State v. Logan

• Decision Date: 20 May 2022
• Docket Number: 123,151
• Citation: 509 P.3d 598 (Table)
• Parties: STATE of Kansas, Appellee, v. John D. LOGAN Jr., Appellant.
• Court: Kansas Court of Appeals

509 P.3d 598 (Table)

STATE of Kansas, Appellee,

v.John D. LOGAN Jr., Appellant.

No. 123,151

Court of Appeals of Kansas.

Opinion filed May 20, 2022.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Atcheson, P.J., HILL and Gardner, JJ.

MEMORANDUM OPINION

Per Curiam:

John D. Logan Jr. claims the trial court failed to properly instruct his jury and two improper arguments by the prosecutor are sufficient reasons to reverse his conviction. Our review of the record persuades us that there was no clear error in the jury instructions. And one of the prosecutor's comments is harmless error and the other was an inference drawn from the evidence and was permissible. As a result, we affirm Logan's conviction.

Criminal charges follow a party, a fight, and a shooting.

Logan sometimes stayed at the apartment of Marcus Parker and his family in Topeka. At some point, Parker confronted Logan about bringing a gun into his apartment. The confrontation became a physical fight. Parker broke Logan's arm and Logan had to be hospitalized. Logan was prescribed fentanyl and morphine for his injuries. After Logan was released from the hospital the men reconciled, and Logan continued to stay at Parker's apartment.

Then, one evening, when Parker and Logan attended an outdoor party at a friend's house, Logan shot Parker in the side of the head. A Topeka police officer testified that the gun used to shoot Parker was a revolver. After he was shot, Parker grabbed Logan and fought with him until Parker passed out.

Parker was taken to the hospital and survived his injuries. Logan was also taken to the hospital after the shooting because he sustained head injuries when Parker fought with him until he passed out from the gunshot wound.

The State charged Logan with aggravated battery, criminal possession of a weapon, and attempted second-degree murder. At trial the State called several of the partygoers to testify. The witnesses testified that they saw and heard Logan shoot Parker and then heard Parker ask Logan why he shot him.

Alcohol was flowing that evening. The doctor who treated Logan the night of the shooting testified that Logan had a blood alcohol level of over .4. The doctor explained an alcohol level of .3-.35 typically leads to stupor or a coma while a level of .5 is possible death. The doctor testified if Logan drank alcohol with the pain medicine he was prescribed for his arm, the combination could alter his mental status—but the doctor did not recall Logan having anything other than alcohol in his system. There was also testimony that Logan had a blood alcohol content of .11 when he was hospitalized in early July when Parker assaulted him.

The defense called a detective from the Topeka Police Department who had interviewed Logan at the hospital after he shot Parker. The detective said Logan smelled like alcohol and could not hold a conversation or stay conscious. The defense called the first officer who arrived at the scene of the shooting to testify that Logan had trouble standing and was incoherent at times. Based on this evidence and his blood alcohol level, Logan argued that he was too intoxicated to intend to kill Parker. In other words, he was using a voluntary intoxication affirmative defense.

The defense did not request an instruction that said Logan did not have the burden of proving his affirmative defense and did not object to the lack of that instruction at trial.

The court did instruct the jury: "The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty." The court also instructed the jury that voluntary intoxication may be a defense to attempted second-degree murder. The court did not provide an instruction that Logan did not have the burden of proving his affirmative defense of voluntary intoxication.

After closing arguments, the defense moved for a mistrial based on these statements the State made in its closing argument:

• "[T]he weapon that [Logan] used is a mechanical device. It is a revolver. It has to be cocked and then it has to be fired. " (Emphasis added.)

• "Mr. Logan might be the kind of person who drinks so much that he has a very high tolerance for alcohol."

The parties adopted opposite positions on these statements. The defense argued there was no evidence about whether Logan's revolver was a double action or single action revolver so they did not know if he had to cock it and then pull the trigger for it to fire, or whether simply pulling the trigger would discharge the weapon. The State argued that the jury could use its common knowledge about how firearms work to make the connection that Logan had to cock the gun.

