State v. Phillips

• Decision Date: 26 October 2012
• Docket Number: No. 102,282.,102,282.
• Citation: 287 P.3d 245
• Parties: STATE of Kansas, Appellee, v. Michael E. PHILLIPS, Appellant.
• Court: Kansas Supreme Court

287 P.3d 245

STATE of Kansas, Appellee,

v.Michael E. PHILLIPS, Appellant.

No. 102,282.

Supreme Court of Kansas.

Oct. 26, 2012.

Syllabus by the Court

1. K.S.A. 22–3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for the objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.

2. To determine whether the giving or failing to give an instruction was clearly erroneous, the reviewing court first must determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.

3. If the reviewing court determines the district court erred in giving or failing to give a challenged jury instruction, then the clearly erroneous analysis moves to a reversibility inquiry during which the court assesses whether it is firmly convinced the jury would have reached a different verdict had the instruction error not occurred. The party claiming an instruction was clearly erroneous has the burden of establishing the degree of prejudice necessary for reversal.

4. Appellate review of an allegation concerning prosecutorial misconduct requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court determines whether those comments prejudiced the jury against the defendant and denied the defendant a fair trial. This second step requires determining whether: (a) the misconduct was gross and flagrant; (b) the misconduct showed ill will on the prosecutor's part; and (c) the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors.

5. 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.

6. If a defendant establishes error of a constitutional magnitude, the State—as the party benefitting from the error—has the burden to prove beyond a reasonable doubt that the error did not affect the defendant's substantial rights.

7. When considering a challenge to the admission of evidence, the first step is to determine whether the evidence is relevant. Relevant evidence is evidence having any tendency in reason to prove any material fact. Relevance is established by a material or logical connection between the asserted facts and the inference or result that they are intended to establish. Once relevance is established, the second step requires that the court apply the statutory rules governing the admission and exclusion of evidence. These rules are applied either as a matter of law or in the exercise of the trial court's discretion.

8. The trial court has discretion to admit evidence of a criminal defendant's flight. The trial court's decision to admit this evidence is reviewed by an appellate court using an abuse of discretion standard. When evidence of a criminal defendant's flight is involved, the better approach is to admit the flight evidence for the jury to consider, with factors such as lapse of time and the defendant's knowledge of being wanted by police going to the weight to be given the flight evidence.

9. The trial court has discretion to admit relevant evidence, including evidence of a criminal defendant's use of an alias, after weighing its probative nature against its prejudicial effect. The trial court's decision to admit this evidence is reviewed by an appellate court using an abuse of discretion standard.

10. Judicial discretion is abused if judicial action is: (a) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (b) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (c) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.

11. An inmate who has received an off-grid indeterminate life sentence can leave prison only if the successor to the Kansas Parole Board grants the inmate parole. Therefore, a sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

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

Michael Phillips directly appeals his convictions for first-degree felony murder, two counts of attempted aggravated robbery, and criminal possession of a firearm. His convictions stem from the shooting death of Miguel Moya, who Phillips said rushed at him unarmed during a scuffle. Phillips shot Moya after robbing two people at gunpoint at the same house. Phillips challenges: (1) the district court's failure to instruct the jury on the lesser included offenses of second-degree murder and voluntary manslaughter and on self-defense; (2) the State's failure to establish Moya's murder was committed during the commission of the underlying felonies; (3) alleged misstatements about the law during the State's closing argument; (4) the admission of evidence showing Phillips fled from police officers at an unrelated traffic stop and his use of an alias; and (5) his sentence imposing lifetime postrelease supervision. We affirm Phillips' convictions, but we vacate the lifetime postrelease supervision part of his sentence.

FACTUAL AND PROCEDURAL BACKGROUND

Moya was shot and killed inside a Wichita home shortly before 7 a.m. on November, 19, 2007, after a late night out with friends. According to the doctor who performed Moya's autopsy, the shot that killed him traveled downward inside his body while he was in a “recumbent” position or otherwise bending over in some way.

Police were led to Phillips after learning he may have called the house numerous times before the shooting. An arrest warrant was issued, but Phillips was not found until about 8 months later during a routine traffic stop. Phillips fled from police at the scene and once apprehended falsely told officers his name was Eric Brown.

During his interview with an investigating detective, Phillips explained that on the evening of November 18 he had planned on robbing another house. He admitted that he was carrying a gun with a potato silencer at the end of it. When that plan fell through, Phillips said he dropped off Tiffany Berry at Aaron Hardgraves' house (where Moya was shot), left to get ready to leave town, and eventually returned to the house to retrieve money Hardgraves owed him.

Phillips said that when he arrived at the house, he head-butted Hardgraves, who answered the door, and retrieved his money. Phillips said he did not take money from anyone else, though this claim was contradicted by Jose Blanco, who testified at trial that Phillips put a gun to his head and grabbed $450 out of his pocket.

After getting the money from Hardgraves, Phillips said he heard gunshots from another part of the house. He believed Berry, the woman he dropped off at the house earlier, either fired the shots or was being shot at, so he went looking for her. Phillips said he saw Berry and Moya together. He and Moya began pushing and shoving each other before Moya grabbed and rushed at him. Phillips said he started shooting at Moya, and continued shooting as he backed up to leave the house. In response to questioning by police regarding why he fired the gun at Moya, Phillips said, “I don't know, the dude kind of grabbed me, I probably shot him like three times maybe.” Phillips said he was not trying to kill Moya and did not know where he was aiming. Phillips also said, “It could have been me getting shot at.” But Phillips admitted he did not see Moya with a weapon.

No gun was ever found on Moya or in the house. Phillips said he later sold the weapon he used after the shooting. Investigators collected from the house a piece of potato, as well as gun casings.

Another eyewitness, Juan Lopez, testified at trial that he saw Moya get into a physical altercation with Berry, who shot a gun into a door Moya hid behind. As the two struggled, Lopez said Phillips appeared and then Lopez heard Berry say the “Mexicans [were] going to die.” Lopez said Moya began angrily rushing at Phillips and Berry when the two both began shooting at him. Lopez said he did not see Moya with a weapon.

Hardgraves also testified at trial. He said someone called the house asking for Berry four or five times during the night before the shooting. The Caller ID displayed the caller as “Michael Brown.” But Hardgraves testified that he believed Phillips was the caller because of what occurred later. Hardgraves testified that he did not overhear Berry's conversation or know the duration of those calls, but “Michael Brown” did not call again once Phillips arrived at the house.

Hardgraves also testified that he knew Phillips because he had installed a CD player in Phillips' car, which he recalled was a red Buick Century. During the investigation, officers learned that Phillips drove a red Buick and that he left it parked outside Hardgraves' house.

Hardgraves said...