing argument it was their responsibility to “view that evidence, not forget what happened, but expose what happened, and tell this man exactly what he's guilty of.”

14. Following State v. Ward, 292 Kan. ––––, 256 P.3d 801 (2011), we consider three factors in determining whether a prosecutor's misstatement constitutes plain error requiring reversal: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the error affected the defendant's substantial rights, meaning whether the error affected the outcome of the trial.

15. In this case, where the defendant has established an error of constitutional magnitude, it is the State's burden, as the party benefitting from the error, to prove beyond a reasonable doubt that the error did not affect the defendant's substantial rights.

16. Although the prosecutor misstated the law on premeditation as it related to the facts of this case, there is no evidence suggesting the prosecutor's conduct was gross and flagrant or exhibited ill will.

17. Under the facts of this case and in light of the trial record as a whole, the State demonstrated beyond a reasonable doubt that the prosecutor's misstatement did not affect the outcome of the trial and does not require reversal.

18. When a defendant neither requests nor objects to an instruction, an appellate court reviews the district court's failure to give the instruction under the clearly erroneous standard pursuant to K.S.A. 22–3414(3).

19. Instructions are clearly erroneous if there is a real possibility the jury would have rendered a different verdict had the instructional error not occurred.

20. In reviewing jury instructions for error, an appellate court examines the instructions as a whole, rather than isolating any one instruction, and determines whether the instructions properly and fairly state the law as applied to the facts of the case.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.Natalie A. Chalmers, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

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

In this direct appeal, Sterling Ray Hall, III, seeks reversal of his convictions of first-degree murder and criminal possession of a firearm. Hall asserts the prosecutor committed misconduct during closing argument by misstating the evidence and the law regarding the element of premeditation; by injecting his personal belief into closing argument; and by inflaming the passions of the jury by appealing to the jurors' sense of responsibility. Further, Hall claims the district court erred by failing to provide the appropriate lesser included offense instruction for second-degree murder, PIK Crim.3d 56.03. Hall also challenges the sufficiency of the evidence of his first-degree murder conviction, arguing the evidence of premeditation was insufficient to sustain the conviction, and he contends the cumulative effect of several alleged trial errors deprived him of a fair trial. Finally, he alleges his constitutional rights were violated by sentencing errors.

While we find that the prosecutor misstated the law as it related to the facts of this case regarding the defendant's ability to premeditate the killing, we conclude this error did not prejudice the defendant's right to a fair trial under the circumstances presented. We further hold the district court did not clearly err in failing to give the instruction for second-degree murder as a lesser included offense, PIK Crim.3d 56.03, and the evidence of premeditation was sufficient to support Hall's first-degree murder conviction. Finally, we find no cumulative trial or sentencing errors. Therefore, we affirm Hall's convictions and sentences.

Factual and Procedural Background

We have briefly summarized below the facts developed at trial. Additional facts will be discussed as relevant to the issues raised.

In the early evening hours of May 15, 2008, Leona Pahmahmie agreed to pick up her friend, Brenda Rowe, at an apartment complex and drive her to the Regency Inn in Topeka. When Pahmahmie, accompanied by her cousins, Keith Buskirk and Karie Wahweotten, arrived at Rowe's apartment, Rowe came out with Hall, whom Rowe identified only as her “bodyguard.” Rowe and Hall got in Pahmahmie's car, and Pahmahmie drove to the Regency Inn and parked in the motel's parking lot. While Rowe went inside to register for a room, Pahmahmie and the vehicle's three passengers waited in the vehicle. Pahmahmie remained in the driver's seat, Hall sat behind her in the back seat, Wahweotten sat in the front passenger seat, and Buskirk sat behind Wahweotten in the back seat.

Inside the motel lobby, Rowe encountered difficulties with the credit cards offered as payment for a room. Consequently, she remained inside the motel lobby for approximately 15 to 20 minutes. Meanwhile, from their vantage points in the vehicle, Pahmahmie and Buskirk could see a group of people sitting in an open corridor on the ground level several doors down from the main office. The individuals in that group included the victim, Pamela McMaster, her fiancé, Michael Scroggin, and their friend, Kenneth Blake. The three were sitting outside McMaster's motel room drinking beer and barbecuing.

After Rowe had been gone approximately 15 minutes, Hall announced he was “ready to go do something” or “ready to go.” He got out of Pahmahmie's car and stood for a moment or two near the front of the car before pulling the hood of his sweatshirt over his head. Hall then walked down the corridor where McMaster and her friends were seated, stopped directly behind McMaster, and shot her four times in the back. McMaster immediately folded over into Scroggin's lap.

Hall then ran back to the vehicle carrying a gun, jumped in, and directed Pahmahmie to “just fucking go.” Simultaneously, Rowe returned to the car from the motel office.

Pahmahmie dropped off Hall and Rowe at a nearby restaurant. After Hall and Rowe ate, they went to a motel and later to Jill Waterman's residence. There, Hall showered and changed clothes, leaving a bag of personal items in a storage room.

Two days later, police arrested Hall, Rowe, and Waterman, and then with Waterman's consent, searched Waterman's home. There, police discovered a bag containing a loaded .22 caliber handgun and some of the clothing Hall was wearing at the time of the murder. The State charged Hall with first-degree murder and criminal...