As for his drinking, the defense argued there was no testimony about Logan's tolerance for alcohol so the State's argument was inappropriate. The State said it never stated he had a high tolerance but said some evidence might have suggested he could have a high tolerance—which is not improper.

The court denied Logan's motion for a mistrial and noted that if he had objected when the statements were made the court could have instructed the jury to disregard them.

The court sentenced Logan to 216 months in prison. Logan timely appeals his conviction, making three arguments:

• the district court erred by failing to instruct the jury that he did not bear the burden of proof on his affirmative defense;

• the State committed error by arguing facts not in evidence; and

• the cumulative effect of these errors denied Logan a fair trial.

We will address the issues in that order.

We find no clear jury instruction error.

Logan argues that the court erred by not providing an instruction that the burden of proof does not shift to the defendant to prove an affirmative defense. See K.S.A. 2020 Supp. 21-5108(c). Logan says the district court should have given the following instruction:

"The defendant raises voluntary intoxication as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant." PIK 4th 51.050 (2013 Supp.)

Since Logan did not object at trial to the court failing to give this instruction, we review for clear error. K.S.A. 2020 Supp. 22-3414(3) ; State v. Craig , 311 Kan. 456, 464, 462 P.3d 173 (2020).

Our review of the caselaw teaches us that the Kansas Supreme Court has held that a court's failure to instruct the jury on the State's continuing burden is not clearly erroneous when the jury has been instructed on the presumption of innocence and the State's general burden of proof. State v. Buck-Shrag , 312 Kan. 540, 551-54, 477 P.3d 1013 (2020) ; State v. Cooperwood , 282 Kan. 572, 581-82, 147 P.3d 125 (2006).

We see similar facts here. Logan failed to request a continuing burden instruction for his affirmative defense and the court instructed the jury generally on the burden of proof and presumption of innocence. The State notes the prosecutor also reinforced the State's continuing burden in closing argument by saying, "[T]he State has the burden of proof."

The continuing burden instruction provided to the jury was both factually and legally appropriate because it correctly stated the law and Logan asserted an affirmative defense at trial. The issue is that Logan did not request the instruction or object to its omission at trial. The State is correct that the Kansas Supreme Court caselaw is clear that the failure to provide such an instruction is not clear error as long as the court provided a sufficient burden of proof instruction. We see no reversible error here.

We find harmless error and permissible inferences in the prosecutor's statements that Logan complains about.

Logan argues that the State erred by making two statements at trial that were not supported by the evidence: (1) that the gun Logan used to shoot Parker had to be cocked and then fired; and (2) that Logan might be the kind of person who drinks so much that he has a high tolerance for alcohol. The first statement was made to show the steps Logan took to shoot Parker—cocking the gun, pointing it at Parker's head, pulling the trigger— to prove intent. The second statement was made in response to Logan's defense that he was so intoxicated that he could not form the necessary intent to be guilty of attempted murder.

We use a two-step process to evaluate claims of prosecutorial error: error and prejudice. Under the first step of the test, appellate courts determine whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. Then, if error is discovered, the State must show beyond a reasonable doubt that the error complained of did not affect the outcome of the trial in light of the entire record, i.e., there is no reasonable possibility that the error contributed to the verdict. State v. Sherman , 305 Kan. 88, 109, 378 P.3d 1060 (2016).

When a prosecutor argues facts not in evidence, the first step of the prosecutorial error test is met. State v. Chandler , 307 Kan. 657, 678-79, 414 P.3d 713 (2018). " ‘A prosecutor has wide latitude in crafting arguments and drawing "reasonable inferences from the evidence but may not comment on facts outside the evidence." ’ " State v. Anderson , 308 Kan. 1251, 1261, 427 P.3d 847 (2018) (quoting State v. Longoria , 301 Kan. 489, 524, 343 P.3d 1128 [2015] ).

Cocking the gun

Logan argues the prosecutor's comment that the gun he used had to be cocked and fired was error because that information was not in the evidentiary record. Indeed, there was no testimony on what type of revolver Logan used or whether he had to cock the gun to shoot Parker. The State concedes that the prosecutor committed error by stating...