State v. Todd, 106,021.

• Citation: 299 Kan. 263,323 P.3d 829
• Decision Date: 25 April 2014
• Docket Number: No. 106,021.,106,021.
• Parties: STATE of Kansas, Appellee, v. Loviss TODD, Appellant.
• Court: United States State Supreme Court of Kansas

299 Kan. 263

323 P.3d 829

STATE of Kansas, Appellee,

v.Loviss TODD, Appellant.

No. 106,021.

Supreme Court of Kansas.

April 25, 2014.

Syllabus by the Court

1. Under the facts of this case, the district judge's failure to instruct the jury sua sponte on the caution it should exercise in evaluating an accomplice witness' testimony was error, but the omission was not clearly erroneous.

2. Use of the jury instruction: “If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty,” does not require reversal.

3. When the legislature expressly provides that a statutory amendment shall apply retroactively to cases pending on appeal on and after the amendment's effective date, the procedural-versus-substantive analysis employed by courts to determine retroactivity in the absence of express statutory language is unnecessary. But the legislature's power to declare a statute retroactive is not unlimited; neither the statute itself nor its retroactive application may offend the federal or state Constitutions.

4. The 2013 amendments made in K.S.A.2013 Supp. 21–5402(d) and (e) eliminated lesser included offenses of felony murder and expressly provided for retroactive application to cases pending on appeal on and after its effective date. Retroactive application of the amendment does not violate the federal Ex Post Facto Clause; the defendant was not entitled to a second-degree murder instruction.

5. A district judge should not instruct jurors that the degree of certainty expressed by an eyewitness who identifies a criminal defendant is a factor to be weighed in assessing reliability of the identification. Because the eyewitnesses in this case did not express their degree of certainty on their identifications of the defendant, inclusion of degree of certainty among the factors to be weighed by the jury was not clearly erroneous.

6. A prosecutor may not express personal opinions about the credibility or reliability of a witness, but a prosecutor may offer the jury an explanation of what it should look for in assessing witness credibility. A prosecutor also may expose bias or motive for testifying on cross-examination and, by extension, is free to argue this point to the jury if the evidence has established the facts. None of the prosecutor's statements challenged by the defendant in this case qualified as misconduct.

7. Given the evidence against defendant and the persuasive impeachment of his alibi defense in this case, two identified instruction errors do not necessitate reversal under the cumulative error doctrine.

8. A sentencing court has no authority to order any term of postrelease supervision in conjunction with an off-grid indeterminate life sentence. The lifetime postrelease supervision portion of defendant's sentence in this case must be vacated.

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

Edmond D. Brancart, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

Defendant Loviss Todd appeals his jury convictions and sentence on charges of felony murder, aggravated robbery, aggravated battery, and aggravated assault. Todd raises seven issues: (1) failure to provide a cautionary jury instruction on accomplice testimony; (2) error in the jury instruction on reasonable doubt; (3) failure to instruct the jury on second-degree murder as a lesser included instruction of felony murder; (4) error in the eyewitness identification jury instruction; (5) prosecutorial misconduct; (6) cumulative trial error; and (7) inclusion of lifetime postrelease supervision as part of his life sentence. We affirm Todd's convictions and vacate the lifetime postrelease supervision portion of his life sentence.

Factual and Procedural Background

Todd's convictions arose out of events at the Kansas City home of murder victim Vincent Green. Todd and Ayreone Alexander and two others arrived at Green's home on the morning of December 8, 2008, with the apparent purpose of settling an earlier drug dispute with Keith McFarlane, another occupant of the home. By the time Todd and Alexander and their two companions left the home, Green had been fatally shot multiple times; McFarlane also had been shot and wounded; 4 pounds of marijuana had been taken from a parked car; and McFarlane's car had been driven away.

At Todd's trial, the State called two eyewitnesses: Warren Jones, who had been a guest at the home, and McFarlane. Alexander, who agreed to cooperate with the State in exchange for reduced charges against her, also testified.

