State v. Morton, 88,571.

• Decision Date: 26 March 2004
• Docket Number: No. 88,571.,88,571.
• Citation: 86 P.3d 535,277 Kan. 575
• Parties: STATE OF KANSAS, Appellee, v. JOSEPH DODDS MORTON, Appellant.
• Court: Kansas Supreme Court

277 Kan. 575

86 P.3d 535

STATE OF KANSAS, Appellee, v. JOSEPH DODDS MORTON, Appellant.

No. 88,571.

Supreme Court of Kansas.

Opinion filed March 26, 2004.

Janine Cox, capital appellate defender, argued the cause and was on the brief for appellant.

Jerome A. Gorman, assistant district attorney, argued the cause, and James L. Spies, assistant district attorney, Nick A. Tomasic, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.:

Defendant Joseph Dodds Morton appeals his first-degree murder and aggravated robbery convictions. He argues that he could not be convicted of first-degree murder on the combined theories of premeditation and felony murder, that the evidence on premeditation presented at his trial was insufficient, and that prosecutorial misconduct and cumulative error require reversal.

Morton was discharged from his employment at a grocery store. He decided to rob the store; he stole an unloaded gun from his mother by breaking into her locked bedroom, loaded the gun with loose bullets already in his possession, and returned to the store with the excuse of returning his uniform.

Before entering the store, Morton parked across the street to check the number of cars in the parking lot and ensure that only the manager remained inside after hours. He hid the gun between his two work shirts. When he entered, store manager David Morrell asked about Morton's box cutter and bailer key. Morton then left the store and sat in his car for approximately 2 minutes, pondering whether he should commit the crime. He then reentered the store and told Morrell he "was [t]here for the money." Morrell offered no resistance and led Morton to the store office, where money was on a desk. According to Morton, he then squeezed the trigger of the gun. He said he was not sure where he was pointing the gun and fired to scare the manager. After pulling the trigger, however, he heard the manager hit the floor. Morton left the store, took a turn in the parking lot, and then returned to the store office. He stole a video recorder and videotape, destroyed security monitors, and took a cordless phone to ensure that Morrell could not call the police. According to Morton, when he returned to the office, he saw Morrell slumped on the floor. He admitted that Morrell looked dead. He did not check him for signs of life or summon help.

Other evidence at trial demonstrated Morrell had been shot in the face from a distance of not more than three feet.

After the crime, Morton went to play billiards with friends. He told his girlfriend that he robbed the store, purchased stereo equipment for his car and 2 pounds of marijuana, and took his girlfriend shopping. A few days later, Morton offered to pay a friend to destroy the security videotape and then fled the state. He eventually confessed to the crime, making a recorded statement to the police.

At trial, the jury received the following Instruction No. 9:

"In this case, the State has charged the defendant Joseph Dodds Morton with one offense of Murder in the First Degree and has introduced evidence on two alternative theories of proving the crime.

"The State may prove murder in the first degree by proving beyond a reasonable doubt that the defendant killed David Morrell intentionally and with premeditation or in the alternative by proving beyond a reasonable doubt that the defendant killed David Morrell and that such killing was done while in the commission of a felony or in flight from attempting to commit a felony, to-wit: aggravated robbery, as fully set out in these instructions.

"Here evidence is presented on the two alternate theories of proving the crime charged, you must consider both in arriving at your verdict."

Instruction No. 10 stated, in part:

"If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty."

During closing argument, the prosecutor said:

"Was this killing premeditated? That's the second question we want to look at. And to look at that question, we look at the jury instructions. And if you remember in the jury instructions, premeditation means to have thought it over beforehand for any length of time. Premeditation does not necessarily mean that somebody has to plan it out weeks or months beforehand. And if you remember—you look at that police statement. Detective Zeigler's last question was, okay, did you plan this out last week or weeks before and he said no. But it doesn't have to be weeks or months before.

"We know he walked off the job on Friday. We don't know, though, if he started thinking about it Saturday or Sunday or Monday or Tuesday. But we do know that he started thinking about it before he got to the Save-A-Lot store. And remember one thing. Premeditation means to have thought over the matter beforehand for any length of time."

The prosecutor then gestured with her fingers as though she was firing a gun and continued: "That can be premeditation under the laws of the State of Kansas. One squeeze of the trigger is all it takes." The defense did not object.

The jury returned a guilty verdict, but its verdict form stated the jurors were "unable to agree whether the defendant is guilty of Murder in the First Degree on the theory of premeditated murder or felony murder." The jury "unanimously [found] the defendant guilty of murder in the first degree on the combined theories of premeditated murder and felony murder."

Conviction of First-Degree Murder on Combined Theories

Morton breaks this first issue in two, presenting it first as a violation of his right to a unanimous verdict and second as an error in instructions. Both challenges, when reduced to their essence, require us to decide a question of law, and our review is therefore unlimited. See State v. White, 275 Kan. 580, 597-98, 67 P.3d 138 (2003).

Like the defendant in the recent case of State v. Hoge, 276 Kan. 801, 80 P.3d 52 (2003), Morton points to language from State v. Vontress, 266 Kan. 248, 262, 970 P.2d 42 (1998), and State v. Wakefield, 267 Kan. 116, 139, 977 P.2d 941 (1999), to support this argument. Wakefield merely repeated the language from Vontress: "The Vontress court observed that as stated in the statute, premeditated murder and felony murder were separate and distinct offenses." Wakefield, 267 Kan. at 139.

This language is confusing when considered in isolation. It is inconsistent with previous and succeeding Kansas case law, as well as the reasoning and outcome of the cases in which it appears. As Justice Gernon observed in Hoge, the statement was dicta, included in Vontress without any analysis of whether premeditated murder and felony murder actually constitute separate crimes. Hoge, 276 Kan. at 809.

Before Vontress and Wakefield were decided, this court had stated clearly: "Premeditated and felony murder are not separate, distinct offenses but are two separate theories under which the crime of first-degree murder may be committed." State v. McKinney, 265 Kan. 104, Syl. ¶ 1, 961 P.2d 1 (1998); see also Hoge, 276 Kan. at 809 (premeditated murder, felony murder "merely different theories of proving the required elements of premeditation and intent for the crime of first-degree murder") (citing State v. Chism, 243 Kan. 484, 491-92, 759 P.2d 105 [1988]; State v. Matson, 260 Kan. 366, 372, 921 P.2d 790 [1996] (harsher sentence for premeditated murder is "just that, a sentence — not a separate crime"); State v. Barncord, 240 Kan. 35, 37-38, 726 P.2d 1322 [1986]; State v. McCowan, 226 Kan. 752, 759-61, 602 P.2d 1363 [1979]). In essence, the felonious conduct proved in a felony murder is a stand-in for the deliberation and premeditation usually required to be proved in a first-degree murder case. Hoge, 276 Kan. at 809 (quoting State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 [2001]).

In Vontress, the jury was presented with a verdict form similar to the one used in this case. During deliberations it marked the form to indicate that the first-degree murder conviction was based on the jury's unanimous agreement on the defendant's guilt of premeditated murder and its unanimous agreement on the defendant's guilt of felony murder. Vontress, 266 Kan. at 261-62. The defendant received the harsher sentence available only for premeditated murder. 266 Kan. at 250-51. The defendant appealed, arguing the verdict was ambiguous. We held that there was no ambiguity. The jury had found the defendant guilty under each theory of first-degree murder, and his sentence for premeditated murder was not illegal. 266 Kan. at 264.

The Wakefield jury also was presented with a verdict form similar to the one used in this case. See 267 Kan. at 137. In that case, the jury selected all three options on the form; the jurors unanimously found the defendant guilty of premeditated murder and of felony murder, but they also said they were unable to agree under which theory the defendant was guilty. Again, the defendant received the harsher sentence available only for premeditated murder. We again affirmed, holding the harsher sentence was legal because the order of the jury's options on the verdict form meant the "jury first unanimously found Wakefield guilty of premeditated murder and then unanimously found Wakefield guilty of felony murder prior to finding Wakefield guilty on the combined theories." 267 Kan. at 141.

In State v. Davis, 268 Kan. 661, 678-79, 998 P.2d 1127 (2000), the defendant argued on appeal that he was denied his right to jury unanimity on his first-degree murder conviction for aiding and abetting the crime because the jury had not agreed on either premeditation or felony murder as the theory of guilt. We recited the alternative means rule of State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]);

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