According to Jones, he was watching television and playing video games in the living room of the home when McFarlane received a phone call from someone interested in looking at a used car McFarlane had for sale. McFarlane told Green to answer the door; Todd and Alexander entered; and Todd joined Jones in the living room, where he sat with him on the couch. McFarlane then went outside to get something from his car. At that moment, Todd “stood up and pulled a pistol and told me to get on the ground.” Todd pointed the gun at Green and ordered him onto the ground as well. Jones complied. Green did not. Instead, Green walked to the back of the house and said, “[B]ro, what are you doing?” Jones then heard three gunshots followed by a male voice saying, “[G]rab the keys to the car.” After a period of time, Jones got up and saw Green's lifeless body lying face down in the kitchen. McFarlane also had been shot.

McFarlane told a similar story during his trial testimony. He said that he had spoken to Alexander several days before the shooting about a car he had for sale. Alexander stopped by the morning of the shooting and told him she was getting money together for the car. Twenty minutes later, Alexander called and said she wanted to see the car's interior. When she arrived, Todd was with her. McFarlane said he had never seen Todd before. Seconds after McFarlane went outside to check on the car, a man who had been seated in a vehicle parked outside rushed McFarlane and “pulled [a] pistol out on me, grabbed me at the back of my shirt, turned me towards the house[,] and he started walking me back toward the house.” McFarlane then heard a gunshot from inside the home, and the man who had been in the vehicle pushed McFarlane into the home and shot him. With wounds in his arm and chest, McFarlane ran into the home's basement. While he paced and bled, McFarlane heard a male voice upstairs scream, “[G]et the keys, get the keys.” Eventually, McFarlane went upstairs, where he saw Green lying on the floor, face down. McFarlane also saw Jones, and the pair started to look for their phones. McFarlane then used Jones' phone to dial 911.

On cross-examination, defense counsel questioned McFarlane about his failure to identify Todd at the preliminary hearing as the person who had arrived with Alexander. At the preliminary hearing, McFarlane had said Todd was the person who marched him back inside and shot him. McFarlane testified at trial that he had been mistaken at the preliminary hearing.

Alexander initially faced the same charges as Todd. But she entered into a plea agreement with the State, which required her to testify against Todd and plead guilty to only aggravated robbery and conspiracy to commit aggravated robbery. According to Alexander's version of events, the encounter at Green's home had little to do with a used car and had everything to do with a drug dispute.

Alexander testified that she had purchased marijuana from McFarlane “several times” in the 2 months leading up to the shooting. Three days before the shooting, she brought Todd to Green's home to buy marijuana from McFarlane. Later, Todd complained to Alexander that he had been shorted by 28 grams on the sale. Todd called Alexander several times to complain; eventually Alexander stopped answering his calls.

On the morning of the shooting, Alexander testified, she went to Green's house twice. The first time she paid McFarlane for marijuana he had sold to her the day before. And she told McFarlane that Todd had been complaining about being cheated. McFarlane told her to bring Todd over and “they'd get it straightened out.”

Alexander said she then went to a Kansas City, Missouri, gas station, where she met with Todd; his cousin, Lukie Todd; and Terry Allen. Alexander got out of the car she had been in and joined the three men in their car. Allen was in the driver's seat, and Todd and Lukie were in the backseat “smoking marijuana and snorting cocaine.” All three men were armed with handguns, and they were talking about getting Todd's money back from McFarlane. Alexander told them that McFarlane had invited Todd over to Green's home.

The foursome then traveled to Green's home. Alexander called McFarlane and told him that she and Todd were on their way. On arrival, Alexander and Todd went into the home while the two others waited in the car. Green answered the door, and Jones and McFarlane were inside. When McFarlane went outside to get something out of his trunk, Alexander watched him through window blinds. She saw Lukie approach McFarlane with a gun, grab him, and direct him back inside the home. As McFarlane and Lukie entered the door, Todd pulled out his gun and told everyone to get on the ground. Alexander said that both Jones and Green got on the ground, but Green “kept moving and he got back up and he was telling [Todd] he didn't have anything to do with it and he ran to the kitchen.” Green “had his hands up saying he didn't have anything to do with it.” As Green made his way to the kitchen, Todd shot him in the...